OforttfU ICam i'rl^oal Sltbratg ir I « A,-, .?J?1"^" University Library KJA 147.H94S9 1885 A f ys'ematic and historical exposition o 3 1924 021 197 235 ^%\ Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924021197235 EOMAN LAW. A Systematic and Historical Exposition OF ROMAN LAW Jit tlu ©wltr of a flIoJe. BY W. A. HUNTER, M.A., LL.D., OF THE MIDDLE TEMPLE, BAKEISTEK-AT-LAVV. EMBODYING THE INSTITUTES OF GAIUS AJTB THE INSTITUTES OF JUSTINIAN, TRANSLATED INTO ENGLISH BY J. ASHTON CROSS, B.A. OF BALLIOL COLLEGE, OXFORD, AND OF THE MIDDLE TEMl'LE, BAEKISTER-AT-LAW. REVISED AND ENLARGED. LONDON: WILLIAM MAXWELL & SON, 8 BELL YARD, TEMPLE BAR, W. C. HODGES, FIGGIS, & CO., and E. POxNSONBY, DUBLIN ; THACKER, SPINK, & CO., CALCUTTA; C. F. MAXWELL, MELBOURNE and SYDNEY. MDCCCLXXXV. COLSTON AND SON, PKINTEBS, EDINBCBGH. PREFACE TO THE SECOND EDITION. The object of this work is to present, in a clear, syste- matic arrangement, so much of the Digest and Code of Justinian as is likely to be of use to students of modern law. At the same time, the leading steps in the evolution of Eoman Law, from the time of the XII Tables to Justinian, are set forth. For the convenience of students, a translation of the Institutes of Justinian, and (where any difference exists) of the Institutes of Gains, is embodied in the text as part of the exposition. The passages taken from Gaius and Justinian are distinguished by a diiference of type. It has not been deemed advisable to translate Latin technical phrases by doubtful English equivalents. No one can hope to master the doctrines of the Eoman jurists without some acquaintance with their technical language. It has therefore been thought best to familiarise the reader with the Latin terms by retaining them in the original, along with paraphrase or explanation. The text of Huschke has been almost invariably followed ; and as that is published in a cheap and convenient form, it has been determined not to print the Institutes in Latin. Studemund's re- vision of Gaius has been followed, where it makes any substantial difference in the meaning. In the present edition, a full but concise account of VI PREFACE. the External History of Eoman Law, from the pen of Professor Murison, University College, London, gives completeness to the work as a systematic exposition of Eoman Law. The chief alterations in the text relate to the topics of Possession, Correality and Bonorum Possessio. The chapter on Possession has been entirely rewritten and much enlarged. The accidental and anomalous character of the Eoman doctrine of Possession has now, it is hoped, been clearly and fully demonstrated. Errors and misprints in the first edition — many of which were brought to my notice by the kindness of readers— have been corrected. Fountain Court, TEjirLE, January 1885. TABLE OP COI^TEI^TS. INTRODUCTORY. A Short Histokt op Eoman Law, 1-121. Classification of Roman Law, 122-142. BOOK I. RIGHTS IN REM. FIRST DIVISION. RIGHTS IN REM IN RESPECT OF ONE'S PERSONALITY, 145-156. SECOND DIVISION". RIGHTS IN REM IN RESPECT OP OTHER HUMAN BEINGS. 1. Slavery, 157-188. II. The Paternal Power. Patuta PoteSTAS, 188-222. IIL The Marital Power. Manus, 222-227. IV. ManCIPIVM, 227-230. THIKD DIVISION. RIGHTS IN REM IN RESPECT OF ANIMALS AND THINGS. FIRST SUB-DIVISION. Independent Rights, i.e., Rights cheated for their own Sake. First. — Absolute Ownership. I. Dominium, 231-340. XL Possessio, 341-393. Second. — Rights Indefinite in point of User, but limited in Duration. (Personal Servitudes), 394-396. I. l/susfructus, 396-409. XL Usus, 409-411. III. HaUtatio, 411. XV. Operae Servovum, 411, V. Precarium, 411-412. Vlll CONTENTS. Third — Eights Definite in point of User, unlimited in Duration. (Praedial Ser- vitudes,) 412426. i^oMrtA.— Perpetual Leases. Emphyteusis Hornblowers, J None j* 100,000 ases, oT-i < pounds of copper, > C and upwards J None 7S,ooo to 100,000 ases 50,000 to 75,000 ases 25,000 to 50,000 ases (■ r 1 ,000 (Dionysius \ I says 12,500) ases j 6 Patrician (old)+i2 Plebeian Cnew)=i8'' 40 Seniores + 40 Juniores = 80 ■ «= 10 Seniores + 10 Juniores = 20 10 Seniores + 10 Juniores = 20 10 Seniores + 10 Juniores — 20 15 Seniores -f- 15 Juniores = 30 "j >-ioo 93 /^Full suit : helA met, large round - shield, cuirass, >- greaves — all of (^ bronze ) Fabri bore no j- Helmet, lighter -> < oblong shield, r \ greaves J f Helmet, lia:hter "i \ oblong shield J { None. ): { None- } J Long spear \ and sword arms /Long spear \ and sword J L©ng spear t and sword I javelin f Slings and \ stones, &c. Military Centuries, . 193 Those whose census did not amount to 11.000 ases formed one century, and were (ordinarily) exempt from military service, . . i Total Number of Centuries, 194 Dionysius gives 193 centuries, omitting Livy's Acctmi. He places the Fabn with the Second Class, and the Trumpeters, etc. (only two centuries) with the Fourth Class ; and he makes a Sixth Class out of Livy's extra century. These last- mentioned citizens were called Proletarii (men of no substance, mere "children- begetters ; " afterwards of substance estimated under 1500 ases), and CapiU censi (men of no substance, merely " counted by the head "). lO A SHORT HISTORY OF ROMAN LAW. The army {exercitus) thus constituted, whether immediately or gradually, came at last to act as a national assembly. The vote was taken by centuries — the knights voting first (and the senators with them), the classes follow- ing in order; and, as soon as a majority had voted in favour of a propo- sition submitted to the assembly, the voting ceased. The fact that the knights and the first class together commanded a majority indicates how decidedly the chief power yet remained in the hands of the wealthy and the few ; for the lower classes must have been much the more numerous. The comitia centuriata practically superseded the cojniiia atriaia; but its power was long formally hmited in two ways— (i) no measure could, in usual course, be submitted to it without the sanction of the senate ; and (2) no measure it passed became law until sanctioned by patres (the comitia curiata, or, rather, the senate). Local Tribes. — To Servius Tullius is ascribed also the division of the plebeians into local tribes — fhe city into four tribes, the country into an uncer- tain number, perhaps not over sixteen. Under the republic the number rose to thirty-five. The tribes at first discussed and settled the purely local tribal affairs. Their meetings di-d not assume the form of a regular Assembly of the Tribes daring the regal period. This division was intended purely for practical convenience, and superseded the older religious arrangement whereby a district was grouped round a central place of sacrifice. Religion. — The regal period was marked by very strong religious feeling, expressed in simple and inexpensive ceremonies and ritual. Nothing could be done in private or in public Ufe without consultation of the gods. " The whole of nature was to the Romans pervaded by divine power. A simple spear— even a rough stone — sufficed as a symbol ; a consecrated space, a sacrificial hearth, as temple or altar. For 170 years, it is said, Rome knew no religious images." (Ihne, Roman History, I. 119 (Bk. I. ch. xiii.)). Every temple had a priest, to perform the sacred rites, as well as a sacristan ; but every magistrate, in the course of his official duties, and every private citizen, within his own house, performed religious rites. A few public priests were held in high reverence. There were three colleges or guilds of priests or rather of "professors of theology" — the pontiffs, the augurs, and the fetials. The pontiffs were the most intimately connected with the law. In the earliest times they were in exclusive possession of the civil as well as of the religious law. They alone regulated the calendar, and determined the dies fasti, on which alone legal business could be lawfully transacted ; thev alone were in possession of the technical forms according to which lawsuits must be conducted ; they convoked the assembly of the wards when wills were to be received or adoption (arrogatio) was to take place. In some cases of deep moral offence they might even pronounce sentence of death ; but a right of appeal lay to the people. In spite of the intensity of Roman religious feelino- the reUgion of the state was always absolutely subject to the political authority. II CHAPTER II. EARLY REPUBLICAN INSTITUTIONS, TO THE TWELVE TABLES. (B.C. S09-449-) n^HE Political Revolution. — The expulsion of the kings and the establish- ment of the Republic is dated B.C. 509, some two and a-half centuries after the reported foundation of the city. Whatever inferences may be drawn, neither the cause nor the course of the revolution can be stated with confi- dence, and it is not likely that the republic at once emerged full-grown, but probably it rather passed into settled form through some dubious period of dictatorial government. The immediate result was the lodgment of exclusive power in the hands of the patricians. " What the patricians gained was gained at the expense, not of the community, but of the magistrates' power.'' The plebeians were not eligible for any of the offices or honours of the state ; they were excluded from the auspices, and even from knowledge of the laws ; they could not lawfully intermarry with patricians ; and they possessed practically no influence in the assembly of the centuries. To them the revolution was directly helpful only in so far as it enabled them to feel such power as they had, and taught them a political lesson. Little more than half a century was to elapse before their steady and persistent struggles com- pelled the patricians to recognise special plebeian magistrates, armed with far-reaching powers for the legal protection of their interests. The Assembly of the Centuries {Comitia Centuriata). — The assembly of the centuries had now entered practically upon the functions of the assembly of wards, superseding it in all respects, except in the matter of certain un- avoidable formalities, which lay under a strong religious sanction. It was the sovereign power in the state ; it elected the chief magistrates (and, indirectly through them, the senate), it passed the laws, it decided questions of peace and war, and it formed a court of final appeal in capital cases. " The de facto influence of the aristocracy, exercised by the magistrates and the senate, had no independent legal foundation, but was always dependent on the will of the people." (Ihne.) The comitia centtiriata embraced the whole body of the citizens, plebeian as well as patrician, each voting accord- ing to his census ; but, in spite of the appearance of pohtical equality, the power lay really with the patricians. For measures submitted to the comitia centuriata during the next century and a half could not pass into law without patrician or senatorial sanction. The Consuls. — In place of the king there were now elected by the comitia centuriata two consuls' as joint chief magistrates. Naturally, at first, they were of patrician rank.^ As security against a return to regal and tyrannical government, they held office only for one year, and, although each possessed 1 Dowti to B.C. 449 the designation was not comulea ("colleagues"), but praitores ("goers before," "leaders"). ■ " Till B.C. 366 the consuls were always patricians. 12 A SHORT HISTORY OF ROMAN LAW. supreme power, neither could act alone in opposition to the will of his col- league. Their powers were the powers of the kings, more or less modified ; but, as time went on, many of the original functions of the consuls were dis- tributed to other officials, and curtailed by the rising influence of the ple- beians. The priestly functions of the king were at once transferred to a special officer {rex sacroricm, or rex sacrificulus), who was excluded from all political offices, and officially subordinated to the chief pontiff; but this was no loss of power to the chief magistrates, who were always able to bend religion to what they considered to be the true service of the state. The nomination of the priests, however, did not remain with the consuls. The consuls were invested with the supreme military power. As civil heads of the state, they convoked the senate and the assemblies of the people, con- ducted the business of the meetings, and directed the executive administra- tion. As judges, the consuls administered justice, both in civil and in criminal cases, to patricians and plebeians equally, either in person or through delegates. But in capital cases, while plebeians were tried by the consuls, patricians were tried before the comitia centuriaiaj the plebeians, however, had the right of appeal from the judgment of the consuls, and, at a later time, the tribunes might interpose on their behalf In certain cases the delegation of the consul's theoretical jurisdiction was prescribed. It is probable, for example, that at this period the right of a magistrate, after the adjustment of a cause, to commit to a private person the investigation of its merits, was converted into an obligation to do so. Besides these parts of civil processes, there were delegated such criminal cases as the king had appointed the two "trackers of murder" {guastores paricidn)io\mes\Ag2itQ ; and to them was added the charge of the state-chest and of the state-archives. These latter functions were devolved on the Quaestors {gucssiores), who now became regular annual magistrates ; on the other hand, there were cases where only the personal action of the consul was permitted ; for example, he could not delegate the adjustment of a civil process. The consular exercise of judicial powers ceased, or became quite exceptional, on the establishment of the praetorship. Similarly, the censors, on their appointment, relieved the consuls of other portions of their functions. In international business the consuls represented the state, but all their agreements required the sanc- tion of the senate. In connection with their own official business, the consuls issued proclamations or orders {edicld). Such edicts, or commands of a magistrate not based on a law, were recognised as valid during the magistrate's tenure of office. If approved by his successor, they might be continued, either unchanged or amended, also during his tenure of office. During the regal life-presidency, edicts would be apt to become established as laws. Under the annual magistracy, there was opportunity for frequent revision and more abundant suggestion, leading to a rapid development of law, and securing a more certain administration of justice. The Seimte. — The senate remained for a long time a purely patrician body ; "a whole century elapses after the beginning of the republic before we find a single plebeian in the senate." It had no independent legislative or executive power, but was simply an administrative council, appointed, convened, and presided over by the consuls. It advised the consuls when EARLY REPUBLICAN INSTITUTIONS. 1 3 they thought fit to ask its advice, but it had no legal or formal means of con- trolling their action. " Yet, owing to the annual change of consuls, and the great influence which the senate, as a permanent body, exercised on the election of consuls, the practical result was, that, in all essential and im- portant questions, the senate decided the policy which the consuls had no alternative but to adopt." {lhne,Ro7nan History,!. 134-137.) It underwent no legal change, however, at the revolution. In usual course, the consul laid a proposition before the senate, which, after discussion, adopted a resolution {senatus-consuUuni) on the subject. This resolution one of the magistrates (consuls) laid before the people in the comitia centuriaia. If approved by the people, it returned to the senate, and the confirmation of the senate {patrum auctoritas) gave it the force of law. This senatorial right of confirmation was of especial importance in cases where the magistrates laid a proposition before the people without previously submitting it to the senate. It was a great bulwark of patrician predominance.' The Valerian Laws. — One of the earliest of the consuls, P. Valerius Publicola, in B.C. 508, proposed to the comitia centuriata and carried certain important enactments suggested by the circumstances of the revolution. The most popular of these were the following two : — (i) that whoever should attempt to obtain royal power should be devoted, person and property, to the infernal gods — a substantial security for regular annual magistrates ; and (2) a law of appeal, securing to every citizen the right of appeal to the comitia centuriata from a sentence of death or scourging^ pronounced by a magistrate (that is, in the first instance, a consul). This Valerian law of appeal has been called the Roman Habeas Corpus Act. As regards patri- cians, an identical (unwritten) law probably existed under the kings ; but if it did, it must have been grossly ignored. As regards plebeians, Ihne main- tains that the law did not extend to them ; and that " it was this denial of justice which forced the plebeian class to create for themselves in the Tribunes of the people legal protectors of their own."* This may be the fact, practically, considering the overwhelming power of the patricians in the comitia centuriata; but, in form, there seems to be no reason why they should not have been, and we apprehend they were, included in the right of appeal. The law did' not apply to strangers or to slaves ; it did not interfere vi'ith the power of the house-father ; and it did not operate beyond a mile from the city. The Tribunes of the Plebeians. — Whether the tribunate took origin in the ' The fatrum auctoritas was reduced to a mere formality, as to legislation, by a lex PiMilia, B.C. 339, and as to the election of magistrates, by thefea: Mienia, B.C. 287 (?). Monimsen, I. 265 (Bk. 11. ch. i.), considers patres, not as the senate, but as "a convention of patricians." Others regard them as the comitia curiata. ' This right of appeal was extended to cases of heavy fines some time before B.C. 451. ' Ihne, Roman History, I. 141 (Bk. ir. ch. i.) Mommsen, I. 267 (Bk. 11. ch. i.), includes the whole of the plebeians, as well as the patricians, in the right of appeal. On the other hand, Dr Smith's Smaller Diet, of Antiqq. {Leges Valerice) argues that " this law probably related only to the plebeians, to whom it gave the right of appeal to the plebeian tribes, and not to the centuries. " 14 A SHORT HISTORY OF ROMAN LAW. exceeding poverty of the poor, and more immediately in the strict enforce- ment of the law of debt against the farmers at large, and the intolerable oppression of the wealthy and patrician, or whether it was solely an out- come of the class-struggle for larger and more assured political privileges, the plebeians appear to have wrung from the patricians about B.C. 494 the right of legal protection through special plebeian officers, called Tribunes of the Plebeians. At first two tribunes seem to have been appointed ; pre- sently (B.C. 471) the number was increased to five, and soon afterwards (B.C. 457) to ten, which remained the number down to the end of the empire. It is not easy to believe that they were elected even at first by the comitia curiata, or even by the comitia centuriata, except by way of mere formal confirmation ; at any rate, from B.C. 471 they were elected in accord- ance with the lex Publilia, by the Assembly of Tribes {co)nitia tribnta) — a body that had hitherto consisted formally of patricians and plebeians accord- ing to their local divisions, although the patricians had ignored its meetings, but that henceforward consisted of plebeians alone, the patricians being now definitively excluded. The tribunes had no military or other secular means of enforcing their orders, except the services of a single messenger or attendant {viator). But the office and the person of the tribune were guarded by the strongest sanctions of religion, which was but a covert way of legalising the rough and ready application of whatever popular force or violence might be needed to support his authority. Originally the sole function of the tribunes was to protect plebeians from injustice and to shelter them from violence. This they accomplished by merely forbidding the injurious action, by pronouncing the word Veto. ' Their power was thus solely prohibitive, — but unlimited, for even the consul had to submit to their veto. It grew rapidly, however. The veto was extended to all acts of the executive wherein the tribunes chose to see danger to plebeian interests. The comitia tributa also was active, and disdained to confine itself to local business, as in its earlier days. Its resolutions, however, were not yet in themselves legally binding on the whole people ; their importance lay in their being the expression of the will of the great majority of the people. Though the tribunes at first were only privileged to watch the proceedings of the senate, sitting on benches outside the door of the senate-house, they were by-and-by to find entrance, and liberty to address the house. The power of the tribunes at no time extended further than the first milestone from the city. Thus it was powerless against the military imperium — that is, against the authority of the dictator, or of the consul beyond the limits mentioned. The doors of the tribunes' houses stood open day and night, to affisrd unimpeded access to plebeians requiring their aid. The chief limitation of their power lay in the right of mutual veto ; for any one tribune might veto the order of a fellow-tribune as well as of a consul. Hence the increase of their numbers would increase the patricians' chances of being able to neutralise their power by gaining over one of their number. But probably the mutual veto was a development of a later time than the first part of the fifth century B.C. ' This act was called their " intercession," or interference (intercedere, intercessio). EARLY REPUBLICAN INSTITUTIONS. 15 The ^diles. — At the same time as the tribunes were first elected, two jEdiies also were appointed, as their assistants, holding towards them some- what the same relation as the quKstors held towards the consuls. The persons of the asdiles were similarly inviolable. The primary duty assigned to them was the charge of the temple where the resolutions of the tribes (and, after B.C. 446, the decrees of the senate) were deposited. Probably this arrangement was considered necessary to^ secure that the tablets con- taining the laws should not be tampered with in a sense adverse to plebeian interests. The ffidiles also possessed inferior judicial power, extending to the imposition of fines. " Judices Decemviri." — With the tribunes a:nd the aediles- are later men- tioned as invested with inviolability /k^zV^j decemviri. Whether these words indicate one or two classes has been much disputed, as well as what class or classes are intended. The decemviri were certainly plebeian officers ; and, if Livy's account is to be accepted, they were probably decemviri stlitibus judicandis. See further under Centumviri^ p. 49. The Decemvirs. — The constant clash of co-ordinate' juTisdictions, and the constant operation of acrid political bias, corrupted and reduced to miser- able uncertainty the administration of the law. It was useless for the plebeians to possess special officers for their legal protection, if the interfer- ence of the tribunes could be thwarted by the opportune production of a forgotten or wholly unknown law by the representatives of the patricians. Such written laws as existed, and the law of custom, which was chiefly followed in legal proceedings, were guarded by the patricians, with the intense jealousy of self-preservation, and under the veil of religious mystery, from the knowledge of the plebeians. This state of matters could no longer be endured. Accordingly, in B.C. 462, Terentilius, a tribune, proposed a bill for the election of five (plebeian) commissioners to draw up laws defining and regulating the powers of the consuls. This the patricians resisted with all their might. Smaller concessions were futile. In B.C. 457 the tribunes were increased from five to ten ;. in B.C. 456 certain lands in the possession of patricians were resumed by the state, and portioned out to plebeians ; and in B.C. 454 the consuls themselves proposed to the comitia centuriata a bill limiting the amount of the fines that they should have a right to impose.' At length, in B.C. 452 a bill was carried sanctioning the appointment of ten commissioners for one year, with sole and supreme power, for the enlarged purpose of compiling a complete code of laws. Next year, B.C. 451, the ten commissioners {decemviri legibus scribendis) took office, with absolute power,' ^ It is also alleged that in B.C. 454 the patricians agreed to the despatch of three com- missioners to Athens, to bring home a copy of the laws of Solon, and such information as they could obtain regarding the laws and customs of other Greek states ; and that a portion at least of such foreign laws was incorporated in the Ten Tables of B.O. 450. But this story may safely be neglected. Liv. iii. 31. Lewis, Credibility of Early Soman History, ii. 222. ' There was, strictly, no appeal from their decisions. Liv. iir. 32. Still the first decemvirs are said to have permitted an appeal to a colleague, and to have referred certain questions to the people. Liv. iii. S6. 1 6 A SHORT HISTORY OF ROMAN LAW. all the other magistracies being suspended. All the ten were patricians.' Each commissioner administered the government in turn for a single day. They drew up a body of laws, which was approved by the senate and the comitia centuriata, and was straightway set forth in public on ten tables of bronze. The further history of the decemvirate is in confusion inextricable, and one can only conjecture the course of events. The work apparently having been represented as not complete, the decemviral form of government was continued for another year. The new decemvirs are said to have included three, or even five, plebeians, who were indebted for their election to the influence of Appius Claudius — the only one of the first decemvirs that secured re-election, and that by an irregularity. Ihne.. conjectures that Appius aimed, in opposition to the extreme patricians, at establishing the long wished-for equality of rights between the two orders, so, that the restora- tion of the tribunate should be unnecessary. The additional laws drawn up by the second decemvirs appear to have presented to the . patricians insuperable objections ; and the decemvirs refused to resign until their laws should be passed. This, however, was an unconstitutional position that could not be maintained. The decemvirs accordingly demitted office in B.C. 449, and the dual system of consulship and tribuneship was re- established. The new consuls, Valerius and Horatius, immediately drew up two tables of laws — no doubt the two tables of the decemvirs, more or less modified — which were duly passed and published. The Twelve Tables. — T'he ten sections of the decemviral laws, and the two sections of the consular (Valerian-Horatian) laws constitute the famous Laws of the Twelve Tables. They form a collection of the earliest known laws of the Roman people, and are the foundation of tlie whole fabric of Roman law. It is by no means certain that the extant fragments of the Twelve Tables have come down to us in their precise original form and expression. The language has probably been somewhat modified by the subsequent Latin usage ; and the fragments have been picked out and pieced together from numerous references in the later literature. The probable order of the fragments has been inferred from various statements and other indications of ancient writers. Cicero and Dionysius, for example, mention certain provisions as belonging to particular tables. Gaius, again, is known to have written six books on the Twelve Tables ; and twenty fragments from this work occur in the Digest, with mention of the book that each is taken from. It was supposed that each book treated of two tables ; and this conjecture served as somewhat of a clue to the probable order. It is to be noted that these laws are not fresh enactments, but merely a written statement of the law as it actually already stood ; although it is to be admitted that the mere fact of formulating customary law in writing ' It was stipulated, however, that all plebeian privileges should be respected. Liv. iii. 32. Moinmsen and Ihne consider that the plebeians were deceived and outwitted ; the election of plebeian representatives to the decemviral board having been first agreed to and then thwarted. THE TWELVE TABLES. 17 would necessarily involve a certain amount of unessential modification. Bruns puts the view fairly enough when he says that the Twelve Tables con- stituted substantially a codification, and not merely an incorporation, of the ancient customary law of the people. " That Greek elements are also taken mto consideration," Bruns proceeds to remark, "is beyond doubt. But when the Romans point out among other things the laws of Solon as prin- cipal sources, this is decidedly false. What is due to this source is but little and unimportant. Law and procedure are essentially Roman." (Bruns, Gesch. u. Quellen des Rdm. Rechts, § 14, in Holtzendorff's Encydopddie d. Rechtswiss. (3te. Aufl. 1877), P- 92-) Except in a very few points, general principles alone are set forth. The style is most rugged and concise, direct and sternly imperative. " The excessive curtness of these provisions implies the existence of an all but unlimited discretion in those who had to administer the law. We know indeed, from other sources, that in ancient Rome the courts and magistrates practically made their own laws to a great extent. The laws of the Twelve Tables were of less importance in the history of the development of Roman law than the institutions by which they were carried into execution." (Stephen, History of the Criminal Law of England, L li.) The following is the substance of each Table ^ : — Table Z.— Proceedings Preliminary to Trial. 1. If the complainant summon the defendant before the magistrate, he shall go ; if he do not go, the plaintiff may call a bystander to witness, and take him by force. 2. If the defendant attempt evasion or flight, the complainant may lay hands upon him. 3. If the defendaut be prevented by sickness or old age, the complainant shall provide a conveyance ; but he need not provide a covered carriage, unless he choose. 4. A freeholder (or taxpayer, or man whose fortune is valued at not less than 1500 ases) shall find a freeholder (or taxpayer) as itindex or surety (for his appearance at trial) ; a proletary (or man of less fortune) shall find such surety as he can. 5. "Where the parties agree (as to prehminaries), the plaintiff shall open his case at once. [Otherwise : Where the parties come to terms, let the matter be settled.] 6. If the parties do not agree, the plaintiff shall state his case in the comitium or in the forum before midday. Let both parties appear, and argue out the matter together. ^ The first important attempt to construct the Twelve Tables from the various references in later literature was made by Jacques Godefroy in his FraQmenia XII, Tahularum (Heidelberg, 1616), reprinted in his Pontes IV. juris civilis (Geneva, 1638 and 1653). A stricter criticism was applied by Haubold in his Instit. juris Horn, privat. hist, doffm. epitome (Leipzig, 1821), and by H. E. Dirksen in his Uehersicht d. hisher. Versuche zur Kritik u. Herstellung d. Textes d. XII. Tafd Fragmente (1824). More recently (1866) the whole subject has been thoroughly discussed by Eud. Schoell in hia Lerjis XII. Tab. Fdiqyiae. Nothing essential has been added by later writers. The references to the particular passages that have preserved relics of the Twelve Tables may be very conveniently seen in Bruns, Pontes luris Horn. Antiqui (ed. 4ta. 1879-81), pp. 14 follg., and in Nasmyth and Priohard's Ortolan's History of Roman Law, pp. 102 follg. B 1 8 A SHORT HISTORY 'OF ROMAN LAW. 7. If one of the parties haa not appeared by midday, the magistrate shall then give judgment in favour of the party that has appeared. 8. If both have appeared, at sunset the court shall rise. 9. Both parties shall enter into recognisances for their reappearance (vades, sub- vades). Table II.— The Trial. 1. The amount of the stake to be deposited by each litigant shall be either 500 ases or 60 ases ; 500 when the subject of dispute is valued at 1000 or upwards, 50 when at less than 1000. But when the subject of dispute is the freedom of a man, then, however valuable the man may be, the deposit shall be only 50 ases. 2. A dangerous illness, or a day appointed for the hearing of a cause in which an alien is a party. . . . If any one of these circumstances occur to a judex or to an ariiter, or to a party, the cause shall be adjourned. 3. A party that is in want of a witness, shall go and cry aloud at the door of his house, thus summoning him to attend on the third market day following. 4. Theft may be the subject of compromise. Table III. — Executiotu 1. In the case of an admitted debt or of awards made by judgment, 30 days shall be allowed for payment. 2. In default of payment, after these 30 days of grace have elapsed, the debtor may be arrested [or proceeded against by the action of manus injectio], and brought before the magistrate. 3. Unless the debtor discharge the debt, or some one come forward in court to guarantee payment, the creditor may take the debtor away with him, and bind him with thongs or with fetters, the weight of which shall not be more (but, if the creditor choose, may be less) than 15 pounds. 4. The debtor may, if he choose, live on his own means. Otherwise the creditor that has him in bonds shall give him a pound of bread a day, or, if he choose, more. 5. In default of settlement of the claim, the debtor may be kept in bonds for 60 days. In the course of this period he shall be brought before the prsetor in the comitium on three successive market da-ys, and the amount of the debt shall be publicly declared. After the third market day the debtor may be punished with death or sold beyond the "Tiber. 6. After the third market day the creditors may cut their several portions of his body ; and any one that cuts more or less than his just share simll be held guiltless. Table IV. —Patria Potestas. 1. Monstrous or deformed offspring may be put to death.' 2. The father shall, during his whole life, have absolute power over his legitimate children. He may imprison the son, or scourge him, or keep him working in the fields in fetters, or put him to death, even if the son held the highest offices of state, and were celebrated for his public services. He may also sell the son. 3. But if the father sell the son a third time, the son shall be free from his father. 4. A child born within ten months of the death of the mother's husband shall be held legitimate. 1 Dion., 2, 16, says the law of Eomulus requirea that such offspring should first be shown to five Beighhours, and that these should approve of the course proposed. THE TWELVE TABLES. 19 Table V. — Inheritance and Tutelage. 1. All women shall be under the authority of a guardian ; but the vestal virgins are free from tutelage. 2. The mancipable things belonging to a woman that is under the tutelage of her agnates are not subject to usucapion, unless she herself deliver possession of them with the authority of her tutor. 3. The provisions of the will of a paterfamilias concerning his property and the tutelage of his family, shall be law. 4. If the paterfamilias die intestate and withoufcstms heres, his nearest agnate shall succeed. 5. Failing an agnate, the gentiles shall succeed. 6. In default of a testamentary tutor, the male agnates shall be tutors by operation of law. 7. If a man cannot control bis actions, or is prodigal, his person and his property shall be under the power of his agnates, and', in default of these, of his gentiles .... if he has no curator. 8. If a freedman die intestate; and without suus Uerea, his patron shall succeed. 9. Debts due to or by a deceased person are divided among his co-successors, by mere operation of law, in proportion to their shares in the inheritano&. 10. The rest oi the succession is divided among the co-successors by the action famUicB erciscundce. 11. A slave freed by will, upon condition of giving a certain sum to the heir, may, in the event of being alienated by the heir, obtain his. freedom by payment of this sum to the alienee. Table VT. — Ownership cmd Possession. 1. The legal effect of every contract, and of every conveyance (made with the money and the scales) shall rest upon the declarations made in the transaction. 2. Any one that refuses to stand by such declarations shall pay a penalty of double damages. 3. A prescriptive title is acquired' after two years' possession in the ease of realty ; after one year's possession in the case of other property. 4. If a wife fnot married by covfarreatio or coemtio) wishes to^ avoid subjection to the hand of her husband by usucapion, she shall absent herself for a space of three nights in each year from his house, and thus break the usus of each year. 5. No length of possession by an alien can vest in, him a title to property as against a Koman citizen. 6. In the case where the parties plead by joining their hands on th» disputed property, in the presence of the magistrate [the actual possessor shall retain provi- sional possession ; bwt, when it is a question of personal freedom], the magistrate shall award provisional possession in favour of liberty (that is, in favour of the party that asserts the man's freedom). 7. If a man finds that his timber has been used by another in building a house, or for the support of vines, he shall not remove it. 8. But he shall have a right of action against the other for double its value. 9. Between the first pruning and the vintage [the owner may not recover the timber by vindicatio ?]. [Otherwise : And when they become separated, then they may be claimed by the owner.] 10. Things sold and delivered shall not become the property of the vendee until he has paid or otherwise satisfied the vendor. 20 A SHORT HISTORY OF ROMAN LAW. 11. Conveyance by bronze and scales {mancipatio), and surrender in court (m jwre cessio) are confirmed. Table VII. — Seal Property Law. 1. A clear space of two feet and a half shall be left around every house. [That is to say, every two houses must stand at least five feet apart.] 2. Boundaries shall be regulated (according to the commentary of Gains) by the provisions of Solon's Athenian code ; [if a man plants a fence between his own land and his neighbour's, he shall not go beyond the boimdary line ; if he builds a wall, he must leave a foot of space ; if a house, two feet ; if he digs a ditch or a trench, he must leave a space equal in breadth to the depth of the ditch or trench ; if a well, six feet ; and olives and fig-trees may not be planted within nine feet of a neighbour's land, nor other trees within five feet]. 3. Conditions relating to villas, farms, and country cottages. 4. A space of five feet between adjoining lands shall not be liable to usucapion. 5. For the settlement of disputes as to boundaries, three arbiters shall be appointed. 6. The breadth of road over which there is right of way is eight feet in the straight, and sixteen feet at the bends. 7. The neighbouring proprietors shall make the road passable ; but if it be impassable, one may drive one's beast or vehicle across the land wherever one chooses. 8. If one's property is threatened with damage from rain-water that has been arti- ficially diverted from its natural channels, the owner may bring an action aqu(B pluvwB arcend(B, and exact compensation for any damage his property may sustain. 9. The branches of trees that overshadow adjoining land shall be lopped to a height of fifteen feet from the ground. 10. Fruit that falls from one's trees upon a neighbour's land may be collected by the owner of the tree. Table VIII Torts. 1. Whoever shall publish a libel — that is to say, shall write verses imputing crime or immorality to anyone — shall be beaten to death with clubs. 2. If a man break another's limb, and do not compromise the injury, he shall be liable to retaliation. 3. For breaking a bone of a freeman, the penalty shall be 300 ases ; of a slave, 150 ases. 4. For personal injury oir affront, 25 ases. 5. [Accidental] damage must be compensated. [On the whole of this subject see Sell, Die Actio de rvpitiis sarciendis der XII. Tafdn. This provision was followed up by the Lex Aquilia.'] 6. A quadruped that has done damage on a neighbour's land, shall be given up to the aggrieved party, unless the owner of it make compensation. 7. He that pastures his animals on a neighbour's land is liable to an action. 8. A man shall not remove his neighbour's crops to another field by incanta- tions, nor conjure away his corn. 9. For a person of the age of puberty to depasture or cut down a neighbour's crop by stealth in the night, shall be a capital crime, the culprit to be devoted to Ceres a,nd banged ; but if the culprit be under the age of puberty, he shall be scourged at the discretion of the magistrate, and be condemned to pay double the value of the damage done. THE TWELVE TABLES. 2 1 10. If a man wilfully set fire to a house, or to a stack of corn set tip near a house, he shall be bound, scourged, and burned alive ; if the fire rose through accident, that is, through negligence, he shall make compensation, and, if too poor, be shall undergo a moderate punishment. 11. If a man wrongfully fell his neighbour's trees, he shall pay a penalty of 25 ases in respect of each tree. 12. A person committing theft in the night may lawfully be killedL 1.3. But in the day-time a thief may not be killed, unless he defend himself with a weapon. 14. If theft be committed in the day-time, and if the thief be taken in the fact, and do not defend himself with a weapon, then, if a freeman, he shall be scourged and adjvidged as a bondsman to the person robbed ; if a slave, he shall be scourged and hurled from the Tarpeian rock. A boy under puberty shall be scourged- at the dis- cretion of the prsetor, and made to compensate for the theft. 15. A person that searches for stolen property on the premises of another, without the latters consent, shall search naked, wearing nothing but a girdle, and holding a plate in his hands ; and if any stolen property is thus discovered, the person in posses- sion of it shall be held as a thief taken in the fact. When stolen property is searched for by consent in the presence of witnesses (without the girdle and plate), and found' in a person's possession, the owner can recover by action of furti concepti against the person on whose premises it is found, and the latter can recover by action furti oblati against the person who brought it on his premises, three times the value of the thing, stolen. 16. For theft not discovered in commission, the penalty is double the value of the property stolen. 17. Title to property in stolen goods cannot be acquired by prescription. 18. A usurer exacting higher interest than the legal rate of ten per cent, per annum is liable to fourfold damages. 19. A fraudulent bailee shall pay double the value of the deposit. 20. Any citizen may bring an action for the removal of a tutor suspected of mal- administration, and the penalty shall be double the value of the property stolen. 21. A patron that wrongs his client shall be devoted to the infernal gods. 22. If any one that has consented to he a witness, or has acted as scale-bearer (in mancipation), refuses to give his evidence, he shall be infamous and incapable of giving evidence, or of having evidence given on his behalf. 23. False witnesses shall be hurled from the Tarpeian rock. 24. If one kill another accidentally, he shall atone for the deed by providing a ram to be sacrificed in place of him.^ 25. For practising incantations or administering poisonous- drugs [the penalty shall be death]. 26. Seditious gatherings in the city during the night are forbidden. 27. Associations (or clubs) may adopt whatever rules they please, provided such rules be not inconsistent with, public law. Table IX. — PvibUe La,v>. 1. No laws shall be proposed affecting individuals only. 2. The assembly of the centm-ies alone may pass laws affecting the caput of a citizen. 1 " To depasture one's crops by stealth -vi'as a capital crime by the Twelve Tables— a more severe punishment than was inflicted in case of homicide."— Plin., Eist. Nat., 18, 3, 12. Compaie Table VIII. 9 (above). 22 A SHORT HISTORY OF ROMAN LAW. 3. A judex or arbiter, appointed by the magistrate to decide a case, if guilty of accepting a bribe, shall be punished with death. 4. Provisions relating to the quaestors (or court appointed for the investigation of cases) of homicide. — There shall be a right of appeal from every decision of a jvdex (judicium), and from every penal sentence (poena). 5. Whoever stirs up an enemy against the state, or betrays a citizen to an enemy, shall be punished capitally. ■6. No one shall be jut to death, except after formal trial and sentence. 'Table X. — Sacred Law. 1. A dead body shall not be buried or burnt within the city. 2. More than this shall not be done. The wood of the funeral pile shall not be smoothed with the axe. 3. Not more than three mourners wearing ricinia,^ one wearing a small tunic of purple, and ten flute-players may attend the funeral. 4. Women shall not tear their cheeks, nor indulge in wailing. 5. The bones of a dead person shall not be preserved for later burial, unless he died in battle or in a foreign country. 6. Regulations regarding [prohibiting?] unction, drinking (banquets), expensive libations (df -wine perfumed with myrrh), chaplets, and incense boxes. 7. But if the deceased -has gained a chaplet, by the achievements either of himself or of his slaves or his horses, he or liis parents may legitimately wear such, in virtue of his honour and valour [while the corpse is lying within the house or is being borne to the sepulchre]. 8. Norperson shall have more than one funeral, or more than one bier. -9. Gold shall not be burnedor buried with the dead, except such gold as the teeth have been fastened with. 10. A funeral pile or sepulchre for burning a corpse shall not be erected within sixty feet of another man's house, except with his consent. 13. Neither a sepulchre for burning nor its vestibule x£ai be -acquired by usuoi^ion. Table XI. — Supplementaett. 1. Patricians shall not intermarry with plebeians. Table XH.— Scpplementaet. 1. An action of distress shall lie, on defaultof payment, against the purchaser of a victim, and also against the hirer of a beast of burden that has been lent for the purpose of raising money to spend on a sacrifice. 2. If a slave commit a theft, or do any other 'iijjury, 'the master may, as an alternative to paying the damages assessed, surrender the delinquent. 3. If any one wrongfully obtain possession of a thing that is the subject of litiga- tion, the magistrate shall appoint three arbiters to decide the ownership ; and, on their adverse decision, the fraudulent possessor shall pay as compensation double the value of the temporary possession of the thing in question. 4. A thing whose ownership is the subject of litigation shall not be conseor-ated to religious purposes, under a penalty of double its value. 5. The most recent law repeals all previous laws that are inconsistent with it, 1 Ridnium, » small square sheet of voollen clotli, douljled and wraDped nwer the lead and .jghouldci's ; a moui-ulng die&s assumed more es^edallj by leumlea. THE TWELVE TABLES. 23 Magistrate and Judge. — The law was administered publicly in \he forum by the magistrate (that is, in the early times of the republic, the consul, or, as he was at first named, the prtelor) and th.& judex or arbiter. The magis- trate, the personal state-representative of the law, having heard a case stated before him, declared the law on the subject, and instructed the judex on what lines to proceed in the investigation of the merits. The jude.v heard the evidence, and dehvered judgment, which was enforced by the authority of the magistrate. The proceedings before the magistrate were called jus, and were said to take place in jure ; the proceedings before the judex were called judicium, and were said to take place in judicio. The two functions were kept distinct, with but few exceptions, down to the general introduction of the judicia exiraordinaria in the reign of Diocletian, at the close of the third century after Christ (a.d. 294). " To that separation the private law of Rome was indebted for its logical clearness and practical precision." Criminal cases involving the captit of a citizen were decided by the comitia centuriata. The right of appeal from the sentence of a magistrate affecting any of the elements of the caput, was established and confirmed by successive Valerian laws. The magistrate summoning the assembly was the accuser, and the defendant pleaded his own cause, being sometimes assisted by his nearest relations. No professional assistance was afforded till more than a century before the end of the republic (B.C. 149). But subject to the prisoner's right of appeal, the consul might sentence him to be flogged, or even to undergo a severer punishment. Statute-Process {Legis Actiones). — The law did not go abroad to take con- cern in a civil dispute, except in so far as it authorised the plaintiff to compel, in the presence of a witness or witnesses, an unwilling defendant to come before the magistrate. If there was no witness at hand, or if the plaintiff was not strong enough to make the arrest, or if the defendant could contrive to make oflf, the law did not stir in aid of the aggrieved party. A defendant might also avoid immediate appearance by obtaining some friend of equal social standing with himself to act as his bail. And when both parties at length appeared before the magistrate, the procedure wore the aspect of a voluntary arbitration. In reality, however, the reference to arbitration was compulsory ; for, the parties having invoked the decision of the law, the civil jurisdiction at this point asserted itself. The earliest mode of settling disputes, the trial by battle, had fallen away into the symbolical mock-combat preceding the most essential stage of the sacramentum, namely, the wager ; and in order to decide the wager, the law prescribed that the case should be investigated and pronounced upon by an arbitrator {judex). The first step had been taken in civil jurisdiction, and the first judges were simply arbitrators. The forms of procedure in an action at law were called legis actiones (" statute-process," Mr Poste translates the expression), either says Gaius, because they were appointed by statute before the days of the prsetor's edict, or because they followed the letter of a statute, and were as incapable of variation in form as law. So rigid were they that, if a man brought an action against another for cutting down his vines, and in his action called them vines, he was nonsuited, because he ought to have called them trees, for the Twelve Tables, from which the right of action was derived, speak. 24 A SHORT HISTORY OF ROMAN LAW. not of vines, but generally of trees. (G. iv. li.) They are fully described in Book iv., Law of Procedure. These legis actiones were not permitted to be used by any but Roman citizens. They required the parties to appear personally in court ; but an assertor libertatis was allowed to claim the freedom of a person alleged to be unjustly held as a slave. They maintained an absolute rigidity of form. They exhausted the cause of action, in any event whatever— even if the case ended in a nonsuit on the slightest technical error. The sentence commonly awai-ded the subject in dispute, and not damages. Even with the publication of the Twelve Tables, and the settlement of the forms of procedure, the plebeians remained at serious disadvantage. Between the rigidity of the forms and the inability of plebeian suitors to adapt their particular cases to them, it was but too easy for justice to mis- carry. Besides, the calendar was in the hands of the pontiffs— that is to say, of the patricians, who sedulously preserved the mysterious knowledge of the days when it was lawful for the magistrates to sit in court {dies fasti). The veil was not lifted till a century and a-half after the date of the Twelve Tables. Jus Civile. — When we speak of the Roman Civil Law, we mean the whole system of usages and rules of private law adopted by the Roman people ; their jus privatum as opposed to their jus publicum (including Criminal and Sacred Law). The Corpus Juris Civilis as left by Justinian was the result of a gradual modification and enlargement of the code of the Twelve Tables, under three great influences — the Jurisconsults, the Prastor, and Legislation. The institutional definition of the/z^J civile as the peculiar law of Rome, in contrast with the jus naturale and jus gentium, is a mere philosophical flourish ; by late writers /kj- civile was confined to the responsa prudentum alone ; what the Roman jurists had chiefly before their mind when they used the expression was the old law of the Twelve Tables, as contrasted generally with the newer developments of 'Cos jus honorarium. CHAPTER III. FROM THE TWELVE TABLES TO THE CLOSE OF THE REPUBLIC (B.C. 449-31). I. POLITICAL DEVELOPMENTS. pA TRICIANS and Plebeians.— li the purpose of Appius Claudius was to effect a reconciliation of the hostile orders in the state, the well-meant attempt proved a complete failure. Inveterate patrician selfishness ard pride stood opposed by well-grounded plebeian aspiration and distrust, and there was no alternative but to fight the matter out to a conclusive issue. It was a great achievement for the plebeians to have extorted from the patri- cians the publication of the laws, and to have secured at least formal FROM TWELVE TABLES TO CLOSE OF REPUBLIC. 25 admission to the decemvirate, then the highest office in the state. But the abolition of the decemvirate and the re-establishment of the consulship and the tribuneship was a step backwards, which it was necessary to regain. The negative influence of the tribuneship, even when supplemented by the occasional assumption of independent authority on matters of exceptional urgency touching the privileges of the plebeians, must be advanced to a regular and equal positive influence in legislation and in the administration of the law. In B.C. 445 a very important breach was made in the exclusive patrician barriers by the passing of the Canuleian law legalising the intermarriage of patricians and plebeians. The prohibition of the conubium in the Twelve Tables was certainly not a new enactment, but only the record of an institu- tion as old as Rome itself By the concession of the conubium, it was open to plebeians to share in the peculiar religious observances of the patrician caste, and in the auspicia by which was ascertained the will of the gods (not to mention the will of the patrician magistrates) in respect to the Roman state. The levelling effects of this legal mixture of patrician and plebeian blood, socially and politically, are not to be easily over-estimated. But the political results, the removal of intolerable political disabilities, formed, Ijeyond all other considerations, the aim and object of the plebeian con- tention. The political conflict continued to rage. Every inch of ground was dis- puted with the utmost pertinacity. The great policy of the patricians was, while satisfying temporarily the formal claim of the plebeians, to reserve as much as they possibly could of the actual substance of the supposed conces- sion. Thus the persistent plebeian demand for admission to the consulship led to the successive separation from the original consular functions of all those duties that originally appertained to the quEestors, the censors, the prastors, and the curule aediles. In process of time, however, the plebeians gained admission to every one of these offices of state. The qusstorship was opened to them, formally in B.C. 421, actually in B.C. 409 ; the consul- ship in B.C. 367 ; the curule-asdileship in B.C. 366 ; the dictatorship in B.C. 356 ; the censorship in B.C. 351 ; and the prstorship in B.C. 336. By one of the Licinian laws of B.C. 367 the charge of the Sibylline books was trans- ferred from duumviri to decemviri, half of whom were to be plebeians ; and by the Ogulnian law of B.C. 300, four of the eight pontiffs and five of the nine augurs were henceforth to be plebeians. The complete triumph of the plebeians was achieved in B.C. 287, when the Hortensian law enacted that the resolutions of the assembly of the tribes should be directly, without modi- fication or control or delay, binding on the whole Roman people. From this date the reconciliation and fusion of the two orders, which had been pro- gressing more or less slowly amid the internal conflicts of the preceding century and a half, issued in a great expansion of national prosperity and victorious conquest. The Restored Tribuneship and the Assembly of the Tribes. — In B.C. 449, immediately upon the re-establishment of the tribuneship, the privileges of the plebeians were confirmed by the leges ValericB et Horatice, passed by the comitia centuriata on the proposal of the consuls Valerius and Horatius. By one of these laws it was enacted that henceforth the resolutions of the comitia 26 A SHORT HISTORY OF ROMAN LAW. tributa {plebiscita, also called leges tribunicia, and simply and commonly leges) should be binding on the whole people. As yet the confirmation of the patres (or the senate) would seem to have been essential in order to give the force of law to the plebiscites ; but in B.C. 339 one of the leges PublilicE practically annulled this check, and the lex Hortensia of B.C. 287 removed it altogether.' By a second Valerian-Horatian law the right of appeal was also renewed, under the severest sanctions ; whoever should procure the election of a magistrate from whose sentence there should be no appeal was threatened with outlawry and death. The plebeians were thus confirmed in their riglit of appeal from the decision of a patrician magistrate to the assembly of the tribes.^ A third provision revived and confirmed by law the sacred and inviolable character of the tribunes and the ffidiles, with whom were now joined in sacrosanctity the legal officers ciS\.e.6L judices decemviri, ox judices and decemviri? The expulsion of the kings and the establishment of the republic would seem to have had a considerably disturbing effect on the condition of the local tribes, for in B.C. 495 twenty-one tribes were constituted. With the extension of the Roman territory new tribes were from time to time added. In B.C. 241 there were thirty-five tribes, and this number was never after- wards changed. For the Lex Julia of B.C. 90 and the Lex Plautia Papiria of B.C. 89, in so far as they enacted the creation of eight or ten new tribes for the enrolment of the citizens of the newly admitted Italian states, were immediately superseded by the Lex Sulpicia of B.C. 88, which distributed the Italian citizens among the existing tribes. Although the comitia tributa was limited to the infliction of a fine, and cases involving the caput of a Roman citizen were reserved for the judgment of the comitia cetituriata, the judicial authority exercised by the assembly of the tribes might readily enough be turned to the heavy punishment of obnoxious patricians. Not only do the tribunes exercise the right of in- tercession against objectionable acts of the highest magistrates or or- dinances of the senate, but the senate itself appeals to the tribunes to control the action of the consuls. In B.C. 431 the tribunes, on the appeal of the senate, compelled the consuls, under a threat of imprisonment, to comply ' Liv. iii. 55 ; viii. 12. Mommsen distinguishes the comitia tributa from the concilium plehis. He holds that an enactment of the comitia tributa was always designated lex, while a plebiscitum was always and only a resolution of the concilium plebis. That the lex Valeria-JIoratia established the comitia tributa, and that the lex PuUilia invested it with power to legislate under the presidency and on the proposal of the prsetor. That the lex Hm-tensia applied to the concilium plebis, rendering its enactments binding on the whole of the citizens without the necessity of the approval of the patres. See Mommsen, Bbm. Porsch., I. 163-6, 200-1, 215-17. Also Muir- head, Oaius, i. 3, note 2. As to patres, see p. 13, note 1. ' Some scholars consider that the lex Valeria of B.C. 509 gave the provocatio to the patricians alone, and that this lex Valeria et Horatia extended it for the first time to the plebeians. But compare p. 13, note 3. A lex Valeria of B.o. 300 re-enacted the right for the third time. 3 Whether the two words (Liv. iii. 65) should be read together or separate is matter of endless dispute. See further under Centumviri, p. 49, below. FROM TWELVE TABLES TO CLOSE OF REPUBLIC. 2/ with a decree of the senate and appoint A. Postumius Tubertiis dictator. The official right of the tribunes to appear in the senate, and to take part in its discussions, is at length acknowledged. It was probably about B.C. 394 that the action of the tribunes became considerably hampered by the power of a single member of the college, instead of the majority as before, to render void a resolution of his colleagues. This check, so useful for patrician purposes, was not removed till it was overborne by Tiberius Gracchus. The office did not cease to ex:ist on the achievement of equality of legal security, or even of political privileges. For two centuries following the Hortensian law of B.C. 287 the tribuneship was the most powerful office in the state, and enforced the resolutions of the comitia tributa^ which now took cognisance of public interests of every kind. Then came a temporary reverse : by the lex Cornelia of Sulla the tribunes were stripped of all their powers excepting the original jus intercessionis alone. In B.C. 70, however, they were restored to all their former rights and privileges by Cn. Pompeius. In the latter period of the republic the selection of tribunes was in the hands of the senate. And during the last struggles of the republic their action was more energetic and more corrupt than at any former period of their existence. But on the rise of the personal predominance of Julius C^sar, the office sank into a feeble and humble dependence, whence it never emerged thereafter. The Consulship. — The desperate struggle for the admission of plebeians to the consulship went on for about eighty years, B.C. 445 to B.C. 367, when the Ux Licinia enacted that one of the consuls should be a plebeian. The first compromise extorted from the patricians was the concession of liberty to the comitia centuriata to elect, in place of consuls, " Military Tribunes with Consular Power ; " but at the same time the patricians reserved the most highly prized consular functions, assigning them to a new department, the censorship, administered^ by patrician officers. During those eighty years, the patricians contrived to have consuls elected no less than twenty- three times. On the compulsory admission of the plebeians to the consulship in B.C. 367, the patricians again reserved certain consular functions to be performed by patrician officers solely, — the praetors and the curule sediles. Presently, of course, they developed their old tactics, and in one-half of the years B.C. 355 to B.C. 342, they elected both consuls from the patrician ranks. In the last-mentioned year, however, the lex Licinia was re-enacted, with the further concession that both consuls might be chosen from the plebeians. Further resistance on the part of the patricians proved wholly fruitless. Consular Tribunes {Tribuni Militares consulari potestate, or imperid). — In B.C. 445, C. Canuleius, the tribune of the plebeians that proposed the law for permitting conubium between patricians and plebeians, also proposed a law declaring plebeians eligible for the consulship. To this the patricians opposed a fierce resistance, but at length they prudently turned the attack by a concession that w<5re the appearance of reality, while intended to be little more than merely fornnaL In B.C. 444 it was agreed that the comitia centuriata should in each yfear elect either consuls, as usual, or, in their place, magistrates called "Military Tribunes with Consular Power," who should be equally eligible from both patricians and plebeians. It would seem, however, to have Iain with the senate to decide which of the two classes of magistrates should be appointed in each year. Further, the 28 A SHORT HISTORY OF ROMAN LAW. " Consular Power " was very far from complete ; the consul's functions m connection with the census being detached and relegated to a new patrician office — the Censorship. The number of the consular tribunes was at first three ; from B.C. 426 to B.C. 406, it was (except on two occasions) four ; in B.C. 405 it was increased to six ; and when we sometimes hear of eight, this number most probably includes the censors, who divided with the consular tribunes the functions of the consulship, and were regarded as in a manner their colleagues. Apparently one place at least was always reserved for a patrician, perhaps the one charged with the administration of justice, — the forerunner of the praetorship. At the first election, in B.C. 444, one plebeian, if not two, happened to get elected, but the election was soon discovered to be invalid through some irregularity of procedure, and the plebeians were promptly replaced by patrician magistrates. During the next forty-four years, down to B.C. 400, not a single plebeian was elected consular tribune ; and during those years consular tribunes were elected only twenty-three times, while in the thirty-five years B.C. 444 to 409, consuls were elected twenty times. From B.C. 400 onwards, great tides of popular feeling bore plebeians into office. But the modes of controlling and thwarting the popular will were numerous, and the patrician policy was thoroughly un- scrupulous and was worked by a well-tried organisation, so that the equality of political privileges remained purely nominal, except for the occasional outbursts of plebeian agitation, until the first of the Licinian laws in B.C. 367 opened the consulship to the plebeians, sweeping away the con- sular tribuneship, and breaking down the long and disgraceful pre- dominance of the patricians. The first plebeian consul was elected in B.C. 366. The Censorship. — The severance from the consulship of the duties of the consul in connection with the census was an astute move in maintenance of patrician influence. The consuls, holding the census, regulated the military service of every citizen, and carried out the quinquennial revision of the list of voters in the comitia centuriata, which was accompanied with the perform- ance of the solemn sacrifice of the lustrum ; and they nominated new senators. Such far-reaching and even sacred powers the patricians could not endure to commit to the hands of the consular tribunes, who might be mere plebeians, and accordingly they contrived to reserve them under patrician control. The censorship was established in B.C. 443. The censors, two in number, were elected by the comitia centuriata. At first they held office for five years (lustrum), the stated period intervening between two registrations ; but in B.C. 434 it was enacted by the lex ^Emilia that they should hold office for one year and a half only, the office remaining vacant for the rest of the five years. The first plebeian censor was elected in B.C. 351, almost a century after the institution of the office. The way was now open for the easy admission of plebeians to the senate. In B.C. 339 one of the leges Publilice provided that one of the two censors must be a plebeian ; but it was not till B.C. 280 that the solemn sacrifice of the lustrum was performed by a plebeian censor. In addition to the original and extremely important duties of the Registra- tion the censors, in process of time, undertook the general oversight of public morals, punishing such improper conduct as the laws did not provide against. " Not only gross breaches of morality in public and private life, cowardice, FROM TWELVE TABLES TO CLOSE OF REPUBLIC. 29 sordid occupations, or notorious irregularities, fell under their corrective dis- cipline, but they were in the habit of denouncing those who indulged in extravagant or luxurious habits, or who, by the careless cultivation of their estates, or by wilfully persisting in celibacy, omitted to discharge obligations held to be binding on every citizen." (Ramsay, Rojnan Antiquities, p. 168.) They also superintended certain of the arrangements for the collection of the revenue, fixing the amount of property-tax each citizen should pay, and at a later period framing the leases or contracts on which the greater part of the imposts were farmed out to contractors. Finally, they exercised a general superintendence of public works ; making the contracts and overseeing the execution of new undertakings, and keeping in good repair all existing build- ings and other works. After a vigorous existence of some four centuries, the censorship was first directly attacked by a lex Clodia, B.C. 58, and, although this was repealed a few years later, the office fell into abeyance during the civil wars, and, after a fitful revival, virtually expired. Under the empire, the title of censor was assumed by some of the emperors, while the emperors generally acted as frcefecti morum, regulating the public morals and choosing the new senators. The Prestorship and the JEdileship are reserved for the separate heading — The Judicial Officers (page 34). Progress of Roman Conquest. — Leaving on one side for a little the magistracies and other offices most nearly concerned with the administra- tion of justice, we will briefly recapitulate the chief steps that led to the universal sovereignty of Rome. From the union of the two orders on the basis of an equality of rights in B.C. 367 dates the beginning of this world- wide supremacy. In B.C. 338 Latium was subdued ; the Samnite wars already begun in B.C. 343, raged, with but two short intervals, till B.C. 290, when the superiority of the Roman arms was acknowledged ; and the short struggle of Southern Italy under the leadership of Pyrrhus (B.C. 280-275) was soon followed by the submission of the whole of Italy to the dominion of Rome (B.C. 264). The position of Sicily at once led to the Punic wars. In the first struggle (B.C. 263-241), Rome stripped Carthage of Sicily and the Lipari Islands ; in the second (B.C. 218-202) she broke the power of her rival, who kept the peace for half a century thereafter, and was finally ruined in the third war (B.C. 149-146). During the Punic wars, Rome had also turned her arms against enemies in other quarters. Cisalpine Gaul was reduced to a Roman province in B.C. 222, and the rebellious spirit of the inhabitants was completely quelled in B.C. 191. The alliance of Philip V. of Macedon with Hannibal (B.C. 215) suggested to the Romans the conquest of the Eastern world. The three Macedonian wars (B.C. 214-205, 200-197, 181-168) reduced Macedon and Greece to provinces of Rome. The Syrian war (B.C. 192- 184) grew out of the early stages of the Macedonian wars ; and con- temporaneous with the eastern struggles were still more serious difficulties in Northern Italy and Spain. On the fall of Numantia in B.C. 133, Rome was supreme over all the lands of the Mediterranean coast, fi'om the Pillars of Hercules to the monarchies of Asia Minor, Syria, and Egypt. Later she turned her attention to Transalpine Gaul, which was at length finally subdued by Cassar (B.C. 58-50). The civil wars of the last half century of the republic were the assertion of personal power backed by 30 A SHORT HISTORY OF ROMAN LAW. military force, which presently led to the downfall of the republic and the undisputed supremacy of Octavian (Augustus) (B.C. 31). In B.C. 51 there were fifteen provinces, and in B.C. 31 there were twenty- four to divide between the emperor and the senate (or the people). About half were governed by proconsuls, and half by propraetors ; the consuls and prffitors being sent out with renewed imperium, after their year's service at home. The provinces were assigned by lot or by a common understanding among the consuls and among the praetors, or by the senate ; the more dis- turbed or threatened territories being allotted to the consuls. Extension of the Roman Citizenship. — The full Roman citizenship {jus civitatis) included certain public and private rights. The public rights were commonly expressed as suffragium et honores — the right of voting in the popular assemblies, and the right of being eligible to all public offices, civil, military, and sacred. To these may be added a third — the right of appeal from the magistrates to the assemblies ' in all cases involving the caput {jus provocationis). The private rights were conubiuin and commercium. Conubitim, the right of contracting a regular marriage, such that the children of it should be born into the privileges of the father, was the basis of the domestic or family law. Commercium, the right of making contracts, of acquiring, holding, and transftrring property of all kinds, according to the law of Rome, was the basis of commercial intercourse. Citizens in the full enjoyment of all these rights were cives Optimo jure j citizens in posses- sion of the private rights alone were cives non Optimo jure. In the earliest times the patricians alone were citizens in the fullest sense, and we have just seen how the plebeians, who possessed at first only the comvtercium and a limited conubium, at length, after a prolonged series of severe struggles, gained the rest of the rights, one after another, and placed themselves on an equal footing with the patricians. In early times, all men outside the Roman state were enemies and barbarians ; a free man that was not a Roman citizen was a foreigner or alien {peregrimis). By-and-by, however, the application was contracted, and peregrini were free aliens in some sort of connection with Rome. In the early days of the city, such persons may have been drawn to it by trade, or by other ties ; or, at a later period, the Roman power may have been extended over the territory they were settled in, or it may have drawn into alliance the free states of which they were free subjects. Roman citizens also might lose their citizenship and fall into the condition of aliens. Under the republic, aliens had no part or lot in the rights of Roman citizens, political or civil, now enumerated. They were not even allowed to wear the national dress {toga), and they might be expelled from the city, — as indeed they were expelled in B.C. 127 and 66. For a long time they could not appear in a court of law in person, but could sue and defend only as represented by a Roman citizen, under whose protection they had placed themselves {patronus) ' The Twelve Tables (IX. 2) expressly provided that such trials should be held before the coniitia centuriata alone. It is not easy, however, to helieve that the plebeians would have long endured that a plebeian should not have the right of bring- ing his appeal before the assembly of the tribes. Compare Eamsay, Roman Antiquities, pp. 287-8. FROM TWELVE TABLES TO CLOSE OF REPUBLIC. 3I — a quasi-revival of the clientship of old. Towards the end of the first Punic War, about B.C. 247, however, the increasing number of aliens and the enlarged amount of legal business led to the establishment of a special alien court under the Prcstor Peregrinus, ' for the settlement of suits between citizens and aliens and between aliens and aliens. Hence grew up the body of rules constituting the jus gentium, and defining the legal rights of aliens. A middle position between the civis and the peregrinus was occupied by the Latinus. The kindred Romans and Latins had for long remained in close friendly relations. Towards the end of the regal period, Rome had stood at the head of the Latin confederation, and the Latin states pro- bably possessed at least the commerdinn. During the century and a half's existence of the Latin League formed by Spurius Cassius in the early years of the republic (B.C. 493), many Latin municipal towns and colonies enjoyed the private rights of Roman citizenship. The disaffec- tion that ended in the subjugation of Latium led to the various indi- vidual treatment of the conquered cities, which were received into the Roman alliance on such terms as their individual behaviour seemed to justify. In course of time no doubt the cities that had been more harshly dealt with would gradually recover the privileges they had lost. It may be stated broadly that the Latins possessed the coinmerciujn, but not the conubium (except by special grant). Probably at the date of the Social War the Latin privileges generally included the right of obtaining citizenship, on condition of one's having held a magistracy or post of honour in one's native town. At any rate, when the full citizenship was after that event extended to the whole of Italy, these privileges began to be extended to certain remoter Roman subjects that were not Roman citizens, under the namey'z^j Latii, or Latinitas, or simply Latium. In the very earliest times the number of patrician cives was increased by the accession of aliens, on whom the king, with the consent of the comitia curiata, conferred the citizenship either individually or as members of a community. The same principle was acted on during the republic, the citizenship being conferred by an express law upon individuals and commu- nities that had deserved well of Rome. When personal superiority came to be in the ascendant, an express law was dispensed with, and Marius, Pompeius, Sulla, and Csesar exercised a delegated or an assumed power to confer the citizenship at their discretion. Sometimes not the full citizenship, but only the private citizenship {civitas sine suffragio) was conferred, as in the case of Csre, in B.C. 390, and of Acerras, in B.C. 332. The Italy of the late republic was not a compact nation, but rather an aggregate of civic communities, without much uniformity of privileges or unity of feeling. The policy of Rome in respect to her Italian subjects has been summed up in the two words — isolation and self-government. She fostered the feeling of local patriotism, and conceded varying measures of home rule and privileges of citizenship, as well as imposed imperial burdens. ' Ramsay notes (after Becker) that the title prcelor peregrinus first occurs in in- scriptions of the reign of Trajan. In old laws the Alien Praator is indicated by the expression prcstor qui iiiter peregrinos (and inter cives et peregrines) jus elicit, and the Urban Prietor is similarly spoken of as prcetor qui inter cives jus dicit. 32 A SHORT HISTORY OF ROMAN LAW. The colonies formed the most effective instrument to her hand. They constituted a friendly and commanding nucleus in the very heart of the strongest towns of the conquered states ; they are described by Cicero and Livy as garrisons, fortifications, and watch-towers {pmsidia, propugnacuta, speculce). Besides this, they diffused Roman ideas, and familiarised the people with the Roman language and institutions ; they reared good soldiers for the Roman armies ; and they relieved Rome from the severe pressure of a poor, excessive, and discontented population. The foundatibn charter of each prescribed the imperial burdens to be borne, and the contingent of troops to be furnished by it. The Colonia Civium Romanorum (including the Colonics Marilimcs) retained all the rights and privileges of Roman citizens, although their public rights were really in abeyance. The Colonics LaiincB, however, possessed only a partial private citizenship ; they had commercium, but not conubiiim in the full sense, conveying to the children the rights of the father ; as they consisted of citizens of Rome, as well as of Latin states, such Roman citizens as joined them lost their public rights and somewhat more. In all cases the government was a miniature of the government at Rome. The old inhabitants would be compelled to submit to the laws of the new settlers, and, if they did not drive out the colony, would gradually draw towards it in some sort of union. The municipal towns (municipia) of the olden time, down to the reduction of Latium, enjoyed, under a treaty of equal alliance, the private rights of Roman citizenship (with modified conubium) at Rome ; the citizens of such towns might exercise these rights, and were liable to the corresponding obligations, and hence the name {inunia, capere). After the subjugation of Latium, the foreign policy of the municipal towns was now merged in the supremacy of Rome, and the citizens either possessed the private citizenship alone iinunicipia sine suffragio), or, being enrolled in a Roman tribe, were able to exercise the full citizenship at Rome {municipia cum suffragio). In both cases the municipal towns were self-governed, and their imperial obligations were fixed by the terms of their treaties of alliance. It is probable that these commonly included a certain contingent of troops, with field pay and equipments. With the general conferment of the full citizen- ship after the Social War, the municipal towns all became municipia cum suffragio, and preserved but few marks of difference from colonies. The peculiar characteristic of the Prefectures {prcs/ecturcE) was that they did not elect their own chief magistrate, who was annually sent out from Rome. His designation was prcefectus juri dicundo. Subordinate to the colonies, muni- cipal towns, and prefectures were the outlying market-towns and villages {fora, conciliabuld). Before the Social War the citizens of all the Italian states in alliance with Rome that did not possess the full citizenship were called Socii^ the chief of whom, the Latini of Latium and of the Latin Colonies were usually named specifically in the general designation — Socii et nomen Latinum. In B.C. 90, at the close of the Social War, the lex Julia gave the full citizenship to the Latini and the federate states (Socii). Next year, B.C. 89, the lex Plaiitia Papiria opened the citizenship to all such aliens as were citizens of the federate states. Thus the great mass of the Italians were admitted to the Roman franchise. The privileges of the Latins, who formed the chief element of the federate states, were then gradually extended to the FROM TWELVE TABLES TO CLOSE OF REPUBLIC. T,T, provinces. In B.C. 89 the /ex Pompeia, which probably conferred the full citizenship on the Cispadani, gave Latinitas ox jtcs Laiii to all the towns of the Transpadani. But a full citizen might lose his privileges, either wholly or in part. He might be sold into slavery for various offences against military discipline, or for wilfully avoiding registration in order to exempt himself from taxation. The provision of the Twelve Tables empowering a creditor to sell his debtor into slavery was abrogated by the lex Pcetelia (B.C. 325 or 313) ; and for the enslavement of a thief caught in the act, also prescribed by the Twelve Tables, the Prsetor substituted the penalty of fourfold restitution. A citizen taken prisoner by the enemy fell into the condition of a slave ; his civil rights were in abeyance ; but on his return home he recovered his rights by postliminium {or jus postliminii). A citizen that was admitted a member of any other state thereby divested himself of his Roman citizenship, and became invested with such privileges as his new state possessed in relation to Rome. We have just seen examples in the case of Roman citizens joining Latin colonies. On the other hand, slaves might rise from the condition of mere pieces of property to the enjoyment of the franchise. In early times the slaves were few ; but, as the Roman territory was extended, and prisoners were taken in war, they increased rapidly, and towards the close of the republic, they per- formed nearly all the agricultural work, filled nearly all the trades, and swarmed in the houses of the wealthy. The oppression of the slaves led to the rise of the agricultural labourers in Sicily in B.C. 135-132, and B.C. 103- 99, and of the Gladiators in Italy in B.C. 73-71. Although a slave could not own property, yet if he had been allowed to hoard up his savings {peculium), he might at length purchase his freedom. The state itself sometimes re- warded slaves with freedom in respect of long or peculiarly important ser- vices ; the most signal case was the manumission of 8000 slaves in B.C. 214 for distinguished bravery during their exceptional service in the army after the disaster at CannE. When a slave had been manumitted in a legal form, he thereby became invested with the plebeian franchise. There seems, however, to have been much difficulty in satisfactorily disposing of the freedmen in tribes. Originally they were confined to the four city tribes, but in B.C. 312 they were distributed among all the tribes, an arrangement that was reversed in B.C. 304, and (for either this reversal had not been actually carried out, or it had been itself reversed) again in B.C. 220 ; in B.C. 169 they were enrolled in one of the city tribes {tribus esquilina), determined by lot ; and finally, about B.C. 116, a law of jEmilius Scaurus restored them to the four city tribes, where they re- mained, in spite of further attempts at redistribution, till the end of the republic. It was long before the taint of blood ceased to bar the way of the freedman to social advancement. It took two generations of purification before a man of servile origin could face public opinion as a candidate for the plebeian tribuneship. Appius Claudius, who had distributed the freed- men among all the tribes in B.C. 312, was considered to have polluted the Senate by admitting the sons of freedmen in the same year of his censorship. In the time of the civil wars, the Senate was overrun with freedmen. The safe and profitable disposal of the voting power of freedmen was always a matter of the first consideration. 34 A SHORT HISTORY OF ROMAN LAW. II. THE JUDICIAL OFFICERS. I. The Prcetors and the jEdiles. The Prestor.—ks the patricians were gradually compelled to share their power and privileges with the plebeians, they clung with desperate tenacity to the exclusive control of the administration of justice. The prastorship, as we have already seen, was created for the special purpose of reserving this cherished control when the rest of the consular functions were shared with the plebeians under one of the Licinian laws (B.C. 367), and it was the last stronghold of patrician exclusiveness to yield to the steady determination of the plebeians (B.C. 337). For about a century and a quarter there was only one prsetor. The increase of the Roman population, however, the expansion of judicial business, and the unavoidable recognition of aliens by the law, led to the appointment of a second praetor in B.C. 247. The original prastor now continued to administer justice between citizens and citizens alone ; he was called the City Prastor {Prator Urbanus or Urbis), and was said to hold the city province, lot, or jurisdictio. The new prastor administered justice between citizens and aliens, and between aliens and aliens ; he was said to hold the alien province, lot, or jurisdictio, and (in late times, if not originally) was called the Alien or Foreign Praetor {Prcetor Peregrinus). He, too, exercised his functions in the city ; the provincial administration being provided for by the creation of two more preetors in B.C. 227 to go out as governors to Sicily and Sardinia, and of yet two more in B.C. 197 for the two divisions of Spain. Usually the two home praetors cast lots for their respective provinces, but sometimes the Senate distributed all the prsetorian provinces at their discretion. The City prstorship was always considered the highest prize. When the alien prsetor was sent out to lead an army, his judicial duties devolved upon the city praetor, who never took the field except in the most pressing emergencies. But about B.C. 144, shortly after the establishment of the Quastiones Per- petua:, all the prajtors were detained at Rome, two of them as presidents of the civil courts, the rest as presidents in the criminal courts. The prffitors were annually elected by the Comitia Ce7ituriata. They took rank next to the consuls, and indeed, from being elected under the same auspices, they were popularly styled colleagues of the consuls. They were the highest judicial magistrates. The city praetor ranked first, as supreme civil judge. In the absence of the consuls from the city, he was charged with all their functions, except that he could not name a dictator or preside at the consular or praetorian elections. The PrcBtor's Edict.— AW the principal home magistrates (consuls, praetors, sediles, quasstors, censors) as well as the provincial governors and the pontiffs, were accustomed to publish edicts (edictd), or public notices, in reference to such remarkable events or important duties as required their official atten- tion. An edict might be issued in reference to a single matter only, or it might be a statement of a new magistrate's general principles of administration. Such a general edict was prized as removing in a great measure the evils of uncertainty, and it became the custom for a magistrate, on entering office, to publish his official principles in this form. It was called an edictum FROM TWELVE TABLES TO CLOSE OF REPUBLIC. 35 perpettium, in contrast to temporary or occasional proclamations. Not only was it made known by oral announcement, but it was inscribed on white tablets and fixed up in the forum in such a position that everybody might read it with ease. The edicts published by the city and alien prietors, and by the curule sediles, setting forth the rules they proposed to observe in granting or refusing legal remedies during their term of office, were called edicta urbana, as opposed to the edicta provincialia of the provincial governors and qujestors. Chief of all edicts were the edicts of the praters. Naturally each successive praetor was content to adopt in the main the rules of his pre- decessor, and the portion of the preceding edict that he transferred to his own was called the edictum tralatitiicm. H e was not legally bound to accept any such rules, but practically he had little choice in the matter ; for the adoption by successive prators of particular rules that supplied a felt want to the satisfaction of the public was an authoritative legalisation of them that could not be safely disturbed, and if a new rule had worked well even for no longer time than the past year, it could not be rejected without at least the appearance of deliberate or capricious unfairness. It was urged against Verres that he had arbitrarily altered the edict that he received from his predecessor in the praetorship. (Cic. in Verr. 1,40-47.) With the growth of this feeling, the edict at length came to be handed down from year to year with but slight annual changes. The arbitrary modification of an edictum. perpetuum, whether by addition or alteration, during a praetor's term of office, was also regarded with lively uneasiness and disfavour. Till about B.C. 67, however, there was no guarantee, except constitutional usage, that a prffitor would adhere to his own proclamation, but in that year a lex Cornelia was passed declaring it illegal for' a praetor to depart from his edict. The growth of this edictum perpetuum continued vigorously for more than a century after the establishment of the empire, notwithstanding that the triumph of the imperial system involved the destruction of the great elective magistracies of the republic. Under Hadrian, Salvius Julianus consolidated and arranged the Perpetual Edict, and that work (A.D. 131) may be taken to mai'k the end of praetorian legal reform. The/wj honorarium included both Xh&jus pratorium ' and tlie/aj' cedilicium, and tliis name was given, because, says Justinian, those that bear high honours, namely tlie magistrates, have given their authority to this branch of the law.. ytis Gentiujn. — The jus gentium was not exactly co-extensive with the jus honorarium. Two distinct uses of the expression _;«j gentium are to be discriminated. First, the Roman jurists define jus gentium as comprising the principles of right and wrong recognised in the laws of all peoples or bodies of men politically organised. Justinian, having separated public from private law, reproduces from Ulpian a threefold division of Roman private law into precepts of natural law (Jus naturale), of the law common to all nations or gentile law {jics gentiitm), and of the civil law or law peculiar to the citizens ' Tal derived from another principle than the Jus Civile ; it was derived from the naturalis csquitas, the characteristic of the' Jus Gentium." (Long, Ciceronis Orat. (" Bibl. Classica" series). Vol. I. {Verr. libri septem), Excursus IV. {Edicta Magistratuum), p., 190.) Condictio. — To the four forms of statute-process recognised in the Twelve Tables there was subsequently added a fifth called co7idictio (or notice). Gaius (iv. ig) tells us that it was created by the lex Silia (b.c. 244)^ for the recovery of a determinate sum of money, and extended by the lex Calpurnia (B.C. 234)^ to the recovery of every detenninate thing. Sir H. S. Maine, however, holds to the opinion that it was only regulated, not created, by those laws. Gaius explains that in condictio the plaintiff gave notice to the defendant to appear before the pr^tor on the thirtieth day after the summons to choose an arbitrator ; but he adds that in his day there was no longer any propriety in the designation, for in such cases notice had ceased to be given. The essence of the process was that the parties entered into a sponsio- and restipulatio — that is, they laid a wager whereby one-third of the sum (or of the value of the thing) in dispute went to the winner (and not, as in the sacramentum, to the state), along with the subject litigated. Jurists of the time of Gaius could not understand the necessity for a new process when the sacramentum and judicis postulatio would have compassed the end in view. Sir H. S. Maine points to the difference between a present arbitrator, as supposed in the sacramentum, and a future arbitrator (thirty days hence), with an immediate wager, as in the condictio. Mr Poste remarks that '' at this period the sacramentum would be practically confined to real actions before the Centumviral Court ; condictio would be the appropriate personal action for recovering a certain sum or thing due upon a unilateral contract, real {mutuuin), verbal {stipulatio), or literal iexpensilatio) ; and judicis postulatio the appropriate personal action for recovering an uncertain sum due on a bilateral contract, and enforcing obligations to perform {facere) rather than to convey." (Poste's Gaius, iv. 18-20, Comm.) In any case the condictio is distinctly preferable to the sacramentum. It is simpler, and better adapted to the ends of civil procedure, for it begins at once with reciprocal wagers, and, by awarding the sums staked to the winner, it introduces costs. Defects of Statute-Process. — The five legis actinnes, however, were very limited in their application, exceedingly inconvenient, and most uncertain. They could not be applied by any one except a Roman citizen, so that the increasing numbers of aliens at Rome were entirely excluded from recourse 1 Some critics carry the dale as far back as the fifth century before Chriot, shortly after the date of the Twelve Tables. See p. 62, middle. 38 A SHORT HISTORY OF ROMAN LAW. to them. Besides, they were not suitable for every form of grievance in a state of society that had long outgrown them. They were intolerably vexatious in requiring the personal appearance of the parties and in not per- mitting them to employ an agent. They were dangerously uncertain, for litigants had to select the forms of procedure for themselves, and the slightest mistake ruined their whole case. The professional knowledge that would have introduced more certainty into the use of the forms, was, in the earliest times, carefully withheld from the people at large. It was not till B.C. 304 that the formularies of actions and the lawful court-days were published by Cneius Flavius, and a century more elapsed till the publication of the work of Sextus ^lius Paetus on the Twelve Tables. Old patricians that had filled high offices of state, and the first straggling jurisconsults, could give addi- tional assistance to puzzled litigants. But all such aids to the sure selection of forms must have been limited to a narrow circle, and the advantages of them could hardly have reached the great body of the people. Gaius (iv. 30) records that the system of statute-process fell into discredit and desuetude owing to the excessive subtilitas of the jurists. Probably more stress might justly be laid on the merciless rigidity, the absolute want of elasticity in its forms, and the irremediable consequences of the slightest departure from any one of them. These last, at any rate, were its most serious defects. In both points the new system that had been growing up alongside of it ever since the institution of the prsEtorship made an immense advance. Whereas the statute- process began with the form, and was liable to be invalidated by error at every stage up to the litis contestaiio, the formula was not settled till the issues had been sifted out by both parties, assisted by jurists, before the magistrate ; and then it was settled, not by the plaintiff, but by the magistrate himself ; and up to this point no fatal error could possibly creep in. Again, whereas the statute-process gave no remedy unless the plaintiff could find a form for the proper expression of his claim, the new system enabled the praetor to accommodate the formula to any ground of action, and to grant a new action suitable to the circumstances that had developed since the days of the Twelve Tables. The Formulary System. — The origin of the written formula may not improbably be sought in the department of the Alien Prstor. The forms of the legis actiones being the peculiar heritage of Roman citizens, it fell to the Alien Prcetor to devise some substitute in cases wherein aliens were parties. In doing so, he naturally preserved the essential features of the Roman system, introducing only such modifications as were either absolutely necessary or practically desirable. Thus, he did not undertake to hear and decide causes himself, but referred them to arbitrators — not the Roman judices, but the recuperatores. Again, as in the legis actiones., the Praator elicited from the parties the question in controversy between them ; but instead of wrapping this up in the rigid forms of the Jus civile, he was content to make out a plain written instruction to the arbitrators, informing them that, if they found the fact to be so-and-so, they should order the defendant to pay so-and-so. This was the essential char- acter of the formula in factum; it contained no positive assertion of any right in the plaintiff, but proceeded at once from a recital of the facts constituting the complaint, to give the arbitrators power to award damages. FROM TWELVE TABLES TO CLOSE OF REPUBLIC. 39 By a very simple and ingenious variation of ih^ formula, it was possible to admit an agent or attorney either for the plaintiff or the defendant. Thus, " If Dio has received in deposit a golden vase of Agerius, and refuses to give it up, let the recuperatores order Dio to pay to Negidius the value of the vase." By introducing the name of the attorney Negidius, Agerius was relieved from all trouble in connection with the proceedings. In ascribing the origin of the written /orOT«/a to the necessity of provid- ing for aliens there is an element of conjecture, but the account cannot be far wrong. The next step is the introduction oi formula: in civil causes between citizens. This may have been one of the objects of the lex /Ebutia. At all events, there can be little temerity in hazarding the assertion that formula ^exe. brought in for citizens first ii) the case oi actio?ies in personam, and that a very considerable interval elapsed before they were allowed in actiones in rem. Whether this interval corresponds with the distance between the lex jEbutia and the leges JuHce is a matter of conjecture. But there is no doubt that the first formula admitted in causes between citizens was a simplification of the condictio, which in turn may be viewed as a modification of the sacramenlum. The cardinal difference between them was the omission of the reciprocal wagers that formed an indispensable pre- liminary to the condictio. The steps whereby the formula was adapted to actions for property can be traced with certainty, from the sacramenlum to trial by sponsio or wager, and then to direct submission of the right of the plaintiff to the judgment oi \kie. judex. The exact force of the Lex JEbuiia and of the two leges JulicB mentioned by Gaius,^ is by no means clear. It has commonly been supposed from the statement of Gaius that they formally abolished the legis actiones (except in certain cases) and established the formulce in their place. The excepted cases were — (i) cases of apprehended damage {damni infecti), and (2) causes intended to go before the centumviral court ; but by the time of Gaius the legis actio had been practically discarded in the case of apprehended damage. There is a tendency now to understand that the lex Abulia formally intro- duced the Formulary procedure, and simply left the statute-process to its chances of existence, which were continuously limited as time went on, and in the days of Gaius were restricted, legally to two classes of causes, and practically to one class. In any case those leges are the signs of the decline of the statute-process, and if not formally, yet practically they abrogated it. After the decay of the system of statute-process, however, the forms still survived for many a day, in the ceremonies of adoption, in the manumission of slaves, in the emancipation of sons, and in conveyance by in jure cessio. And it left traces of its influence on the praetorian system that grew and flourished by its side and finally superseded it. The marked feature of the new system of procedure injure lay in the forms containing the praetor's instructions to the judex. Such forms were designated formtilcE. The judex was bound to adhere to his instructions, and thus it was a matter of the utmost importance that the right formula ' G., iv. 30-31. The lex jEhutia is usually assigned to about B.C. 170 ; but conjecture places it at various points between B.C. 300 and 100. The leijes Julvz are supposed to be leges judiciarice of Csesar or Augustus— perhaps B.C. 45 and 25. 40 A SHORT HISTORY OF ROMAN LAW. should be given. The shaping of the formula was entirely in the hands of the magistrate, who was free to vary it in such ways as to secure what he considered the substantial justice of the case. Some formula were framed so as to state a fact (/// factum concepix), on which the judgment was based, and they also specified either generally or with limitations the amount of the award ; others were framed so as to state a right of the plaintiff or a duty of the defendant {in jus conccptce). There was no essential difference in procedure between an actio and an interdictumj the latter in this respect precisely imitated the former. Operation of the Prater's influence.— Th^ action of the Prffitor affected the lav/ in three distinct ways. First. The prater denied to a person having a perfect legal right his proper remedy. The plaintiff's claim might be perfectly valid by the civil law, and yet to give effect to it might work injustice. In order to prevent this deplorable result, the prsetor recognised a merely equitable defence {excepiio). If the defendant was able to advance and establish facts sufficient to show that injustice would flow from the enforcement of the plaintiff's claim, then the praetor would invest such a defence with the force of a legal protection against the plaintiff's claim. The strict letter of the old law, if not set aside, was prevented from carrying its unfairness into action. Some exceptiones the prsetor set forth in his edict, others he granted to suit particular cases after inquiry. But, while some exceptions were based on the jurisdiction of the prstor, there were others created by statute or some- thing equivalent to statute. (G. iv. 1 15-137.) Second. The prstor gave old actions to persons having no legal right. In many cases, while basing his formula on an old rule of law, he extended its application in accordance with the newer xiecessities of the situation — a discretionary power of the utmost value, although of considerable danger in the hands of unskilful or dishonest magistrates. This extension of old actions to new cases Gains describes as a Fiction. It was a rigid maxim of law, for example, that the prEetor could not make an heir ; yet the prjetor contrived, under the name oi bonorum possessio, to give to a person all the rights and duties of an heir. For it often happened that a person with no title by the civil law was nevertheless the rightful heir on grounds of natural justice. In the actions brought by such a person the formula ran in this way : " If — were Aulus Agerius heir — Numerius Negidius ought to pay him xxx sestertii : let i\\e judex condemn Numerius to pay him that amount." This form does not make the false averment that Aulus Agerius is heir ; it simply directs ^e. judex io give the same sentence against Numerius as if Aulus Agerius were heir. It was perhaps less of a shock to put the matter in this way, than it would have been to say plainly and directly that Aulus Agerius ought to recover whether he was heir or not. It conveyed the impression that if Aulus were not heir according to strict law, nevertheless in justice he ought to be. Such an action seems rather a hypothetical than a fictitious action. It was said to be founded on utiUty {actio utilis). In some actions, indeed, the prsetor took a more direct and bolder course ; for example, in the case of a sale of inheritance, the defendant was condemned to pay the buyer if it appeared that he owed money to the deceased. Third. The preetor introduced entirely new actions. Of these much the FROM TWELVE TABLES TO CLOSE OF REPUBLIC. 4 1 most important is tlie Interdict. When the prastor introduced a new right in rem the remedy he gave was called inUrdichaii, and, in some cases, decretiim. (G. iv. 138-170.) When he introduced new rights in personam, his remedy was called actio. The exception of the actio Servians, which was brought to vindicate a right in rem, may be explained in various ways ; but it is sufficient to remark that this action was not introduced until a period when the word interdictiim was beginning to lose its excliisiveness. There appears to be no instance where a remedy for a right in personam is called interdictwn. In the time of Justinian there was no substantial difference between interdicts and actions ; Gaius indicates that the procedure was exactly similar in both cases ; and we can hardly say more than that the distinction between interdictuni and actio appears to have only a historical significance, testifying merely that certain rights in rem were created by the praetor.' Besides cases of an executive character, such as proceedings for the execution of judgments or to enforce the rules of procedure, the praetor sat as judge to investigate and determine disputes between litigants. For example, if a minor under twenty-five had foolishly or imprudently entered, into a bargain that resulted in serious loss to him, the prastor might personally hear the evidence and redress the disadvantage by making the bargain void {restitutio in integrum). And even persons over twenty-five might similarly be relieved from the consequences of fraud or force practised or exercised upon them. But such relief the praetor granted only when no other remedy by actio or exceptio was available. Under the empire this Extraordinary Procedure rapidly superseded the formulary system. The PrcEtor's Jurisdictio and Imperium. — The power of the prastor was twofold : he possessed hot\i jurisdictio and imperium. 'Jurisdictio expressed his unlimited power of administering the civil law in the ordinary course of procedure (ordo judiciorum). Under the forms of Statute-Process {legis actiofies), it was summed up in three words — do, dico, addico — uttered by the ' Mr Poste {Gains, iv. 138-170, Comm., page 622, 2d ed.) makes the distinction rest on the point of origin and the sanction. " Interdicts are characterised by Gaius as proceedings wherein the prifitor * 'principaliter auctoritatem suam interponit.' Principaliler may simply refer to the chronological order of steps in legal proceed- ings ; and then interdict procedure will be characterised by the fact that it opens with a command of the prastor {interdictuni), whereas ordinary procedure opened with an act of the plaintiff [in jus vocatio) and the prastor's authority was not very signally manifested, at least in statute-process, till the stage of execution {addictio, missio in possessionem). But Bethmann-HoUweg, sect. 98, seems correct in giving a less insig- nificant meaning to the term which expresses the essential contrast of Interdict and Action, and interpreting the word principaliter as expressive of the pre-eminence, supremacy, or absolute power, of the praetor in the sphere where interdicts were employed. The contrast then will be between the jurisdictio of the prsetor and his imperium." Elsewhere (page 624), however, Mr Poste admits that "this feature was not peculiar to interdicts ; but if we suppose that interdicts were coeval with statute- process, and formed a matter of cognitio extraordinaria, and that, further, the other subjects of cognitio extraordinaria were then imperfectly developed, .it such a period interdicts would form the most signal m^inifestation of magisterial auitoritas: and it is perhaps to a jurist of this period that the definition we have quoted is due." 42 A SHORT HISTORY OF ROMAN LAW. praetor in disposing of the several stages of a case. That is to say, he gave permission to bring the cause into court {dare actionejn), and he appointed an arbitrator {dare judicem) ; he stated the law and shaped its application for the investigation of the case before the arbitrator {dicere jus) ; ' and he formally gave effect to the decision of the arbitrator by vesting through his judgment a title to property or to damages {addicere bona or damnd). Under the formulary process, the oral statement of the law in the first person was superseded by a written document expressing the prastor's directions or decision in the imperative form. The other element of the praetor's power, the iniperium, vested in him as part of the sovereign power (practically restricted) that he possessed in virtue of his magistracy. As associated with (D. i, 21, i), or as embracing (D. 2, T, 3), the jurisdiciio, it was called imperium mixtum, in contrast with imperium merum, the mere power of the sword, a criminal jurisdiction. On the imperiu7n were based the legislative, as opposed to the merely administrative, functions of the prastor. " In legis actio the legislator and the litigants seem alone to occupy the scene. The praetor is only present as master of the ceremonies, and even as such can only utter sentences which the legislator has previously dictated. In the formulary system the prstor appears with much larger attributions ; he seems to have stepped in front of the legislator and has taken much of the initiative from the suitors." (Poste, Gams, iv. 138-170 Coram.) He appoints new actions {actiones honorariae, or -prcstorice), no longer limiting himself to those appointed by statute. In such actions (as opposed to actions of the civil law, actiones legitimes), " the praitor, except so far as he abstained with a. demure deference from inserting in the formula the sacred term Oportere, certainly exercised the attributions of a legislator. A similar, though not identical, division was that into judicia legitima and judicia imperio continentia (binding by imperiuni) ; a division that, roughly speaking, corresponded to the functions of the prKtor in imperial Rome, and his functions in the subject provinces. This last division, though important in its time, was more purely historic and accidental than the preceding ; it has left a less permanent impress on Roman law, and its traces are nearly effaced from the compilation of Justinian." (Poste, Gains, iv. 138-170, Comm.) Again, in the exercise of his Cognitio Extraordi7iaria (as opposed to statute-process and the formulary system, composing at different periods the ordinary course of procedure), the prstor personally made an investiga- tion of the facts and issued a decree, which he could enforce by fine, distress, and imprisonment ; thus assuming the functions of the judex and of the legislator as well. The jurisdictio might be delegated, but not the imperium. The prastor stands in Roman law midway between the jurisconsults and the legislature. His right to alter the law was openly acknowledged, but it was not unlimited. He was surrounded by a firm, although invisible and somewhat elastic, band. He was checked by public opinion, and by the probability of having to answer for his conduct on demitting office. He may ' Dicere jus (cf. jv/ris-dictio), according to Ulpian (D. 2, 1, 1), is the widest designation of the authority of the prsetor, including not merely the compulsory reference to arbitration, but the appointment of tutors, etc. FROM TWELVE TABLES TO CLOSE OF REPUBLIC. 43 be viewed as the keeper of the conscience of the Roman people, as the person that was to determine in what cases strict law was to give way to natural justice {naturalis (Bquitas). Even a wider authority than this was ascribed to him, for he was to entertain general considerations of utility {pziblica utilitas). A single example may suffice to show that the praetor's edict was confined within real, although indefinable, limits. The Twelve Tables gave the succession to a father to his children under his potestasj the children released from the potestas did not succeed. The prsetor, however, did not scruple to admit emancipated children to succeed their fathers ; but it was reserved for later legislation to provide that a child should succeed its mother. The work of the prsetor may be summed up under three heads. It was the praetor chiefly that admitted aliens within the pale of the Roman law. To him is mainly due the change whereby the formalism of the civil law was superseded by well-conceived rules giving effect to the real intentions of parties. Lastly, he took the first and most active share in transforming the law of intestate succession, so that, for the purpose of inheritance, the family was regarded as connected by the natural relation of blood instead of the artificial relation oi potestas. The jEdiles. — The two Plebeian A£diles were first elected in B.C. 494 as assistants to the tribunes. They were charged with the special duty of keeping the tablets whereon were inscribed the laws passed by the popular assem- blies and (after B.C. 446) the decrees passed by the senate. In course of time they had new duties laid upon them, and they gradually came to be regarded as independent magistrates. On the establishment of the pr^torship in B.C. 367, the election of two Curule ALdiles was agreed upon between the patricians and the plebeians, the chief duty assigned to them being ostensibly the magnificent celebration of the Lzcdi Romani, in commemoration of the union of the two orders. The Curule ^diles were to be patricians ; next year, however, it was arranged that they should be patrician and plebeian in alternate years, and presently it was agreed that they should be elected from both orders indifferently. The first Curule iEdiles were elected in B.C. 365. The jurisdiction of the sdiles seems to have been limited. Their duties are summed up by Cicero in three heads. First, they were curatores urbis, burgh magistrates, and commissioners of police and of pubhc health. Second, they were curatores annoncE, inspectors of the markets, and commissioners for the storing up and distribution of the imports of grain. In B.C. 45 JuUus Caesar created two additional plebeian aediles to look after the supply of corn {^diles Cereales). Third, the sdiles were curatores ludorum solennium, superintendents of the arrangements for the public games. To the plebeian aediles also fell the duty of instituting prosecutions against (l) persons that occupied more than their legal extent of state land {ager publicus); (2) tenants of state pastures that pastured thereon more than the legal number of flocks and herds ; and (3) money-lenders that exacted an illegal rate of interest — all such persons being regarded as offenders against interests that were peculiarly plebeian. The ffidiles (according to some authorities, only the curule sediles), on entering office, issued edicts or rules of administration {Jus adilicium), and they were empowered to inflict fines,— for example in 44 A SHORT HISTORY OF ROMAN LAW. respect of nuisances, unwholesome provisions, light weights, avaricious hoarding of grain in time of scarcity. Their judicial powers seem to have been chiefly exercised in reference to sale, and that mostly of grain, slaves, and cattle.' The jus cedilicium was reckoned as part of the jus honorarium. Provincial Magistrates. — In addition to his military duties, the Provin- cial Governor, whether proconsul or proprator, exercised supreme jurisdic- tion in all causes, civil and criminal— like the praetor. He was guided and restricted by the particular law or laws constituting and regulating his pro- vince. Each province came to be divided into judicial districts {jiiridid conventus, jurisdictiones), and the governor went on circuit, holding an assize (conventus) in the principal town of each district at least once a-year. With the aid of a board of assessors {consilium), chosen from the qualified jurymen of the province in attendance {conventus), he decided appeals from local courts, as well as fresh cases of importance. All his civil jiidices were recuperatores. The governor might punish provincial offenders with imprison- ment, flogging, or even death ; but Roman citizens, convicted on a criminal charge, always enjoyed the right of appeal to Rome. The Qucesior, who always accompanied the provincial governor, and who was supposed to live in the closest intimacy and friendship with him, exercised the functions of curule aedile. 2. The Arbitrators. Under the Republic, the Arbitrators were of four c\assts— judex, arbiter, centumviri, recuperatores. Judex, was also used as a general term applicable to all the classes. Judex. — The office oi judex is of unknown origin. It certainly remounts to the Twelve Tables, of which certain extant provisions refer to holh. judex and arbiter. Besides, the old legis actio called Judicis Postulaiio is decisive evidence of its antiquity. In the early centuries of the republic, although in principle the litigants in civil suits were always free to choose their yKfl'^;ir, yet in fact they were confined to the selection of senators. This limitation continued down to the times of the Gracchi. Till B.C. 123 the consilium, or jury {jiidices), in criminal trials, before Special Commissions {Qucestiones) and Standing Commissions {Qucestiones Perpetuce) alike, had been drawn exclusively from the senatorial body. In this year, however, the lex Sempronia was carried by C. Sempronius Gracchus — the first of a series of judiciary laws {leges judiciarice), by which the friends and the foes of the senate from time to time endeavoured to fix the classes that should furnish the criminal jurors. This act stript the senatorial order of their exclusive judicial power, and enacted that the judices should be chosen from the Order of Knights {Equites, Ordo Equester) —a non-military class, now for the first time constituted a political body, and consisting simply of citizens (of non-senatorial families) possessed of a certain property qualification {census equester), namely, 400,000 sesterces. This reform was ' The duties and honours of curule sclile are set forth by Cicero {in Verr., V. li). FROM TWELVE TABLES TO CLOSE OF REPUBLIC. 45 acknowledged by the popular party to be, on the whole, a vast improvement ; although it had little effect on the trials for Restitution of mal-appropriations {Repetunda), the provincial governors being blind and deaf to the exactions of the tax-farmers {ptiblicant), who, as members of the order of knights, would become Xh.e\r judices in the probable enough event of their being pro- secuted for mal-administration. To the Senators, on the other hand, the results appeared very different, and during the next forty years they struggled steadily to regain and hold the exclusive privilege. Under the lex Acilia repetundarum (B.C. 122) the list oijitdices was annual, and was chosen from the knights. Under the lex Servitia repetundarum of Glaucia (about B.C. 1 1 1) thejudzces were still chosen from the knights. By the lex Servilia of Caepio (consul, B.C. 106), the privilege oi\>&n\^ judices was to be shared between the knights and the senators, or to be wholly transferred to the senators; but, if this law was ever really passed, it must have been presently repealed.^ In B.C. 91 the lex Livia of M. Livius Drusus, tribune of the plebeians, opened the office equally to senators and knights ; but it was repealed in the same year by the unanimous consent of parties. In B.C. 89 the lex Plautia required the elec- tion of fifteen jurors from each of the thirty-five tribes by the several tribes themselves, without prescribing a limitation to any particular classes. At last, in B.C. 81, the lex Cornelia of Sulla restored to the senators the exclusive privilege wrested from them by the lex Semproiiia. Their triumph was but short-lived, however. In B.C. 70 the lex Aurelia, proposed by M. Aurelius Cotta, the City Prjetor, under the sanction of Pompey, enacted that Xhejiidices should be chosen from three classes — the Senators, the Knights, and the Tribunes of the Treasury. In B.C. 55 the lex Po77ipeia limited the eligible Treasury Tribunes to the v;ealthiest of the class, and in B.C. 46 Csesar's lex Julia rendered all Treasuiy Tribunes ineligible. For a short time Antony admitted even legionary soldiers, without regard to their property qualifica- tion. Augustus restored the three classes of the lex Aurelia and added a fourth class, called ducenarii — citizens whose census amounted to 200,000 sesterces, or only half the qualification of the knights. These were appointed to try causes of inferior importance. Finally, a fifth class was added by Caligula. ^ The preceding three laws are mixed up in all order.s and relations by different writers. The le'x. Acilia (the provisions of which have generally been referred to the lex Servilia of Glaucia) has been usually placed about B.C. 102, and after the lex Ser- vilia. But Mommsen has conclusively shown that the provisions generally assigned to the lex Servilia belong to the lex Acilia, and that this lex was passed in B.C. 123-121 (Zumpt places it "several years after the death of Gracchus," '"say B.C. 118'), while the lex Servilia of Glaucia was passed about B.C. 111. Zumpt states that the lex Servilia of Cfflpio shared the privilege of heing judices between the knights and the senators, and that it lasted for about a year, being repealed by the lex Servilia of Glaucia of B.C. 104, which restricted the privilege once more to the knights. This is substantially the position that Klenze accepted : that Q. Serviliup, by a judiciary law, passed in his oonbulship, B.C. 106, transferred the judicia to the Senate, and that Glaucia reversed this arrangement by his lex repetundarum, which was thus subsequent to B.O. 106. But Mommsen has shown that ihis position is untenable [Zeitschrift fur AlteHhumswiss. 1843, p. 823). See Mommsen, Corpus Inscriptionum Latinarum, i. 49 foUg. ; Bruns, Pontes lur. Mom. Antiq., pp. 52 foUg., with the references ; Zumpt, Criminalrecht d. Rom. Rep., ii. 2, 497, and ii. 1, 101-145. 46 A SHORT HISTORY OF ROMAN LAW. The number oi judices varied greatly at different periods. By the lex Acilia Repetundarum (B.C. 122) the Alien Prastor was commanded to choose yearly, for the purposes of the act, 450 judices, and to swear, when he an- nounced their names in public, that he had exercised his best judgment in the choice. He was further required by the act to inscribe all their names (with the name of ea.chjudex's father and tribe and family), arranged accord- ing to tribes, in black letters on a white table ; and then to set forth this list in a position where it could be conveniently read by passers-by. The lex Lima appointed 600 judices j the lex Plautia, 525 ; Cicero mentions 850 ; and under Augustus the number mounted to some 4000. Under the lex Acilia the accuser and the accused selected 100 judices from the 450 on the album (under certain restrictions, excluding chiefly relations and friends of either party, certain present and past officers of state, and others) ; and each party chose one-half of 'Cae judices offered by the other, so that 100 formed the tribunal. The numbers of the lex Julia and of the lex Plautia may have been similarly chosen for each particular qucestio, but at a later period the total number of judices was first chosen, and the jurors for the particular qucestiones were then selected from the general list. For each particular trial tht judices finally selected did not remain at the number fixed by the lex Acilia. The lex Pompeia de Vi and de Ambitu prescribed the selection of 80 judices by lot from the available list, 30 of whom might be rejected by accuser and accused. In the trial of Clodius for the Bona Dea escapade, there were 56 judices. The Alien Prsetor is charged with the selection for the particular guastio under the lex Acilia, but the City Przetor also chose on oath in a precisely similar manner, and sometimes the Qucesitor chose by lot. The rule seems to have been that the presiding prstor selected an oath. The jurors placed on the Album Judicum were styled Judices Selecti. By the lex Aurelia they were arranged in three sections (decu7-ice judicum) according to the classes they were drawn from ; and the additional classes admitted by Augustus and Caligula formed two more sections, or decurice. Yet not every person belonging to the various classes mentioned was entitled to the privilege of being a judex. The lex Acilia provided that the prKtor should not choose any person that was or had been Tribune of the Plebeians, Quaestor, Triumvir Capitahs (superintendent of prisons), Mili- tary Tribune in one of the first four legions. Triumvir agris dandis assio-- nandis (land commissioner) ; any person that was or had been a senator, any person that was infamis, any person that was under thirty or over sixty years of age, any person that did not reside either in Rome or within (a mile ?) of the city, any person that was father, brother, or son of any of the above-mentioned magistrates, or of a senator, or of an ex-senator, or any one that was beyond seas. Augustus reduced the lower limit of age to twenty-five ; the Digest mentions eighteen. There were also the usual natural exceptions— idiots deaf and dumb persons, and persons under puberty ; and the customary exceptions — women and slaves. The pra;tor had also the power of extend- ing incapacity to other persons. Whether the judices in civil cases were always, from B.C. 123 down to the time of Augustus, chosen from the same varying area as the criminal jurors, is not certainly known. There are some grounds for the opinion that the parties might select as civil judex a person not on the inscribed list. FROM TWELVE TABLES TO CLOSE OF REPUBLIC. 47 Ortolan, on the other hand, maintains that civil as well as cnmmsl judzces must be taken from the inscribed list. It does not, at all events, seem likely that the area of selection of civil judices was more limited at any given time than the area of selection of criminal judices; and, if it hardly seems pro- bable that in the earlier part of this period the areas of selection were con- terminous, they were certainly conterminous in the time of Augustus, if not in the time of Julius Caesar. In all causes, both civil and criminal, it was a fundamental principle that both parties should agree to their judex. " No one," says Cicero i^pro Cluentio, 43), " would our ancestors suffer to be a judge, I do not say of the dignity of a man, but not even of the smallest money matter, unless the opposing parties agreed upon him.'' The manner of choosing a criminal judexhas already been referred to. In civil causes the usual course was for the plaintiff to offer the defendant a judex {judicem ferre) ; and if the two parties failed to agree, the selection seems to have been determined by lot. When \}cy& judex had been at last selected, the magistrate formally appointed him {addicere judiceiri). The person chosen was unpaid, and could not refuse to act. Certain excuses were admissible, but if an zhs^rvl judex failed to furnish a satisfactory excuse, he was liable to punishment. As the office related to public law, a person vsi^lSx jiotestas could act. The per;;ons excepted by nature and by custom, and the age oi judices, have been already mentioned. The dwiW. judex, like the prsetor himself, was not a trained lawyer. He has been compared with the modern jury, but this analogy is even more misleading than such analogies usually are. In English law there is no functionary that fills exactly the office of judex. His functions were in a sense unique. He alone, a single jtidex, a man unacquainted with law, sat without the help of any superior judge, and pronounced judgment in the cause. He might, indeed, seek or listen to the advice of juiisconsults or others, but he was entirely free to pronounce his own sentence. As we have just seen, the judex was selected from the higher classes of society ; for centuries, from the order of senators alone. A civil cause was emphatically not a trial by one's equals ; it was a trial by the order of nobility. The least inaccurate description of the position and function of a republican /z^is'^jr is this : he was an arbitrator, selected from the privileged order (or orders) exclusively, to whom a cause was referred by compulsion of law. What, then, were the checks upon a reference apparently so vague and dangerous? In the first place, perhaps the most important check of all was the character of the judices. Whatever knowledge of law existed, and the largest share of experience of public business, would probably be found in the senatorial body. In the next place, there was a considerable latitude of choice. Surely among three hundred of the leading men of Rome two litigants could find one man in whose fairness and wisdom they might put confidence. Again, if a, judex exceeded his authority under the reference, his judgment could be treated as absolutely null and void. And even if, not exceeding the limits of the reference, the judgment proceeded on an error of law, the defeated litigant might appeal to the praetor when execution on the judgment was demanded ; and failing that, he might obtain the veto of another magistrate or of a Tribune of the Plebeians. Last of all, an action could be brought against a. judex for misjudgment. 48 A SHORT HISTORY OF ROMAN LAW. Arbiter. — In the ancient references to the institution oi judex, the phrase "jtidex or arbiter " {judex arbiterve) frequently recurs. The judex and the arbiter had precisely the same functions, and quite possibly were chosen in precisely the same way from the same class. But what, if any, was the difference between them.' In one passage {pro Murena, 12) Cicero ridicules the use of the two words by the jurisconsults as if it were a purely verbal distinction. Elsewhere,^ however, he proceeds to mark a real dis- tinction, according to which the arbitrator or referee was termed arbiter in (hose cases where the reference contained an element of equity, the action being for an indeterminate sum. But the basis for such a distinction is insufficient. The only difference that expressly appears is, that, whereas there never was but one judex in a cause, there might be several arbitri. The Twelve Tables mention the number three in cases of disputes regarding boundaries. Doubtless also arbiter was anciently used by preference when the referee had some degree of latitude, and was not tied down to give either a definite sum or nothing. Such would appear to have been the usage in the time of Cicero ; but, when we come to Gains, we find the viorA judex used indifferently in all cases.^ There remains, however, a perplexing question. One of the legis actiones, concerning which, unfortunately, we know nothing but the name, was called Judicis Postulatioj but the examples that are 1 Cicero, pro Q. Eoscio Com., 4, 10 ; 4, 11. Cf. Top. 17 ; de Off. 3, 16-17 (66-70). It is a, judicium^ he says, when the simple question is whether the defendant owes a given sum of money ; an arhitrium, when it is alleged that the defendant owes something and it remains for the referee to ascertain the exact amount. Hence, as he justly remarks, in 3. judicium, the plaintiff gets either all he asks or nothing ; in an arhitrium, the plaintiff may get less than he expects or more. In the latter case the referee ia appointed with latitude, with no more precise instruction than to give whatever sum he thinks fair and just {quantwm cequius et melius, id dari). The formula runs thus : quidquid oh earn rem Numerium Kegidium Aulo Agerio dare facere oportet ex bona fide. It is clear that by the time of Gains any exclusive use of arbiter for equitable (bonce fidei) actions, if such ever existed, had quite disappeared ; for Gaius (iv. 47, 63, etc.), speaking of honca fidei actions, uses the m or & judex. Cicero's analysis is undoubtedly superficial. He is evidently thinking only of contracts, and not even of all these. Thus, in an action on sT delict, the demand of damages is necessarily indefinite, yet the action is not honcR fidei. Again, in a stipulation to give an uncertain amount, or to do some act, the claim for damages must be indefinite, yet the action is ^tricti juris. Thus although all actions bonce fidei may have an indefinite demand, it is clear that many actions where the demand is indefinite are not borum fidei. A passage from Seneca (de Beneficiis, 3, 7) is quoted by Savigny to confirm his argument that bonce fidei actions were sent before an arbiter, while actions stricti juria were sent before a judex; but that passage seems to speak of an action bonce fidei as being sent before either an arbiter or a judex, and it treats the latitude of the arbiter as a great eviL The result of the authorities, then, seems to be, that, although on the one hand there was an obvious and recognised distinction between actions where the demand was definite or liquidated, and actions where the demand was indefinite, and on the other hand between actions stricti juris and actions bonm fidei, yet those distinctions are not conterminous, and it cannot be shown that to either or both were the distinct terms judex and arbiter specially appropriated. ' The fcyrmula arbitraria relates to a different state of facts. FROM TWELVE TABLES TO CLOSE OF REPUBLIC. 49 given are all cases where, on Cicero's distinction, arbiter should be employed. How is it, then, that in a judicis postulatio an arbiter should always be appointed? It would seem that the terms, if not quite synonymous, varied but slightly. Perhapsy«rf^:r suggested more strongly the compulsory authority of the referee, and arbiter indicated rather the unrestricted range of his powers.' Centumviri. — The origin and the constitution of the centumviral court are involved in obscurity. Three main facts,however, seem to be established. First, it was a permanent tribunal ; it was not constituted for the trial of a single cause. Again, while the court possessed continuous existence, the members were, in all probabiHty, elected annually, in accordance with the universal rule of the republican tenure of offices. Further, while thsjudices were for centuries selected exclusively from the patricians, the centumviri were drawn frorn the tribes — probably elected by the assembly of the tribes — the plebeians being thus admitted to the exercise of judicial functions. All the probabilities favour a very ancient origin, but we have no definite authority for placing the exist- ence of the court at an earlier date than about the middle of the third century before Christ. So closely was it identified with the ancient pro- cedure that, even when the legis actiones were abolished in all other cases (save one), the oldest of them all, the sacramenium, was still retained in the proceedings before the prsetor as an indispensable preliminary to a centum- viral trial. (Gaius, iv. 31.) As Puchta insists, the lex Aibutia did not establish the centumviral court, but this court must have been in existence when the lex JEbutia was passed. At a later period we are informed that Octavius (Augustus) transferred to deceviviri, from the ex-qusestors, the power of convoking and presiding over the centumviral court ; and there has been much speculation as to the possible connection of these decemviri with the judices decemviri mentioned by Livy about the middle of the fifth century before Christ. (Liv. 3, 55.) The history of their functions is not known, but they were still.present in court after the presidency was assumed by aprjetor. Under the empire the centumvirs sat in the Basilica Julia, and a spear {hasta), the ancient symbol of Quiritarian ownership, was planted before the tribunal. Their functions come nearer to the modern jury system than the functions of the Judices. The court was divided into four chambers, each of which sat separately, except in cases of some importance, when they were united — sometimes all together, sometimes in two sections, apparently ; but regarding the relations of the four chambers various conjectures have been made.2 The centumviral court decayed very slowly, maintaining a lingering existence down to the time of the Lower Empire.'' ' Of. Festus, arbiter; '* Arbiter dicituv iudex, quod totiu3 rei habeat arbitrium et facultatem." 2 Plin. Epist., 1, 18 ; 4, 24 ; 6, 33. Quint., Inst. Orat., 12, 5, 6. MajDZ, Court Sai Droit Romain, i., 114 [Introd., 36). The expressions duplex judicium, dual hasta (Quint., Inst. Orat., 11, 1, 78 ; 5,2, 1), and quadi-uplex judicium (Plin., Epist., i, 24 ; 6, 33) have suggested that in certain causes the court sat sometimes in two, sometimes in four sections, all heaving the cause together, but each section voting separately. » Pomponius {D. 1, 2, 2, 29) refers to a period immediately following the insti- tution of the alien pr^torsliip (B.C. 247) the creation of decemviri litibus judicandis to D 50 A SHORT HISTORY OF ROMAN LAW. In what causes did the centumviral court possess an exclusive and special jurisdiction ? It would seem that the parties were free to choose whether they would go before the centumviral court ; but the question can- not be answered satisfactorily. We do not know whether there were any trials that could be held only before the centumvirs, or whether all causes could be referred with the consent of the parties to either centumvirs or judices indifferently. But when a cause was pending before the centumvirs, preside in the centumviral court. This statement .nt once recalls the /Mdiccs decemviri that were maJe sacrosanct in B.C. 449 (Liv. 3, 55). Niebuhr^ referring specially to Vas indices, considers that the centumvirs are intended, and removes the creation of the court back to the time of King Servius ; while Zumpt (Vehef das Ceniumviral- gericht) Tends judices decemviri together (as Puclita affirms must certainly be done) and refers the creation of the court to the Twelve Tiibles, five members being chosen from each of the twenty-one tribes. It is possible, of course, that Livy has projected those officers (judices decemviri) a very long distance into the past, and that they did not exist till a century or two later. The approximate date given by Pomponius corre- sponds closely with the statement of Festus, that, when the tribes were increased to thirty-five (B.C. 241), three members were elected from each tribe, so that the exact total number was 105. Again, Ortolan, Dean Liddell, and others, place the institution of the centumviral court about the period of the original establishment of the prsetor- ship (not the alien pr^torship) at a time wheu (Livy says) there were twenty-five tribes (B.C. 387-358), so that four members from each tribe would give the exact hundred. The number, however, was not exact in later times, whether originally exact or not ; for Varro warns us to take the name centumviri roughly, and Pliny mentions in his time 180 members. Puchta discusses the matter at some length {Cursus, i. 151 ; Bk. ii. Gesch, d. Horn. Rechls, sect. 49 ; and Cursus, ii. 25-28 : Bk. iir. Gesch. d. Ram. Civil- Processes, sect. 153). He relies little on Pomponius. and not much more on Festus ; and he thinks the view of Zumpt is but a degree less probable than the view of Niebuhr. Far more significant is the connectiim between the court and the ancient procedure, which definitely establishes its existence at a time when another system had not yet replaced, or even taken its position by the side of, the legis actio. Tracing the probable history of the centumviral court, Puchta believes it to have been a late oflfshoot from the evidently older office of the decemviri litibus judicandis. The decemvirs, he thinks, were created by King Servius, to take cognisance of causes involving the ca/put of citizens or the portion of their possessions taken into account in fixing their property qualification (that is to say, the property they held in qniritarian ownership) — matters of deep and immediate public interest, which, in so far as they existed (caput and inheritances only), had theretofore been dealt with by the pontiffs and the eomitia curiafa, whose attention was now confined to non-contentious cases of that kind (adrogation and wills). For this court the sign of the hasta (signum guoddam justi dominii : G. iv. 16) wa* set up, as the symbol of public duties. After a time the centumviral court was established, taking over from the decem- viral court all the property causes, and leaving to it only the causes touching the caput (Cic. pro Ccec, 33 ; Orat. pro Domo, 29). Finally the political significance of the haata, which gave rise to the contrast of judicium privatum and judicium centumvirale, was lost sight of ; after the lex .iShwtia property cases of all sorts could come before judices privati, the centumviralcs causae themselves were conceived only from the point of view of private law, and the activity of the centumvirs became gradually limited to cases of inheritance. FROM TWELVE TABLES' TO CLOSE OF REPUBLIC. 5 1 there could not be carried before s. judex any subordinate question capable of decision in the centumviral trial. Justinian in this way explains the rule that, pending a petitio hereditatis, no dispute involving the same question could be entered before 2^ judex. For, says he, the greatness and authority of the centumviral tribunal did not suffer the question of inheritance to be decided by any less authority than themselves. (C. 3, 31, 12.) From the circumstance that Cicero enumerates in great detail the kind of causes referred to the centumvirs, it may be inferred that some preference at least was shown for that tribunal. The list that he gives ' includes causes that fall under four heads : (i) disputes as to Quiritarian ownership, includ- ing therein servitudes ; (2) wills ; (3) intestate succession {agnatio, gentilitas) ; (4) ttttela and questions of status (as freedom, citizenship, etc.). These cover nearly the whole civil law, only three topics being omitted : contracts (except so far as next may relate to this subject),, delicts, and questions of possession as contrasted with ownership. Besides, Cicero's list is professedly incom- plete. Whether the centumviral court also possessed a certain criminal jurisdiction has been disputed. Towards the time of Gaius it seems to have sat only to try questions of inheritance. Recuperatores. — While there could be only on^ judex., and there might be several arbitri, there were always several recuperatores, — at Rome, three or even five. The recuperatores need not be senators, nor need they be drawn from the album judicum^ persons that happened to- be in court, casual passers-by, or any citizens indiscriminately,, might be taken for the purpose. They exercised the same functions as ^e: judex, but, beyond the fact that they were employed in causes requiring speedy decision, we do not know to what particular classes of causes (if any) they were limited. In the beginning recuperatores are supposed to have been employed only in causes wherein aliens were parties. Festus quotes the authority of the jurisconsult ^Clius Gallus for the statement that reciperatores (recoverers) constituted the court or commission appointed under treaty between Rome and foreign kings, nations, and cities, for the decision of disputes between citizens of Rome and such other sovereign powers.^ This agrees with the later circumstance that the provincial judices were designated, not judices, but recuperatores. Upon this basis has arisen the belief that the recicpera- tores were at first the arbitrators appointed for aliens, — a scratch court, in anticipation of the organisation developed under the alien prsetor. In process of time the jurisdiction of the court would naturally be extended to Roman citizens, as it certainly did extend in the time of Cicero. III. PLACES AND TIMES OF JUDICIAL PROCEEDINGS.. In Rome the magistrates sat in the Forum or Comitium,. on their curule chairs, the lower magistrates on lower seats {subsellia)^ In the provinces, ' Cicero, de Orat, 1, 38 : ... "in causis centamviralibus, in quibuB usuoapionum, tutelarum, gentilitatum, agnationum, alluvionum, eircumluvionum,. nexorum, man- cipiorum, parietum, luminum, stlUioidiorum, testamentorum ruptorum et ratorum, ceterammque rerum innumerabilium jura versentur." 2 Compare the Plebiscitum (Lex Antonio) de Termessibus, i. Mommsen, Corp. Inscr. Lat., I. Hi ; or Bruns, Pontes lur. Horn. Antin., 85. 52 A SHORT HISTORY OF ROMAN LAW. the president imitated the form at Rome, and sat in his court on a curule chair. Later on, the courts came to be held in the Basilicas, which after- wards formed the model of many Christian churches. (Paul, Sent. 4, 6, 2.) Causes also were heard in closed buildings, called secretaria or auditona. The proceedings were, however, conducted with open doors (C. Th. i, 16, 9) ; and the practice of setting up a screen before the judge was severely repro- bated in a constitution of Constantine. (C. Th. i, 16, 7.) Anciently, the calendar was in the hands of the pontiffs and patricians, and great mystery surrounded the determination of the days on which it was lawful for the magistrates to sit ; and it was a turning-point in the development of Roman Law, when (about B.C. 304) Cn. Flavius, a clerk of Appius Claudius Caecus, wrote out a calendar, and published the forms of legal procedure. Days xan which it was lawful for the prabor to exercise his general powers were called/asii. Days on which he could not pronounce any of the words, " Do, Dico, Addko,'' were called ne/asti. There were forty dies fasti and sixty dies nefasti in the year. The other portion of the year was partially open to legal proceedings. On dies comitiales — that is, days when the people could meet for legislative purposes or elections — the praetor could act if the popular assembly was not sitting. Of these days there were 1 90. On certain other days — endotercisi or intercisi — it was an impiety to perform any of the ceremonies of the legis actioiies before the rex sacrijicuhis came down in the morning .to sacrifice a victim, and in the evening of the same day ; but the intermediate period might be devoted to legal business. The proceedings before jttdices were not affected by the dies nefasti. 'VoR judex did not represent the Roman people — he was simply a private citizen appointed by authority to pronounce a decision in a private quarrel ; and it was not necessary that he should be fettered by the rules that limited or hampered the transaction of state affairs. Here, again, is an indication of the broad difference between /z/j zXiA. judicium, between the interposition of the state and the conduct of merely private affairs. The judex might sit on dies nefasti, but he abstained from sitting on holidays {feriae). These were of two kinds — occasional and periodical. Occasional holidays {repentinae feriae') were fixed by th* magistrates on account of some occa- sion of public rejoicing or sorrow. In later times these days were called imperiales. (C. 3, 12, 4.) Periodical {soleimies) holidays varied at different times. The last day of December and the 3d of January were public holi- days. (D. 2, 12, 5 ; D. 50, 16, 233, I.) The time of sowing and harvest also was kept free from litigation in periods varying according to the custom of the province. (D. 2, 12, 4.) The distinction between- the times lawful for the acts of the magistrate and the trial of causes he-iort jiidices existed down to Marcus Aurelius. He allowed 230 days to litigation, whether before 2.prcetor or ajudex, hence called dies juriaici or dies judiciarii. The rest of the year was open to litigation with the consent of the parties. (D. 2, 12, i, i ; D. 2, 12, 6.) A constitu- tion, of date A.D. 389, by Valentinian, Theodosius, and Arcadius, begins by stating that all the year is dies juridici, but a vatation of two months was allowed for harvest ; also every Sunday, the usual holidays in January, the anniversary of the origin of Rome and Constantinople, a fortnight at Easter, FROM TWELVE TABLES TO CLOSE OF REPUBLIC. 53 the anniversary of the birth of Christ, and the Epiphany, were kept free from legal business. (C. 3, 12, 7.) In a.D: 392' Easter was made a general holiday. (C. 3, 12, 8.) IV. THE JURISCONSULTS. Junsconsui'H, Jureconsulti, Jurisperiti, Jtirisprudentes, etc. — Until the time of Diocletian, the administration of law was not confided to professional lawyers. It was regarded as a public office that each citizeri might be called upon to undertake. The praetor was, generally speaking, more of a states- man than a jurist, a politician on his way to the consulship ; not, as with us, a middle-aged lawyer retiring from active practice to exercise judicial functions. Th& judex, similarly, was a man of respectable social standing, and presumably of mtelligence and probit)-, with more or less experience of the world ; not necessarily a man of any legal knowledge. In process of time, however, there grew up in Rome a class of men that made it their business to know the law and to communicate their information to such as sought it. Hence a strange result. The men that knew the law had no direct participation in the administration of justice ; the men that adminis- tered justice did not know law. Pomponius states that the custody of the Twelve Tables, the knowledge of the forms of procedure, and the right of interpreting the law belonged in early times to the College of Pontiffs, who were then patrician officers. He further informs us that this exclusive knowledge of the practical working of the law was maintained for a century and a half after the publication of the Twelve Tables. The first person that publicly professed to give information on points of law is said to have been Tiberius Coruncanius, the first plebeian Pontifex Maximus, consul in B.C. 280. During the two following centuries, however, the task of answering questions of law seems to have fallen chiefly on aged patricians that had held high public office ; but from about a century before Christ the existence of a class of professional jurisconsults may be dated. Any one that had confidence in his own knowledge gave legal advice to such persons as had confidence enough in him to become his clients. During the republic it was entirely voluntary for a magistrate to accept, or for any one to submit to him, advice on points of law. Neverthe- less, the ignorance of the prsetor and of the jitdices naturally made them welcome the assistance that it was in the power of the jurisconsults to offer. In the first instance, the authority of the opinions of individual jurisconsu-lts varied with the public estimation of their answers and of their writings. But Augustus, with a view to increase the authority of juristic opinions (and' to have effective control over the profession), established a privileged class of authorised jurisconsults, to whose decisions special weight should attach. The earliest collection of Roman laws, the Jus Papiriajitiin of the regal period, has already been referred to. It was not till B.C. 304 that the full knowledge of the law was wrested from the patricians. In that year Cneius Flavius, the son of a freedman, and by profession (not a jurist, but) a public scrivener and notary, who had been employed as agent by Appius Claudius in that statesman's attempt to increase the political influence of the freed- men, obtained possession both of the various forms proper for the difterent kinds of process and of the lawful times of legal proceedings, and published 54 A SHORT HISTORY OF ROMAN LAW. the whole of the sacred information. Flaviiis's calendar and list of technical forms was known as Jus Flavianum. To Appius Claudius himself (censor, B.C. 307) is attributed a work De Usurpatio7iibus, now lost. A century later, about B.C. 200, Sextus ^Uus Paetus Catus (curule ffidile, B.C. 200 ; consul, B.C. 198) wrote -a work in three parts (hence called Tripertita) contammg the Twelve Tables, the interpretation of the Twelve Tables, and the legis actionem. This was designated Jus ^lianum. The jurisconsults of the ■century following are now represented by only a few legal opmions and ■scraps of writings, or mere references to such. M, Porcius Cato -either the censor (B.C. 234-149), or his son Licinianus (died about B.C. 152), both of whom bore a high reputation— and M. Junius Brutus (about the middle of the second .century B.C.) wrote commentaries on the civil law. Fabius Pictor, a younger contemporary of Cato, set forth the Jus Pontifidum; M. Manilius (consul, B.C. 149) treated of Actions ; C. Sempronius Tuditanus (consul, B.C. 129) dealt at .some length with the subject of Magistrates; and M. Junius Gracchanus, who derived his ■cognomen from his friendship with the famous tribune of the plebeians, C. Sempronius Gracchus, wrote on Roman constitutional and social history. Such men .as these may be con- :sidered to have prepared for and to have ushered in the golden age of legal 5tudy. Q- Mucius Sca;vola the pontifex (consul, B.C. 95 ; died, B.C. 82), whom Cicero, his pupil, declares to have been the most eloquent of jurists, and the most learned jurist among orators, is .regarded .as the .first to have published a complete system of the civil law. This work was arranged in ■eighteen books. He is the most ancient lawyer whose writings have fur- nished extracts to the compilers of the Digest. Another pupil of his, C. Aquillius Gallus, Cicero's colleague in the prKtorship (B.C. 66), and a jurist of much consideration, was the instructor of Servius Sulpicius. L. Cincius (of the age of Cicere) wrote on the Calendar, fhe comitia, the power of the •consuls, the office. of jurisconsult, and war (six books at least) ; and he com- piled a glossary of ancient words. Servius Sulpicius Rufus (consul, B.C. 5t), the pupil of AquiUius Gallus,. and one of the best orators as well as one of the best jurists of the age, wrote a large number of legal works, including a commentary on the edicts -of the praetors. He, too, handed on the torch to distinguished pupils, chief of whom were Aulus Ofihus and Alfenus Varus. The latter produced a very extensive and important book called Digesta. •Ofiliu.s, besides imitating his master in writing on the praetorian edicts, was the teacher both of Capito andof Labeo. And C. Trebatius Testa, a trusted .adviser of Augustus, who composed nine -or ten books dg Religionibus and several de Jure Civili, was also the teacher of Labeo.^ Functions of Jurisconsult. — The functions of a jurisconsult are summed up by Cicero {De Orat., I, 48; pro Mur., 9) in four words — respondere, cavere, ■agere, scribere. He was %3\dk respondere., when he stated the opinion he had formed on the facts of the case as submitted to him. This he would deliver to the client (at a later period, sealed with his seal, indicating imperial ■authorisation), and the .client would place it before the judex in his own ' For the fragrrenta of the Eepublioan jurisconsults, see Husohke'a lurisprudentioe Anteiustin. qu(s mpersunt, pp. 1-44. FROM TWELVE TABLES TO CLOSE OF REPUBLIC. 55 writing or with his own attestation.i Cavers is to point out all the steps necessary for the enforcement or protection of the client's rights, and parti- cularly the legal forms to be observed. Agere is to appear before the magistrate or the judex, and there give counsel in support of the client's interests. Scribere is to draw up legal instruments generally ; it may also be stretched to include the composition of treatises on law. The Roman law-student picked up his knowledge of law chiefly in the chambers of a jurist. It was always considered honourable, Cicero tells us, to impart instruction in the civil law, and the chambers of eminent jurists were filled with pupils. Cicero himself frequented the auditorium first of Q. Mucius the augur and afterwards of his still more dis- tinguished relative, Q. IHucius the pontifex. Servius Sulpicius was similarly trained by Lucilius and Aquillius. Three stages of legal education ai"e denoted in the Digest by the words instituere, audire, instruere — to lay the foundation of professional knowledge, to listen to the eminent jurist dehver- ing his views in consultation, and to build up and complete one's profes- sional acquirements. An advanced pupil was called the jurist's studiosus; a term probably implying that the pupil, although still attending in the jurist's chambers, was capable of doing business on his own account. Ivir Poste thinks that, under the empire, " probably every lawyer was called a juris studiosus until by imperial diploma he had received \\\e.jus respondendi which made him z. juris auctor." (Poste, Gaius, p. 147, 2d ed.) From the manner wherein the jurisconsults modified the law, it is extremely difficult to specify the changes that ought to be ascribed to them. It is probably to them, however, that is due the extension oi glans (an acorn) to every kind of fruit, and tignum (timber) to every kind of building material. Their influence was also felt in forms of conveyancing. Of these the most generally useful was the fictitious suit {in jure cessio), which, although resorted to long before the existence of jurisconsults as a profes- sional class, was doubtless largely extended by them. It was by their ingenuity, as Cicero complains, that women were enabled to nominate their own tutores. The great bulk of Roman law, and all that is most valuable in it, is due to the activity of the jurisconsults, down to the end of the second century of the Christian era . a glance at the Table of Statutes and Consti- tutions shows how small was the amount contributed by direct legislation. V. THE CRIMINAL COURTS OF THE REPUBLIC. The Comitia. — In theory the supreme jurisdiction in criminal cases always rested with the people in their assemblies ; although in fact it began at an early date to be delegated to commissions. The cognisable offences were at no period formally set forth in the laws, but were chiefly determined and defined by custom, and by the pubUc opinion of the time. The presid- ing magistrate was the prosecutor. He had previously given formal notice, at a public meeting, that he intended to summon the comitia on a particular ^ D., 1, 2, 47. But jurists were also consulted on all siirts of business matters outside the sphere of litigation. Cicero specifies the marriage of a daughter, the pur- chase of an estate, and the cultivatioii of a field. ^De Oiat., 3, 33.) 56 A SHORT HISTORY OF ROMAN LAW. day for the impeachment of the accused {diem dicere alicui), who was thrown into prison till the day of trial, unless he found sureties for his due appear- ance. On the day of trial, the magistrate preferred the charge, and supported it by evidence {anquisitio) ; after which he laid before the comitia a bill embodying the penalties he proposed to inflict on the accused. This bill the cojnitia dealt with, accepted or rejected, in the usual manner. They might act in precise accordance with a clear provision of the law, or they might adapt a provision of some existing law to the more or less similar circum- stances of the particular case, or they might ground their decision on some previous decisions in similar cases not embodied in any law ; or they might be guided in their judgment merely by the general feeling of the time in regard to the particular offence. The criminal legislation of the period . was by no means extensive. Special Commissions {Quastiones). — In the history of the kings there is mention of Duumviri, to whom TuUus Hostilius delegated the trial of Hora- tius ; and to the same early period belong the QucEstores Parricidii for the trial of capital cases. Owing presumably to the difficulty of properly conduct- ing complicated cases before a court so little fitted for exhaustive investiga- tion and patient discrimination of evidence, and probably under the influence of the senate, there grew up, in the early Republic, a similar practice of dele- gating the judicial power of the comitia in particular criminal cases to one or two persons called QucEsitores or QucEstores (Investigators, or Triers). These were special commissioners, who sat as judges to investigate the facts of the particular cases referred to them. They were no doubt elected by the comitia, although the senate, in matters within its jurisdiction, also usually appointed a senator as a Ousstor. The Quaestor was always assisted by a jury or body of assessors (consilium). These were chosen exclusively from the senators, until the passing of the lex Sempronia (B.C. 123), after which the area of selection varied considerably (see page 45). The opinion of a majority of the jury decided the verdict of the court, which, whether in accordance with the opinion of the judge or otherwise, was final. The first special commission recorded under the Republic belongs to the year B.C. 413, on which occasion the comitia tributa, at the instance of the senate, and with the concurrence of the comitia centuriata, appointed the consuls as Quces- tores to inquire into the murder of M. Postumius, a tribune of the soldiers with consular power.' The plan seems to have worked successfully ; and it was an easy transition, first from a commission for a particular case to a commission for all cases of the same kind awaiting trial at the same time, and next to a permanent tribunal for the trial of all cases of a particular nature. Standing Commissions {Qucestiones Perpetucs). — The Quczsiiones Per- petuce were permanent or Standing Commissions ^ for the trial of par- ticular classes of offences. The first of these courts was instituted by the 1 " Senatusoonsultum factum est ut de quiEstione PostumiauEe csedis tribuni prirao quoque tempore ad plebem ferrent plebesque prseficeret quaestioni queiii vellet. A plebe consensu populi consulibus negotium mandatur. " (Liv. iv. 51.) " They were designated perpeluce in opposition to the special commissions. Per- petuce, as in the expression edictum perpetuum, means simply lasting through the year FROM TWELVE TABLES TO CLOSE OF REPUBLIC. 57 lex Calpurnia, R.c. 149, for the trial of persons charged with malversation in the provinces {repetunda)} The next was the court that took cognisance of bribery at elections {ambitus), which is supposed to have been created by the lex Maria, B.C. iig.''' The impairment or degradation of the dignity of the Roman people, or of such persons as they invested with authority (inajestas) does not appear as a crime in enactments earlier than the lex Appuleia, about B.C. 100.^ There existed in B.C. 90 (although the date of institution is unknown) a court for cases of embezzlement of public property {peculatus).* More courts were created by leges CornelicB of Sulla, B.C. 81 : for vis (forcible obstruction of the administrative authorities or officers) ; * for parricidium (murder)," and incendiiim (arson),' by lex Cornelia de sicariis et veneficiis; and for falsum (forgery, including coinage of base money and bribed evidence).* These were the most important of the standing commissions. The legislation of Sulla confirmed and expanded the growing systematisa- tion of the criminal law, and drew within the cognisance of these specialised tribunals very nearly the whole of the ordinary criminal business of the state. Each court was established by a law, which defined the crime and the punishment of persons that should fall under its jurisdiction, and regu- lated its constitution and procedure. The theoretical supremacy of the comitia remained ; and the cotnitia continued directly to exercise their judicial power in all cases not provided for by a standing commission — for instance, in cases of perdicellio (high treason), which were always tried of office of the presiding magistrate, the principle of the tribunal alone being "per- petual," or established for an inde6nite period. ^ The laws de repetundis were : (1) lex Calpumia, B.C. 149 ; (2) lex Junia, between 149 and 122, about 134 ; (3) lex Acilia, about 122 ; (4) lex Servilia of Glauoia, about 111 ; (5) lex Cornelia of Sulla, 81 ; (6) lex Julia of Caesar, 59. ^ The laws de ambitu were : (1) lex Cornelia Baehia, B.C. 181 ; (2) lex Cornelia Fulvia, 159; (3) lex Maria, 119; (4) lex Faiia ; (5) lex Acilia Calpumia, 67; (6) lex TuUia, 63 ; (7; lex Licinia, 55 ; (8) lex Pompeia, 52 ; (9) lex Julia of Augustus, 18. As early as B.C. 432 a plebiscitum had been passed forbidding candidates to wear a conspicuous dress : and the lex Poetelia, B.C. 338, discountenanced excessive zeal iu canvassing. ^ The laws de majestate were : (1) lex Appuleia, B.C. 102 or 100 ; (2) lex Varia, 92 ; (3) lex Cornelia, 81 ; (4) lex Julia of Caesar, which was revived and oppressively extended under the empire. ^ The law establishing this court remained valid till the lex Julia (of Caesar or Augustus). The lex Julia included sacrilegium (stealing or injuring religious property) and the crimen depecuniis residuis. 5 The laws de vi were : (1) lex Plautia, B.C. 89 ; (2) lex Cornelia, 81, establishing the Qucestio Perpetua de vi ; (3) lex Lutatia, 78, supplementary to lex Plautia; (i) lex Pompeia, 52 (temporary, with special reference to the luurder of Cloilius and the subsequent disturbances) ; (5) lex Julia (of Caesar), 46, superseding previous laws. By the last, or by leges Julice of Augustus, vis publica and vis pricata are pointedly distinguished. s Somewhat modified by the lex Pompeia de Parricidiis, B.C. 55. ' When connected with a riot, incendium also fell under the lex Pompeia demand the lex Julia de vi. 8 The penalty of all the Cornelian laws was exile [aqua! et ignis interdictio). 58 A SHORT HISTORY OF ROMAN LAW. before the comitia, or before special commissioners, when not included under majestas or vis. The senate possessed no criminal jurisdiction over citi- zens, although it regularly tried state crimes committed by the allies, and had always assumed the unconstitutional right of initiative in cases of exceptional emergency. Unimportant crimes were dealt with by the magistrates pos- sessing imperium, and punished by imprisonment, fine, or even floggmg. The presiding judge of the standing commissions was not elected directly by the comitia; he was either one of the prEtors or a special Judex Quczs- tionis, and the prstor was nominated by the law creating the particular court. By the lex Calpurnia, for instance, and again by the lexAcilia, the presidency of the court de repetundis was naturally conferred on the alien praetor. But the great increase of civil business soon gave full occupation to both the alien and the city prKtor, and the remaining four prastors, instead of pro- ceeding to their several provinces on election, were detained for a year at home to preside in the criminal courts. Sulla increased the courts to eight or nine, and the prstors to eight, six of whom were now free to preside at criminal trials. They distributed the courts among them by lot. For each of the courts not provided with a praetor as president, a supplementary judge, called judex quastionis, was appointed. Concerning the judex quastionis little is known. He sat for the praetor, with equal authority, as president of a criminal commission. Unlike the preetor, he was required to take an oath on assuming office. How he was appointed, whether by the comitia or by the prastor, or by the special law of the court, is not known ; neither can we tell whether he was appointed for some department of the work of the court, or for the particular occasion, or as a permanent deputy. Two commissions were not given to one person ; and, while there were fewer spare praetors than there were criminal courts, the most obvious way of supplying presidents was to appoint 3. judex qucEsHonis for each judgeless commission. The necessity for the continuance of this appointment was finally obviated by the great increase of prstors under Julius Caesar and Augustus. The presiding judge was charged solely with the administration of the provisions of the law govern- ing his particular court. He had no voice in the decision, which was wholly a matter for the jury. But an unfair judge might indirectly sway the trial, by urging embarrassing technicalities, or by falsely reporting the verdict as shown by the state of the ballot. The classes that the jury {judices) were drawn from, their qualifications for office, their number, and the successive judiciary laws relating to them, have been already fully set forth (page 44). Under the Qucestiones Perpetuce the procedure was pretty much the same in all the courts. The general course was this. The intending im- peacher (it was now open to any citizen to prosecute) applied to the president of the court that took cognisance of the kind of charge to be brought, for leave to prefer an accusation {postulatio). If two or more persons made simultaneous application, a jury decided which of them should be the impeacher {divinaiio). The impeacher then formally stated the name of the accused and the crime to be charged against him {nominis or criminis delatio). The accused was next cited before the praetor, and the charge was preferred against him in person [citatid) ; upon which he was interrogated for the purpose of eliciting admis- FROM TWELVE TABLES TO CLOSE OF REPUBLIC. 59 sions, so as to narrow the issues to be tried {interrogatio) ; and a formal charge was thereupon drawn up {inscriptio) and signed by the impeacher and his supporters {subscriptio). The judge then formally registered the name of the accused {nominis receptio), and appointed a day for the trial, which, unless fixed by the special law regulating the guasHn, or varied by other special circumstances (such as difficulties in procuring the evidence), was generally the tenth day following. On the day of trial, the jury was chosen by ballot from the available list, unless the special law regulating the quastio ordained otherwise ; and, if any of them failed to appear when called, the judge had power to enforce their attendance or to punish their absence. If the impeacher did not appear, the accused was instantly discharged ; but a fresh process might be instituted. If the accused did not appear, sentence was pronounced against him, late in the day, in terms of the special law of the court. Both impeacher and accused might conduct their own case, or obtain the assistance of counsel and friends. On the conclusion of the evidence, the jury gave their verdict, at first openly, but after the /^;f Cojj-za (B.C. 137) by ballot. It might be expressed in any one of three forms — Not Guilty {Absolve), Guilty {Condemno), and Doubtful {Non Liquet). Equal votes were construed favourably to the accused. In case of Doubtful, the judge said Amplius ("Further," " More fully"), and the cause was heard a second time, or oftener {ampliatio), until the jury were able either to acquit or to condemn. About B.C. in, however, the lex Servilia of Glaucia discontinued ampliatio and introduced comperendinatio, or the deferring of the trial at the point of the verdict to the next day but one following.^ There were now two stages in the trial. In the first stage [actio prima), both sides stated their case, examined the witnesses, and summed up the evidence ; the proceedings were now suspended till the day after the morrow, when the second stage (actio secundd) came on, and both parties could bring forward fresh evidence and discuss the case over again. At the end of the second hearing, the jury must either acquit or condemn ; they were not permitted to declare that they could not make up their minds {Non Liquet). The lex Servilia ruled the trials de Repetimdis down to the time of Sulla. Zumpt maintains that, after the laws of Sulla, comperendinatio still remained in trials for all official crimes {Amtsverbrecheri), while for all common crimes the ampliatio was introduced. By the lex Aurelia (B.C. 70), as he holds, comperendinatio was abolished, but ampliatio did not succeed to its place. A single actio was substituted — which, however, might last for several days — so that it was no longer competent to vote a fresh hearing, and it was necessary to pronounce a final judgment. (Zumpt, Criminalrecht d. Rom. Rep., II. 2, ^ Cicero [in Verr. IL 1, 9) says the lex Acilia permitted no ampliatio or other adjournment after all was ready for the verdict. He also ascribes the introduction of comperendinatio to the lex Servilia of Glaucia, before which he says ampliatio was per- mitted. But the lex Acilia repetundarum permitted ampliatio (Bruns, Pontes lur. Rom. Ant, p. 52) ; and Cicero's statement either applies to another lex Acilia, oris mistaken. A further alternative is — that the lex repetundarum given by Mommsen and Bruns as the lex Acilia is neither the lex Servilia nor the lex Acilia. Mommaen, however, rejects Cicero's statement as to the lex Acilia — " ipsis Ciceronis verbis pcssime lectia" — and unravels the whole question. [Corp. Inscr. Lat. I. £5.) 6o A SHORT HISTORY OF ROMAN LAW. 127; 211 ; 214). The jury further estimated the penalty of the accused on condemnation {litis c2stimatio\ if pecuniary ; and in this they were guided by the special law of the court, which prescribed perhaps double, treble, or quadruple the amount charged against the accused. Vr. REPUBLICAN SOURCES OF LAW. During the Republic there were three direct and three indirect sources of law. Formally and directly law emanated chiefly from the two popular as- semblies, and to a certain small extent from the senate. A lex (or populi-scitum), or statute, was an enactment passed by the comitia centuriata, on the proposal of a senatorial magistrate, — for instance, a consul or a prsetor. From first to last leges were binding on the whole people, patricians and plebeians alike. Aplebiscihcm was an enactment passed by the comitia tributa, on the proposal of a plebeian magistrate, — usually a tribune. At first plebiscita were binding on the plebeians alone. By the lex Hortensia, B.C. 287, how- ever, it was finally settled that they should be binding on the whole people, patricians and plebeians alike. They were commonly designated leges; as lex Caiiuleia, lex Aquilia. For the last half of the republican period these two independent legis- lative bodies worked side by side with surprising harmony and mutual forbearance. Perhaps this absence of serious discord was considerably due to the superior interest of each in different matters. The comiiia tributa seems to have concerned itself chiefly with private law, while the comitia centuriata attended to matters of government and foreign relations. During the latter half of the Republican period the plebiscites became of increasing importance. A Senatiisconsultum was a resolution passed by the senate, and not vetoed by a tribune of the plebeians. The senate never possessed or claimed the right to make or to repeal a law. But in the early half of the Republic they appear to have insisted on revising and sanctioning all bills that were to be submitted to the comitia; and a law of B.C. 67 seems to have stopped their occasional assumption of the right to suspend temporarily, in favour of an individual, the operation of a law. Further, the senate, of its own authority, was in the habit of issuing administrative edicts that possessed the force of law in such matters as were not provided for by any exist- ing law. (See Appendix 11. to this section, p. 65.) The three informal or indirect sources were — the Edicts of the magis- trates, and especially of the pr^tors, long-continued and generally recognised customs, and the opinions delivered by the jurisconsults. The two last were commonly rendered effective through absorption in the prKtorian edicts. To the above-named sources of written law, Cicero adds previous de- cisions {res judicata) and equity {aquitas). " The legislative power of the popular assembly and the absence of legis- lative power in the senate and the prEtor were marked by a difference of style in the lex and plebiscite, edict and decree of the senate : while the lex FROM TWELVE TABLES TO CLOSE OF REPUBLIC. 6 1 and plebiscite employed the imperative {damnas esiojtes potesiasgue esto, etc.) the resolutions of the senate scrupulously avoid the imperative, and are clothed m the forms placere, censere, arbitrari, etc., as if they were rather recommen- dations than commands ; and the edicts and interdicts of the praetor are couched in the subjunctive {Exhibeas, Restiiuas, etc.), a milder form of impera- tive. Or to show that their force and operation is limited to his own tenure of office, they are expressed in the first person {actionem dabo, raium habebo, vim fieri veto). When he has authority to command, he shows it by using the imperative, as in addressing litigants {mittite ambo hominetn, inite viam, redite), ox t\ie. ]\xAge. {condemnato, absolvito)." (Poste, Gaius, I, 1-7 comm., p. 36 (2d ed.). After Ihering, Geist des Rom. Rechts, 47.) APPENDIX I. TO THE FOEEGOING SECTION. BEl'UBLICAN LEGES. The following is a conspectus of the most important hqes (including plehiscita and a few privilegia) that have come down to us with particular titles from the period of the Republic. It may be noted that a lex generally took its title from the gentile name of its proposer, as lex Hortensm ; sometimes from the two consuls or the magis- trates, as lex AoUia Calpurnia, lex Papia Poppcea ; sometimes from its object, as lex Sempronia judtciaria or lex Cincia de donis et munei-ibus : — B.C. 508. Leges VaXerke, securing annual magistracies and right of appeal. ? 492. Lex Icilia, forbidding tribune to be interrupted while speaking, or dis- persal of assembly of tribes. B.O. 470 is also given. 4S6. Lex Cassia, agraria,. ? 472. Lex PinariO; giving judex (in sacramental procedure) on 30th day instead of at once. "Voigt and Muirhead prefer B.C. 432 ; against Momm- sen, Rudorff, Huschke. 471. Lex Publilia, permitting the tribes to elect the tribuni plebis. 456. Lex Icilia, assigning the Aventine to the plebs. 455. Lex A teimia Tarpda, empowering magistrates to fine persons resisting their authority, and fixing maximum line. 449. The Twelve Tables. 449. Lex Dui'ia, against leaving the people without tribunes, or creating magis- trates sine provocatione. 449. Leges Valerice- ffwatice, enacting that plebissita, after confirmation of the patres, should bind the whole people ; giving right of appeal ; and guaranteeing inviolability of tribunes, aediles, etc. (plebeian magis- trates). 44S. Lex Trebonia, election of tribunes. 445. Lex Canuleia, conceding conubium of patricians and plebeians. 434. Lex .Emilia, censors to hold oflice for a year and a half only. 430. Lex Julia Papiria, fixing money values in fines instead of sheep and cattle values. ? 390. Lex Apulcia, sureties. So Eudorff and Huschke. Also referred to 230 (Voigt), and 102 (Appleton, Poste, Sandars). ! 383. Lex Publilia, de sponau. (Less probably, 399.) 62 A SHORT HISTORY OF ROMAN LAW. B.C. 867. Lerjcs Lidnice, election of consuls, one to be a plebeian ; ager publieua; interest paid on loans to be considered as so much in repayment of principal; decemvirs (half of them plebeians) to keep Sibylline books. 358. Lex Pmielia, against too zealous canvassing ; first lex de anibitu. 357. Lex Manlia, imposing tax of five per cent, on value of manumitted slave. 352. Lex Marcia, against usury. 342. Lix Licinia, re-enacted ; both consuls may be plebeians. 341. L(x Genucia, forbidding usury. 339. Leges Publilice, pairum audoritas unnecessary to validity of plebiscita; _ patrum auctm'itas to be given before voting in comitia centui'iata; one of the two censors to be a plebeian. 332. Lex Pnpiria, granting civitas sine svffragio to the Accerani. 325 or 313. Lex Patelia, de nexis. 300. Lex Ogulnia, plebeians admitted as pontiffs and augurs. 300. Lex Valeria, right of appeal. ii87. Lex Hortensia, resolutions of tribes to bind all citizens, directly. ? 287. Lex Aquilia, introducins actio damni injiirice. ? 287. Lex Mcenia, patrum nuctoviias unnecessary to election of magistrates. ? 244. Lex Silia, de ponderibus. So Haubold and Eudorff. Bruns (42) thinks the grounds uncertain. ! 244. Lex Siiia, introducing (as Gains says ; or regulating, as Sir H- S. Maine thinks) cundictio, for cases of cei'ta pecunia. So Huschke. Ihering places it in first half of the fifth century u.o. (B.C. 350-300) ; Voigt, I'.c. 443-425. (Cf. Jluirhead, p. 277, note to Gaius, iv. 19.) ? 234. Lex Calpurnia, extending condlctio to cases of omnia cei-ta rea. ? 243-124. Lex Papiria, de sacramentis. (Bruna, 43.) 232 or 228. Lex Flaminia, agraria. 215. Lex Oppia, sumptuary. 204. Lex Cincia, de donis et munerihus. (Bruns, 43.) 198. Lex Atinia, prohibiting usucapion of res furtivm. (Cf. Bruns, 43.) 193. L/ex Sempronia, de fenore. making the law of money lent the same for Socii and Latini as for Eoman citizens. 192 or 180. Lex Baebia, ordaining that four and six prffitora should be elected alter- nately ; not observed. Before 186. Lex A tilia, authorising city praator and majority of plebeian tribunes to appoint tutor, at Borne. 254-184, Lex Platoria, in favour of minors. Eeferred to by Plautus (B.C. 254-184). '! 183. Lex Furia, testamentaria, limiting amount of legacies. 181. Lex Orchia, sumptuary. 181. Lex Cornelia Baebia, de ambitu. 179. Lex Annalis or ViUia, fixing minimum age of candidates for the higher magistracies. ? 173. Lex Cicereia, sureties. (Gaius, iii. 123.) ? 170. Lex JEbutia, introducing the Formulary Procedure. Date very uncertain ; conjecture ranges from middle of fifth to middle of seventh century u.o. (B.C. 300-100.) Muirhead prefers about B.C. 247 (p. 283, Gaius, iv. 30, note). Poste, about 170. 169. Lex Voconia, imposing disaldlities ou women as to succession, and limiting amount of legacies. (Cf. Muirhead, p. 153 ; Gaius, ii. 226 note.) 161. Lex Fannia, sumptuary. FROM TWELVE TABLES TO CLOSE OF REPUBLIC. 63 B.O. 159. Lex Cornelia Fulvia, de ambitu. 149. Lex Calpurnia, repetundarum. 143. Lex JDidia, sumptuary. 139. Lex Gabinia, jubellaria, introducing tallot in election of magistrates. 137. Lex Cassia, taheUaria, introducing ballot in judicia jpopuli (except for perduellio : cf. Lex Cailia, B.C. 107). ,,.„',„_ \ Y Lex Junia, repetundarum. 133. Lex Sempronia, agraria. 131. Lex Papina, tabeUaria, introducing ballot in enactment and repeal of laws. ? 130. Lex Atinia, giving senatorial rank to tribune. 126. Lex Junia, de peregrinis, banishing aliens from the city. 123. Lex Sempronia, de capite civium Romanorum, enacting that the people alone should decide on the caput of a citizen. 123. Lex Sempronia, judiciaria. 123. Lex Sempronia, ne quis judicio circumveniretur. 123. Lex Sempronia, de provinciis consularibus (repealed by Caesar). 122. Lfix Fannia, banishing Latini and Italici from the city. ? 122. Lex Acilia, repetundarum. Mommsen seems to have shown that it must be placed 123-121 ; Zumpt prefers a few years later, say 118. 119. Lex Maria, de ambitu, supposed to have established the Quoestio Per- petua., 119. Lex Thoria, agraria, as to land tax [vectigaT). (Cf. Brims, Lex Agraria, 67.) 119-67. Lex Fabia, de ambitu. ? 111. Lex Serinlia, repetundarum, of Glaucia. 107. Lex Caelia, tabeUaria, introducing ballot in oases of perdueUio (supple- menting lex Cassia, B.C. 137). 106. Lex Servilia, judiciaria, of Caepio. If ever passed, was very soon swept away. 104. Lex Cassia, compelling demission of senatorship in certain cases. 104. Lex Marcia, agraria. ? 103. Lex Licinia, sumptuary. 102 or 100. Lex Appvleia, majestatis. 100. Lex Appuleia, agraria. 95. Lex Licinia Mucia, de civibus regundis, scrutinising title to citizenship. ? 95. Lex Furia, de sponsu. (Gains, iii. 121 ; iv. 22.) Usual date, 95. But Kudorff gives B.O. 345 ; Huschke, beginning of fifth century u.c. (about B.C. 350 or later) ; Voigt, 218 ; Bruns, second half of sixth century (B.C. 204-154), holding that it must have been later than lex Cincia (204) ; Appleton, 100 or 99. See Muirhead, p. 221, Gaius, iii. 121, note. 91. Lex Livia, judiciaria. 90. Lex Julia, as to the Tribes ; and giving citizenship to Latini and Sooii. 89. Lex Plautia Papiria, as to the Tribes ; and giving citizenship to aliens being citizens of federate states. 89. Lex Pompeia, giving citizenship to Cispadani, and Latinitas to Trans- padani. 89. Lex Plautia, judiciaria. 89. Lex Plautia, de m. 88. Lex Sulpicia, as to the Tribes, and new citizens. 64 A SHORT HISTORY OF ROMAN LAW. B.C. 81. Lex Cornelia, de falsis, also called testamentaria. Under favourable construction of this law (heneficio legis Cornelice, Paul., Sent. iii. 4a, 8) comes provision as to vfills of citizens dying in captivity. Sandars ad J., ii. 12, 5. Ct. TJlp. xxiii. 6. Others refer this provision to a Lex Cornelia de captivis, B.C. 67. 81. Lex Cornelia, judiciaria. 81. Lex Cornelia, repetundarum. 81. Lex Cornelia, de XX. qucestorihus. (Bruns, Pontes, 82.) 81 (83-80). Lex Cornelia, de sicaHis et veneficiis. (Bruns, Pontes, 85.) 81. Lex Cornelia, de sponsoribus. So Husohke and Poste. Voigt, B.C. 327. 81. Lex Cornelia, sumptuary. 80. Lex Cornelia, tribunitia, diminishing the power of the tribunes. Before 80. Lex Remmia, branding for calumny. (Cio. pro Rose. Amer., 19, 20.) 78. Lex jEniilia, sumptuary. 78. Lex Lutatia, de vi, 71. Lex Antonia, de Termefsibus. (Bruns, 85.) 70. Lex Pompeia, tribunitia, restoring the powers of the tribunes taken away by Sulla, B.C. 80. 70. Lex Aurelia, judiciaria. 67. Lex Acilia Calpumia, de ambitu. 67. Lex Cornelia, de captivis. See Lex Cornelia de falsis, B.C. 81. 67. Jjex Cornelia : praetor must abide by his edict. 65. Lex Papia, banishing from the city persons not domiciled in Italy. C3. Lex Tullia, de ambitu. 62. Lex Cacilia, de vectigalibus, untaxing lauds and harbours in Italy. 60. Lex Plavia, arjraria. 59. Lex Julia, ar/raria. 59. Lex Julia, repetundarum. 58. Lex Clodia. attacking censorship. 55. Lex Licinia, de ambdu. 65. Lex Pompeia, judiciaria. 55. Lex Pompeia, de parricidiis, 51. Lex Caicilia, de eensoribus, repealing lex Clodia, B.o. 58. 52. Lex Pompeia, de ambitu. 52. Lex Pompeia, de vi. 49-42. Lex Rubria, de Gallia Cisalpina. (Bruns, 91.) 47. Lex Julia [dej'enore or) de pecuniis mutuis or creditts. 46. Lex Julia, judiciaria. Supposed to be one of the leges JulicB (Gaius, iv. 30), restricting legis actiones. Cf. lex Julia judiciaria, B.o. 25. ? 46. Lex Julia, de vi. May belong to Csesar or Augustus. (Bruns, 104.) 45. Lex Julia, municipcdis. (Bruns, 95.) 44. Lex Vrsonitana s. Colonia'. Jalia: Genetivce. Caesar's charter to Latin colony at Urso, near Seville. See references collected in Muirhead, p. 9, Gaius, i. 22, note, and Bruns, Pontes, 110 following. ? . Lex Julia, sumptuary. ? . Lex Julia, de annona. May belong to Caesar or to Augustus. 40. Lex Palcidia, reserving one-fourth of inheritance to testamentary heir (Bruns, 103.) 39. Lex Quinctia, de aqumductibus. (Bruns, 105.) 34. Lex Scribonia, prohibiting usucapion of servitudes. FROM AUGUSTUS TO JUSTINIAN. 6=5 Of quite uncertain date are the following : Lm Creperia (90 Stu.lemund, Gaiua, iv. 95), fixing sponsio in oentnmviral causes at 125 sesterces. Husohke takes the reference to be to the lex Julia Papiria, B.C. 430. See Muirhead, p. 316, Gains, iv. 95, note 4. Zex Minicia (so Studemund, formerly MenHa, Gaius, i. 78-79. Gf. Ulp. T. 8), as to status of children of parents of different condition. Lex Vallia (so Studemund, formerly Valeria, Gaius, iv. 25), amending procedure by manus injectio. Later than lex Furia, which may safely be thrown back a century beyond the usual date. APPENDIX II. TO THE TOEEGOING SECTION. SENATDSCONSULTA. Examples of senatusconsulta under the Republic may be seen in Bruns, Pontes, pp. 145-151 : sc. de Bacchanalibus (b.o. 186) ; sc. de Philosophis et Rhetoribus (B.C. 161); sc. de Tihurtihus (seventh century n.c); and sc. de Asclepiade Clazomenio sociisque (b.o. 78). A specimen of a senatus auctoritas (b.c. 51) ia given in Bruns, 154. C H A P T E R I V. FROM AUGUSTUS TO JUSTINIAN (B.C. 3 1 — A.D. 565). I. PUBLIC EVENTS AND IMPERIAL ENACTMENTS. TAe Political Transition. — From the day of the battle of Actium (B.C. 31), the Roman world lay at the feet of Octavian (Augustus). Warned by the fate of his uncle, the victor, while securing his personal supremacy, conciliated the people by an ostentatiously assiduous regard for the forms of popular government. Gradually but surely he gathered into his own hand all the important powers exercised by the repubUcan magistrates, at the same time permitting the senate practically to supersede the comitia as representative of the people. In the convulsive strife of personal ambitions the senate had strengthened their authority, and it suited the professed humility of Octavian's policy to accept at their hands the honours of the state. In B.C. 29 they conferred on him the title of Imperatpr, implying the possession of supreme power ; in B.C. 28, the title of Princeps Senatus ; in B.C. 27, Azigustus j in B.C. 23, tribunician power and proconsular authority; in B.C. 19, consular power ; and in B.C. 12, the title of Pontifex Maximus. In B.C. 27, the pro- vinces were divided, as we shall see further, between the emperor and the people (or the senate), but the command of the troops secured all substantial power to the emperor. Thus the whole power of the Roman empire was laid, with every show of constitutional procedure, in the hollow of the emperor's hand. Magistrates with republican titles, indeed, still continued E 66 A SHORT HISTORY OF ROMAN LAW. to be elected and to exercise their funqtions, but their real power was trans- ferred piecemeal to new imperial magistrates, and they were all overshadowed by the active predominance of the emperor. A like fate attended the comitia. For many years the comitia curiata continued to pass leges curiata in confirmation of adoptions. It was gradually superseded, however, by the senate, whose consent was considered sufficient ; and at length Diocletian enacted (a.d. 286) that the permission of the empei'or, published in the court of the praetor or of the president of a province, should have the force of the ancient law. The comitia centuriata and tributa, again, apparently ceased after Pharsalia (B.C. 48) to be consulted on war and peace, and under Augustus they lost all jurisdiction, theoretical^ as well as actual, in criminal trials. They were still summoned to consider bills ; but this power also was gradually superseded by the constitutions of the emperor and the resolutions of the senate passed with his approbation, and died out just before the end of the first century after Christ. As late as the second century, they were still assembled for the election of magistrates ; but they had long ceased to possess an atom of real authority, for Augustus, following the example of Julius Caesar, recommended {coinmendo vobis) the consuls and one-half of the candidates for each of the other magistracies, and under Tiberius all the magistrates not recommended by the emperor were put forward by the senate. By the end of the third century they had ceased to be summoned even to go through the form of sanctioning the choice of the emperor and the senate. Augustus (B.C. 31 — A.D. 14). — The political situation under Augustus has just been explained. The changes in the law effected by him referred mainly to three matters, (i) The lex Julia de Maritandis Ordinibus, re- jected by the comitia tributa in B.C. 28, and not passed till B.C. 18, or even (as others think) A.D. 4, was supplemented by the lex Papia et Poppcza in A.D. 9. Apart from the separate titles, these laws were also spoken of as the leges (or lex) "Julia et Papia, or novcz leges, or simply leges. The scope of these enactments, the most extensive after the Twelve Tables, was intended to be wide enough to touch every source of the abounding moral depravity, which was ruinously thinning the ranks of 'legitimate citizens. " Not only marriage," says Ortolan, " but everything even remotely connected with it — betrothal, divorce, dower, gifts between husband and wife, concubinage, inheritance and the period allowed for entrance upon it, legacies and their devolution, dies cedens, the capacity or the incapacity of beneficiaries to receive— in fine, the rights, privileges, or particular dispensations granted under divers special circumstances to fathers or to mothers who had chil- dren, or who had a specified number." (Ortolan, History of Romati Law (Prichard and Nasmith), sec. 70, par. 370, p. 309.) These marriage and paternity laws were diligently commented on by the jurists, as appears from the fragments of various treatises ad legerii Papiam preserved in the Digest. They suffered very gradual extinction at the hands of Caracalla, Constan- tine, and Justinian. (2) Fideicommissa and codicils, embodying informally the last wishes of testators, were more liberally considered and protected on equitable grounds. For such cases two special prastors {fideicoiiimissarii) were appointed under Claudius, one of whom was suppressed under Titus. (3) By the lex Mlia Sentia (a.d. 4) and the lex Fujia Caninia (a.d. 8), severe FROM AUGUSTUS TO JUSTINIAN. 67 restrictions were placed on the enfranchisement of slaves. The freedmen were felt to be too numerous. In the reign of Augustus, seven centuries and a-half after the foundation of Rome, Jesus Christ was born at Bethlehem, in Jud^a. The influence of Christ's teaching on the Roman law will be considered presently. Tiberius (a.d. 14-37). — The mantle of assumed moderation and humility fell from Augustus on the shoulders of Tiberius. Under him, however, the popular election of magistrates was transferred to the senate, which was further occupied in busily proaouncing sentence of death for the elastic crime of treason. The chief enactment of the reign was the lex Jtitiia {Norlcfia] (a.D. 19), modifying the position and rights of freedmen. Hadrian (a.d. 117-138). — Beyond the prcEtores fideicomniissarii of Claudius (a.D. 41-54) and Titus (A.D. 79-81), there is nothing to remark on' the times from Tiberius to Hadrian,, except the violent supremacy of the army and the tragical fate of successive emperors. Under Hadrian a new order of things seems to- arise ; or perhaps, to some extent,, it is now that the storms clear away, discovering the existence of numerous changes hitherto unperceived. Italy is divided into four provinces, administered from Rome under consular governors,, who, at a later period, were succeeded by cor- rectores or pmsides. The auditorium^ a section of the consistorium, of the emperor, is constituted a separate council. The pr^torian prefects have added civil to military jurisdiction. The means of appeal are more carefully organised, from inferior magistrates to superior, and at last to the emperor. The Perpetual Edict is finally arranged and authorised.. The opinions of the jurists are for the first time, on condition of being unanimous, recognised as written law. Constitutions of the emperors, although none are definitely ascribed to an earlier date, have probably been issued for a century previously. Antoninus Pius (A.D. 138-161) engaged at the publtc expense teachers of philosophy to conduct classes both at Rome and in the provinces. He alleviated the lot of the slave, by making cruel treatment a ground of com- pulsory sale. Antoninus Caracalla (A.D. 211-2^17). — On the assassination of Com- modus (A.D. 193), an outburst of military violence, during which the empire was actually sold by auction to the highest bidder, was succeeded by the reign of Septimius Severus (A.D. 193-21 1), a pupil and admirer of Papinian, and then by that of Caracalla, the great jurist's murderer.. Caracalla ex- tended the rights of citizenship to every subject of the Roman empire ; an act that did not affect the laws of enfranchisement, or interfere with the judicial condemnation of citizens to loss of rights of citizenship. He also modified the leges Julia et Papia, doubling (increasing from one twentieth to one-tenth) the duty on enfranchisement, inheritance; legacies, and dona- tiones mortis causa, and sweeping the caduca of coelibes and orbi into the fiscus. Diocletian (a.d. 284-305). — From the time of Alexander Severus (A.D. 222-235), the study of jurisprudence declined, and almost died out, not to be revived with any brilliancy till the rise of Tribonian in the time of Justinian, three centuries later. For the next fifty years, down to Diocletian, the political history is simply a bloody chronicle of the making, unmaking, 68 A SHORT HISTORY OF ROMAN LAW. and murderin-g of emperors. In the meantime the Christian religion was silently and rapidly permeating the empire, undermining the formal institu- tions of the pagan worship, strengthening the practical application of the equitable conception of law, and steadily making its way under the encour- agement of severe persecutions — one of the most severe occurring under Diocletian (a.d. 303). The attitude of the tribes pressing on the northern frontiers was ^seriously menacing the integrity of the empire. By every incursion they gained some advantage ; they either carried off considerable booty, or retired with bribes from the treasury of a weak emperor. They were temporarily borne back by Diocletian, who braced up the discipline of the Roman legions, and directed them with energy. In 286 he assumed Maximian as a colleague, created him Augustus, and entrusted him with the defence of the western empire ; and in 292, in order to cope more success- fully with the increasing dangers, the emperors chose as lieutenants and presumptive successors Constantius and Galerius, and proclaimed them Caesars. Diocletian now ruled the east, from Nicomedia ; Maximian ruled Italy and Africa, from Milan ; Constantius ruled Britain, Gaul, and Spain, from Treves ; and Galerius ruled lUyricum and the line of the Danube, from Sirmium. By a constitution of A.D. 294 Diocletian abolished the Formulary System, and established the extraordinary as the ordinary procedure. Constantine (A.D.306 or 313-337). — Diocletian had laid down the purple in 305, to pass the remaining eight years of his life in quiet retirement. In 307 six emperors were contending for the supremacy; in 312 Constantine became master of the West, and next year Licinius became sole emperor of the East. In 314 the two rivals fought for the mastery, and Licinius bought peace by the cession of Ulyricum, Pannonia, and Greece, to Constantine. After some nine years, war again broke out between them, and Constantine crushed Licinius, and soon afterwards put him to death (A.D. 324). Con- stantine was now sole emperor. In 330 he established Byzantium as the capital of the empire, renamed it Constantinople, and conferred upon it the privileges of Rome. To Christians Constantine had extended protection while he was Csesar in Gaul, and still more after the victory that made him master of the West (312). In 314 Licinius had published an edict at Milan for the same pur- pose. In 325 Constantine, now sole emperor, formally embraced Christianity and proclaimed it as the rehgion of the empire. In the same year he attended the first general council at Nicsea, when the views of Arius were condemned. The whole of the ancient sacred law, with all the public law dependent on it, was swept away. The Christian bisliops ranked with the highest digni- taries, presided in courts of their own, and wielded great influence in the state. Religious corporations were permitted to hold property ; and now the heretics, and not the Christians, suffered from legal disabilities. The influences of Christian principle and sentiment, indirect as well as direct, worked powerfully. The exercise of the patria potestas was restricted and softened, in regard both to the person and to the property oi filiifamilia ; and, in particular, the incapacities ot coelibcs and orbi, imposed by the leges Julia et Papia, were almost wholly removed (a.d. 320). Constantius (a.d. 337-361).— The persecutions of non-Christians, which FROM AUGUSTUS TO JUSTINIAN. 69 sullied the reign of Constantine, were carried on still more hotly under Con- stantius, who closed the pagan temples, and punished pagan rites with death and confiscation. Under Julian (a.d. 361-3) Christianity was temporarily discouraged, but presently recovered its commanding authority. Towards the end of his reign (.4.D. 360) Cbnstantfus introduced the office oi prafecius urbi from Rome. The suppression of the formulary system was followed up m A.D. 339 by Constantine II., who abolished the necessity of symbolic formulae m testamentary documents, and in 342 by Constanti^ls, who took away the special significance of all technical and sacred fonns of law what- soever {juris form-ulm), so that the plain intention of the parties should not be defeated through any neglect of formal expression. Theodosius II. (A.D. 408-450). — Before his death in 395,.Theodosius I, divided the' empire into two separate sovereignties of the East and the West, and gave them tO'his sons Arcadius and Honorius. The reign of Theo- dosius n., son of Arcadius, is memorable for the compilation of the Theo- dosian Code (429-438), as well as forthe Law of Citations (426), a new rule on the authority of the juristic writings, and for the establishment of a school of philosophy and law at Constantinople. Probably these legal labours were due less to th« emperor than to- bis prsetorian prefect and chief law adviser, Antiochus. To- somewhere about the beginning of the fifth century also, probably belong three important, though fragmentary, works — the Vatican Fragments, a Comparison of the Mosaic and the Roman Laws, and the Consultcctio' veteris cicjiisdam jureconsulti (pp. 87-88). Fall ef the Western Empire. — The northern tribes pressing downwards at length overwhelmed the Empire of the West. In 410 the- Goths under Alaric, after several years of fierce fighting, battered down, the walls of Rome. Gaul was conquered and divided into three kingdoms : the Franks (north),, 410 ; the Burgundians (east), 414 ;. the Visigoths (south), 419. In 453,- Attila, king of the Huns, retired from before Rome, on temporary condi- tions ; and in 455, Genseric, king of the Vandals, came from the-conquest of Roman Spain and Africa, and sacked Rome for forty days. For twenty years more, the emperors were set up and plucked down by the invading^ chiefs, and then the Empire of the West came to an ignominious end (476). Odoacer proclaimed himself king of Italy,, and divided the territory among his soldiers ; but he in turn was overthrown by Theodoric, king of the Ostro- goths (493), who ruled Italy from Ravenna with enlightened and beneficent sway for another generation (till 526). The Ostrogothic kingdom was. finally destroyed by Narses, the general of Justinian, in A.D. 553. In the- beginning of the sixth century certain of thebarbarian kings published codes- of law for their" Roman subjects — lex Romatia Visigothorum, lex Romctna Burgundionum, Edictum Theodorici (pp. 88-89). Justinian {h.'O. 527-565). — Religious persecutions and the contentions of orthodoxy and heterodoxy, the military achievements of the great Belisarius, and of Narses, and, above all, the consolidation of the law, signalised the- reign of Justinian. Following the counsel o-f Tribonian, no. doubt, Justinian ordered the compilation of the Code, the Digest, and the Institutes, and published his subsequent Novels. The alterations of the old law writings are excused by the practical object in view. The modifications in the law tend in a liberal direction. The last strict shackles of the artificial civil law were 70 A SHORT HISTORY OF ROMAN LAW. freely loosened or completely knocked off, and the law was informed with a more simple, business-like, and equitable pirit. II. MAGISTRATES OF THE EMPIRE. 1. Republican Magistrates under the E7npire. The Consuls. — For some three centuries the ordinary magistracies of the republic continued to exist under the empire, and many of them are still heard of at a much later period. But they were the mere shadows of their former selves. The consulship was assumed or bestowed by the emperors just as they thought fit. Instead of a pair of consuls for every twelve months, there was ordinarily a new pair every two months, so as to afford the emperor sufficient opportunities of gratifying persons -he wished to favour. Owing to the overshadowing power of the emperor, and their short period ■of office, they were of no political account whatever. Still they presided in the senate and the comitia. Occasionally they acted as judges in civil suits; ■and from Claudius to M. Aurelius they exercised special jurisdiction in cases relating to minors. The consulship, though wholly stripped of power, was ■considered for six 'Centuries as the most exalted and most honourable of dignities ; for the prudent emperors had invested it with extraordinary pomp ■and splendour. The Plebeian Tribunes. — The Tribuneship of the Plebeians existed into the fifth century, but it retained no more power than the consulship, and, in the eyes of the public, no honour whatever. The tribunes were generally chosen by the senate by lot from the list of ex-quaestors under forty years of age. During the first' century they still summoned ihe senate and presided at its meetings. They exerted their right of intercession, but withcareful regard to the emperor's pleasure. -From Augustus to Alexander Severus, they divided, with the praetors and 'the aediles, the general superin- tendence of the fourteen regions-of the city, the really important duties being in the hands of heads of special 'departments. A-nd down to the time of Nero they exercised extensive jurisdiction in civil -suits. The office was also established byGonstantine at Constantinople. The PrcEtors. — The Praetors varied from .twelve to eighteen, and their functions were greatly transformed. They were turned into aediles, their criminal and civil jurisdiction being transferred to the senate and the City Prefect. Later on, certain special matters were re-committed to them. Claudius appointed (a;D. 41) two prsetors, one of whom Titus abolished (A.D.79), to decide questions relating to trust-estates {prator de fideicom- missis). Nerva. appointed a praetor for causes between private persons and \ihsjiseus. Antoninus appointed a.prator or judex iuielai-isior the affairs of minors. The alien prstor disappeared on Caracalla's extension of the full citizenship to the limits 'of the empire ; the city prator existed, in name at least, as long as the Empire of the West ; and both he and the prator tutelaris entered on a new sphere of existence at Constantinople. The ^diles.—The ^diles, Plebeian, Curule, and Cereal, remained till the time of Alexander Severus, but their functions were reduced to insi<^ni- ficance. FROM AUGUSTUS TO JUSTINIAN. 71 The Censor—Prafectus Morum. — The office of Censor died out in the first years of the empire (B.C. 22), although several of the emperors assumed the title. The functions were partly undertaken by the emperor, who regulated public morals {pm/ectzis morum) and selected the senators, and were partly distributed among other officers. The provincial officials will be more conveniently mentioned below (pp. 72-73). 2. New Magistrates under the Empire. In the crippled state of the old magistracies, some new magistrates were necessary for the conduct of the business of the empire. These were ab- solutely the creatures of the emperor — nominated directly by him, holding office during his pleasure, and uniformly acting, with servile watchfulness, in accordance with his wishes. Before naming them, however, we will state the relation of the emperor himself to the administration of justice. The Einperor. — The emperor vjfas the fountain of justice as well as of law. He was the supreme judge. He exercised his powers principally in two ways : either he sat as judge on appeals, or he gave opinions at the instance of a subordinate judge or of a party to a cause {epistula^ rescripta). Justinian abolished the old practice of reference from a judge, and required the judge in every instance to give a final decision, allowing an aggrieved party to upset the judgment only by a regular appeal. The Council of the Emperor {Sacrum A uditorium vel Consistcritim) grew out of the half-year councils {concilia semestria) established by Augustus, in which (among other things) projects to be laid before the senate were dis- cussed, and judicial investigations prosecuted. It was variously, constituted, according to the caprice of the emperor. Tiberius chose, in addition to his friends and associates, twenty leading citizens ; Hadrian added the praetors, and certain distinguished senators and knights ; Ale.Kander Severus sum- moned the men most competent to handle the matter under discussion. In the time of Hadrian, the Auditorium was the separate part of the council that assisted when legal questions were under consideration. Under Diocle- tian the Consistorium received a fixed organisation. It was composed of the higher officials attached to the imperial palace ; and in addition to assisting the emperor in administration and legislation, it also acted as a final court of appeal. It descended as an institution to the Lower Empire. The City Prefect {Prczfecius Urhi). — The city prefecture of the empire, a transformed republican office, was permanently established by Augustus in B.C. 25. The chief duty was to maintain public tranquillity and good order, in support of which the City Prefect held the command of the city militia or national guards (cohortes urbance). Other functions were rapidly added ; and gradually the City Prefect became the supreme criminal and civil judge, absorbing the chief duties of the republican prastors and asdiles. His aW/ jurisdiction extended 100 miles beyond the walls of Rome. In certain cases he assumed a special original jurisdiction ; as in complaints by slaves of the cruelty of their masters, in disputes as to their respective duties between freedmen and patrons^ in suits by and against bankers, and in certain interdicts. 72 A SHORT HISTORY OF ROMAN LAW. His criminal jurisdiction seems to have extended throughout Italy. When a crime was disclosed in civil proceedings before other magistrates, the City Prefect received the culprit for trial and punishment. He could sentence to simple banishment from the city, or to deportation or relegation, or to the mines. In the exercise of his appellate jurisdiction, he sat, with a board of assessors {consilium)^ to hear appeals from the inferior courts in all parts of the empire. There was, at last, no appeal from his sentence, except to the emperor. By the direction of the emperor, however, cases would at times be trans- ferred from his court and submitted to the special consideration of the senate. These would include all the more serious criminal charges affecting the government, the emperor, senators or their families, or governors of provinces. The PrcEtorian Prefect {Prcefectus PrcEtorio). — The prcefectus prcp.torio, the general of the imperial life guards, soon became the second, and even at times the first, power in the state, owing to the armed force he commanded. Under Augustus there were two, under Tiberius one, and, at later periods, occasionally three or four prefects. Their power, at first purely military, naturally extended ; under Hadrian they had begun to exercise civil authority, and under Commodus their hand was in every department of government ; particulai'ly they drew to themselves a large civil and criminal iurisdiction, and in fact filled the highest judicial office. The great jurists, Papinian, Paul, and Ulpian, were praetorian prefects. Their military juris- diction was abolished by Constantine the Great. At first, appeals lay from the prstorian prefects, but at last they were made a court of final appeal within their jurisdiction. Appeals lay to them from the presidents of provinces. They exercised a superintendence and control over inferior judges, could remove them for inefficiency or ill-health, and, subject to the approval of the emperor, punish them for abuse of their powers. The Provincial Governors. — When Augustus assumed supreme power he took under his direct and sole control twelve of the dependent provinces including the newer and less settled ones on the frontiers {Jirovincice im- peratorice or Ca:saris). These were governed by imperial lieutenants {legati CcEsaris or Augustij prcesides), at the head of a strong military force. Twelve provinces were left under the administration of the senate, including such as were long-settled and peaceful {provincice sejiatories or populi). These were governed, as under the republic, by past-consuls or past-prsetors, who were now all styled proconsules (sometimes also prasides). At first there existed certain trifling distinctions between the two classes. Generally the proconsuls enjoyed higher consideration and dignity, their insignia being six fasces as against the 'on^ fasces of the lieutenants. They could also fine up to six ounces of gold, the lieutenants only up to two. But by the time of Justinian these distinctions had gradually become obliterated. The jurisdiction of the President was most extensive, including all the causes, civil and criminal, that were heard at Rome by different judges. Nor was he tied down by Roman precedents, but could decide according to his own ideas of right. Exchequer cases, however, although included in his FROM AUGUSTUS TO JUSTINIAN. 73 wide commission, he usually left to the Finance Minister {procurator CcEsaris). The criminal powers of the President extended to the punishment of the mines, but not to deportation to an island, without the special authorisation of the emperor. He was not bound to hear every cause himself, but might follow the practice adopted by the greater magistrates in Rome. The jurisdiction of the President in civil causes extended only to persons domiciled in his province ; but he possessed full authority to deal with all criminals within his bounds. He could not act outside his province, except in regard to the voluntary jurisdiction, which he could exercise as soon as he left Rome. It was his duty to wait in his province, even after the expiration of his term, until his successor actually arrived ; and he could not divest himself of his authority by resignation. The commission of the Presidents charged them not to be unduly familiar with their subjects. Other restrictions were imposed on them for the pro- tection of the inhabitants : they might not marry a woman belonging to their province, nor buy land, except when their ancestral property was sold by the Exchequer. The rearrangement of the provinces under Constantine is referred to below (page 74). Provincial Finance Ministers. — The Provincial Governor was attended by a Finance Minister, the Proconsul by a Quczstor, the Imperial Lieutenant by a Procurator Ccesaris. At first, his functions were purely administrative, but in course of time he naturally drew to himself a jurisdiction over causes in which the Exchequer was a party. Ultimately the Procurator had acknowledged jurisdiction overall Exchequer causes, with power to decide all subsidiary questions, — even some questions of status, as whether a person were a slave or a freedman ; but if the question were whether a person were freeborn, it must be referred to the Court of the President. The Procurator had no power either to banish or to fine. Assessors to Magistrates. — The provincial as well as the home magis- trates, being quite as much executive as judicial officers, were often chosen more for their business capacity than for their knowledge of law. It there- fore became customary to give them the assistance of paid jurisconsults (adsessores'). Before the office acquired its importance and permanent character, adsessores were required to give up practice only in the court where they assisted ; but Justinian required them to elect between their profession of advocacy and their employment as adsessores. He enacted also that no one should sit as assessor to more than one magistrate. The assessor could not hear causes in the absence of the magistrate, for it was necessary that the official documents should bear the magistrate's signature. Judices Pedanei. — In the famous constitution of Diocletian enacting (a.D. 294) that the extraordinary procedure should henceforth be the ordinary procedure, it is incidentally mentioned that the presidents of provinces had been in the habit of assigning tojudices pedanei causes that they were unable to hear personally. The precise duties of ih&sejudices pedanei axe uncertain. After the abolition of the ordinary procedure, however, they acted as petty judges, in causes of small amount. Diocletian restricted their employment to those occasions when the president was prevented from giving a personal hearing, either through the pressure of his public duties or the excessive 74 A SHORT HISTORY OF ROMAN LAW. number of causes. Julian also permitted the president to appoint them for causes of minor importance, and Zeno assigned a certain number to each prefecture. Justinian altered this, for the Constantinople prefecture at least, and nominated certain advocates of high professional standing, requiring them to sit continuously, and giving them jurisdiction in all civil causes up to 2P0 solidi. Their jurisdiction, however, was not compulsory ; the parlies might submit their cause to an arbitrator by preference, provided they rejected a. judex pedaneits before the beginning of the trial. Magistracies introduced by Constantine. — The establishment of a new capital and the influence of Christianity under Constantine led to consider- able modifications in the administration. The Bishops (episcopi) were the highest dignitaries. They naturally undertook duties of humanity and charity in protection and aid of the poor, of captives, and of children ; they sat on the councils for the nomination of tutors and curators, and they enfran- chised slaves in the churches. They could act temporarily for absent magistrates, and the emperor himself frequently obtained their advice. The peaceable nature of Christianity fostered the ancient resort to arbitration ; and Constantine established an episcopal jurisdiction {episcopalis audicntia) over certain classes and matters of religion and the church, which was largely taken advantage of also in other matters by the voluntary confidence of litigants. Constantine divided the empire into four pr^torian prefectures — the East, Illyria, Italy, and Gaul. These he subdivided into 13 (5, 2, 3, 3) dioceses, under Vicars {vicarii) ; and these again into 117 (48, II, 29,29) provinces, under proconsuls or rectors. The Defensores Civitatum. — The Defensores Civitatuin were municipal magistrates, of whom we hear first in constitutions of Valens, Valentinian, and Theodosius (about a.d. 379). They were elected by the leading citizens of their respective towns, for five years, and they were not at liberty to resign their post. With certain police duties and the special care of the poor, they also exercised jurisdiction in cases involving not more than 50 solidi. By the time of Justinian, the office had devolved on humble subordinates of the magistrates. in. CRIMINAL LAW UNDER THE EMPIRE. The criminal jurisdiction of the City Prefect, the Praetorian Prefect, and the Provincial Governors has been alluded to in the preceding section. In the time of Justinian crimes were divided into three classes, according to the manner of prosecution— Pz^^/zVa Judicia, Exlraordinaria Crimina, and Privata Delicta. (Stephen, Hist, of the Crim. Law in England I 12 follg.) Publica Judicia.—Thtie were the representatives of the old Quastiones Perpetuce, and took cognisance of crimes forbidden by the following laws, under defined penalties, capital (death or exile) or not :— Lex Julia Majestatis Lex Julia de Adulteriis Coercendis, Lex Julia de Vi Publica, Lex Julia de Vi Privata, Lex Cornelia de Sicariis et Veneficiis, Lex Pompeia de Parricidiis Lex Cornelia de Falsis, Lex Julia Repetundarum, Lex Julia de Annona| FROM AUGUSTUS TO JUSTINIAN. 75 Lex Julia Peculatus et de Sacrilegiis et de Residuis, Lex Julia Ambitus, Lex Fabia de Plagiariis. (Z*. 48, 4-15.) Extraordinaria Crimina {D. 47).— "These were offences for which no special QucssHo, no specific punishment, were provided. The punishment was (within limits) at the discretion of the judge, and the injured party might prosecute, though he was considered in doing so to protect rather the public interest than his own." Privata Delicta. — " These were offences for which a special action was set apart involving a definite result for the injured party ; such, e.g., as the actio furti or actio injuriarum." " The classification is a little like a classification of English crimes, as being either (i) Treason or Felony ; (2) Misdemeanours at common law ; or (3) Torts ; and there is something of a resemblance between the way in which, in the course of ages, the Publica Judicia and the Extraordinaria Crimina came to be formed into a single class of offences, as to all of which the punishment was more or less discretionary, and the gradual legislative removal in our own country of nearly every substantial distinction between felony and misdemeanour." (Stephen, loc. cit.) IV. SOURCES OF LAW UNDER THE EMPIRE. Gaius enumerates six sources of Roman law : statutes, plebiscites, decrees of the senate, edicts of the magistrates, constitutions of the emperors, and opinions of the jurists. The suggestions of custom would from time to time receive incorporation in one or other of those forms. Lex, Plebiscitum, Senatusconsultum. — The comitia continued to pass leges, or ra^thtr piebiscita, with some Uttle show of real power, under the first two emperors ; the last recorded lex belongs ta the reign of Nerva (a.d. 96-98). In imitation of the ancient forms, the emperor would lay the bill before the senate, in a-n oratio or an epistula, after which it would receive the auctoritas of the senate, and be proposed to the tribes. The reference to the tribes, however, rapidly fell into disuse as being inconvenient, and the ceremony became shortened to a mere proposition of the bill to the senate. The senate itself even came to be spoken of 2.% comitia, and the senatuscon- sulta as leges ; and the very naming of the decrees of the senate was modelled on the principle of the republican laws and plebiscites. Gradually the senate put forth more and more enactments on points of civil law, with unquestioned validity, and before the time of Antoninus Pius such decrees were frankly recognised as possessing full legal force. This continued till the reign of Septimius Severus (A.D. 206), after which, although the right of the senate theoretically remained, the exercise of it as doubtful. As senatiis- considta had superseded leges at the end of the first century, so, just after the close of the second century, they were in turja superseded by the imperial constitutions, which .at last became the sole source of law. Edicta Magistratuum.} — The publication of the edictum perpetuum, compiled by Salvims Jaalianos under Hadrian, did not put an end to the issuing of edicts ; at any rate, the words of Gaius would lead us to suppose ' Yox examples of edicta, see Bruna, Pontes, 165 foUg. 76 A SHORT HISTORY OF ROMAN LAW. that in his time they continued to be regularly issued. The magistrates, however, would be bound to adopt its provisions, adding only such new forms and rules as might be necessary in new circumstances. The Constitutions of the Emperor}— Thu emperor's legal right to make law {jus constituere) was derived from the special statute {lex regia, lex imperii, or de imperio) investing him with all the powers of the people. This statute was a survival of the olden lex curiata regulating the investiture of the kings ; at the beginning of each reign it was prepared by the senate and passed by the representatives of the thirty wards {curicE). The consti- tutiones embrace all the emperor's acts of law-making in whatever form legislative, judicial, or interpretative. They were (i) Edicts {edicta), general ordinances issued by him in his capacity of magistrate ; (2) Decrees {decreta), judicial decisions pronounced either on final appeal or in the exercise of his summary jurisdiction ; and (3) Epistulce, or rescripta, written replies to the inquiries of judges or of private persons on particular points. To these may be added (4) viandata, orders to the imperial officers in the provinces. The earliest constitution directly mentioned by Justinian belongs tO' the time of Hadrian ; but Augustus and his- immediate successors issued constitutions in all kinds, veiling them, however, under names familiarly associated with the sovereignty of the people. The Opifiions of the Jurisconsults {Responsa Prudentum). — In order to increase the authority of the answers of the jurisconsults, and hardly without the idea of securing a certain professional allegiance tO' himself, Augustus enacted that there should be conferred on (some of) them the right of giving responses under imperial authorisation {jus publics respondendi). It would seem, however, that this enactment lay in abeyance till the next reign ; for Pomponius mentions that the first to- receive the imperial authority was Massurius Sabinus, the pupil of Capito. The jurists thus favoured above the rest were called juris auctores ; their auctoritas, derived from the emperor, being embodied in their opinions delivered on single points or cases, and naturally perpetuated in collections of these, more or less supple- mented and digested, into- legal treatises. An extraordinary impetus was thus given to- the production of legal literature, and to the activity that followed during the first two centuries of the Christian era we owe the rich store of juridical reasoning that constitutes the permanent value of the mature Roman Law. The assistance given to the magistrates by the jurisconsults was equally needed and required by the emperors themselves. In the- preparation of constitutions or of legislative measures, and even- in other matters of diffi- culty, the emperors resorted to the advice of the best jurists of the day. These were important members in the concilia semcstris, of Augustus and the later Council of the emperor. Alexander Severus never sanctioned a constitution without consulting a score- of jurists-, in addition- to other advisers. It is not easy to suppose, even with Savigny and Puchta, that the answers of the privileged jurisconsults originally possessed the force of la-w. For the answers always might, and often did, conflict ; and, in fact, the accumulation ' For examples of these, see Bruns, Pontes, 189 foUg. FROM AUGUSTUS TO JUSTINIAN. 'j^ of such inconsistent authoritative opinions on a number of points of law pre- sently divided the jurisconsults into two rival schools, to the great perplexity of the judges. The first great rivals were C. Ateius Capito and M. Antistius Labeo, who flourished under Augustus. Capito was a born aristocrat, and an assiduous courtier, who attained the consulship (a.d. 5 : died a.d. 22). Labeo was a son of the people, a staunch repubUcan, scornful of political and courtly promotion, and distinguished for profound learning and intellectual acuteness. Capito is said to have been conservative of the traditions of the law ; Labeo is said to have boldly applied his scientific training and inde- pendent tendencies to strike out more liberal views and originate nicer dis- criminations. The followers of Capito and Labeo confirmed the general divergencies of juridical opinion. These seem, however, to have been on matters of detail, not of principle ; ' and probably personal and political, no less than juridical, antagonism influenced the formation of the two parties. The rival schools, now fully recognised, were styled Sabinians or Cassians, and Proculians or Pegasians, after disciples of the founders. Leading successors of Capito were — Massurius Sabinus, G. Cassius Longinus (consul A.D. 30), Cselius Sabinus, Priscus Javolenus, and Salvius Julianus (of the edictum perpetituni) ; also Sextus Pomponius, who flourished under Antoninus Pius, and whose short and incomplete sketch of the History of Roman Law included in the Digest, furnishes our best information on this subject ; Sex. Caacilius Africanus, famous for his obscure style ; and Gaius. Leading suc- cessors of Labeo were — Nerva (father), Proculus, Nerva (son), Pegasus, Juventius Celsus (father), Celsus (son), and Neratius Priscus. The opposi- tion continued for about two centuries, and may be regarded as having taken end in the unique predominance of Papinian. From M. Aurelius to Caracalla five jurists stand out in pre-eminent greatness — Gaius, Papinian, Ulpian, Paul, and Modestinus. Gaius (the rest of his name is lost) lived in the middle quarters of the second century, under Hadrian, Antoninus Pius, and M. Aurelius. He tells us that he was a Sabinian, and affords our chief information regarding the characteristic differences of the two schools. Whatever reputation he may have enjoyed during life, we shall presently see (pages 79, 84) in what esti- mation he was afterwards held. He is known to us mainly by his Institu- tiones (see page 84). Besides this work he wrote numerous treatises — on the Twelve Tables, on the Three Edicts (Urban, .(Edilician, and Provin- cial) ; on the lex Papia Poppcsaj on the writings of Q. Mucius Scasvola ; and on the sejiaticsconsulta Orphitianuin and Tertullimium, as well as Regula, and seven books oi Res Coiidiance, which were also called Aurea, so highly were they valued for their practical character. Some 535 extracts from his writings are contained in the Digest. jEmilius Papinianus, the most celebrated of all the Roman jurists, flourished under M. Aurelius and Septimius Severus. He was the teacher and friend of Severus, whom he probably accompanied to Britain (York), ' The particular points are enumerated in the Index, under Sabinians. See Gaius L 196; ir. 15, 37, 79, 123, 195, 200, 217-223, 201, 244 ; III. 87, 98, 103, 133, 140, 141, 167, 178 ; IV. 78, 79, 114, 163. On the whole subject, see Dirksen, 2Jie SchuUn d. RSm. Juristen (in his Beitr'dge z. Kundc d. Rom. SeclUs). 78 A SHORT HISTORY OF ROMAN LAW. and who made him prastorian prefect or supreme judge. He was put to death by Caracalla, because (it is alleged) he declined to vindicate to the senate the murder of Geta. Papinian wrote thirty-seven books of Qttizs- iiones, nineteen of Responsa, two of Djfinitiones, and works De Adulteriis, besides others. Some 596 extracts from his writings are contained in the Digest. Domitius Ulpianus derived his origin from Tyre. Like Paul, he was a pupil of Papinian, and his colleague in the emperor's council. Banished by Elagabalus, he was recalled by Alexander Severus, who made him his chief adviser, and raised him to the post of praetorian prefect. Perhaps this was an unpopular act, for Ulpian was presently murdered by the soldiers, under the eyes of the emperor (a.d. 228). Besides annotating Papinian (see page 79), Ulpian composed numerous works, including two especially important treatises, Ad Edictum and Libri ad Sabinum. An epitome of his Liber Singttlaris Regularum (also improperly called Fragmentd) is extant in a MS. in the Vatican Library. His writings furnish about one- third of the Digest (the largest contribution of any single jurist), consisting of 2462 extracts, many of which are of considerable length. Julius Paulus, a native of Padua, was also a pupil and colleague of Papinian, exiled by Elagabalus, recalled by Alexander Severus, and appointed prKtorian prefect (A.D. 222). He survived Ulpian. Paul was an extremely prolific writer, more than seventy of his works being named in the Digest. The most celebrated was Ad Edictum, in eighty books. He too annotated Papinian (see page 79). An epitome of his Sententim Receptee, in five books, is preserved in the Breviarium Alariciamtm j and his writings furnish about one-sixth of the Digest, consisting of 2083 extracts. Herennius Modestinus was a pupil of Papinian and of Ulpian. He was a member of the council of Alexander Severus, and flourished till about the middle of the third century. He wrote, among other works, certain books oi Excusationes. He is now represented solely by 345 excerpts in the Digest. Modestinus may be regarded as the last of the jurists. For half a cen- tury, from Alexander Severus to Constantine, the supremacy of military violence, setting up and plucking down a rapid succession of emperors, fatally checked the active development of jurisprudence. The labours of the jurisconsults of the first two centuries have been classed by Ortolan in four divisions of subjects : (i) commentaries on the edicts of the prsetors or of the proconsuls (ad Edictum, ad Edictum provinciate) ; (2) treatises on the functions of the magistrates {de officio prcefecti urbi, proconsulis, etc.) ; (3) extensive works on the whole body of the law {Digesta, Pandectce) ; (4) abridgments or elementary lessons (Institutiones, Regulce, Sentejitici). It was Hadrian that first invested the opinions of the authorised jurists, when unanimous, with the force of law. When, however, they were not unani- mous, the judge still bore the responsibility of deciding between them. Con- stantine (A.D. 321) maintained the unsatisfactory rule of Hadrian ; but, with the professed desire of cutting short the endless contests between the jurists, and in jealousy for the clear reputation of Papinian, he invalidated the notes of Ulpian and Paul (and, in another constitution, the notes of Marcian) on the works of Papinian. The discredit thus cast on the notes seems to have extended in the popular mind to all the works of Ulpian and Paul, and to FROM AUGUSTUS TO JUSTINIAN. 79 have been particularly felt in regard to Paul's works, which were more widely influential in the West ; and accordingly Constantino (a.d. 327) removed the supposed stigma, by recognising as authoritative the indepen- dent works of Paul, and especially his Sententice. In this situation the legal authority of the jurists remained for just a century to come. Then, in B.C. 426, in the time of Valentinian III., was published a constitution drawn up under Theodosius II., which gave a final mechanical relief to the perplexity of the judges. This was the Law of Citations. It confirmed with legal authority all the writings of the five great jurists — Gaius, Papinian, Ulpian, Paul, and Modestinus — and all passages quoted by them from other jurists, provided the correctness of such quotations should be verified by comparison of manuscripts. The notes of Ulpian and Paul on Papinian were excepted ; the invalidation of these pronounced by Constantine being expressly re-enacted. A majority of these authorities on any point was to determine the law ; in case of equality of numbers, the opinion favoured by Papinian was to prevail ; and if Papinian were silent, then the judge was reduced to the old necessity of making his own decision between the conflicting authorities. Another century later, Justinian broke down the preponderant authority of the celebrated jurists, whether as individual names or as a majority. In his instructions to the compilers of the Digest (A.D. 533) he directs them to select, purely on grounds of intrinsic merit, what they consider best, from the writings of all the authorised jurists (including the notes of Ulpian, Paul, and Marcian on Papinian, hitherto proscribed). To each sentence placed in the Digest he gave the force of law ; and he prohibited all further publica- tion of commentaries or treatises on the subject, with a decisive finality sanctioned with the punishment of the author as guilty of forgery, and the destruction of his works. But the recommendations of Justinian were not in all points strictly adhered to. Schools of Law. — The method of tuition by combined lecturing and practical demonstration was now supplemented with the study of legal works. Labeo, we are told, read with advanced students already in prac- tice {stiidiosi) for six months of the year in town, thereafter retiring to the country for other six months' study and original work. Sabinus, in like manner, was attended by another class called auditores. Ulpian still speaks of Modestinus as studiosus mens. By this time, however, private teachers had zxxs^Vi— juris civilis professores Ulpian calls them — who imparted pre- paratory instruction in law. At a later period public schools were estab- lished. One probably existed at Rome in the end of the fourth century. In k.Ti. 42s Theodosius 11. established one for the study of rhetoric, philosophy, and jurisprudence at Constantinople ; prohibiting the professors from giving private instruction, and all other teachers from giving public instruction. In the time of Justinian we hear of another recognised public school of law at Berytus. On the promulgation of the Digest (a.d. 533) Justinian addressed a constitution to the eight professors of law,' remarking on the ineffective ' Probably two for the Constantinople school and two for the Berytus school ; and four as the temporary substitutes of these during their occupation on Justinian's com- 8o A SHORT HISTORY OF ROMAN LAW. practice of tlie schools in the past, and prescribing a reformed course to be followed in the future. Hitherto the law course had occupied four years, and the professors had confined themselves to six works, which were largely unsuitable, and to some extent not readily accessible to all the students. The first year students {Dupondii, students of the double as) devoted themselves to the Institutes of Gaius, and parts of four special books — on res uxoria, tutelage, wills, and legacies. The order of the Perpetual Edict v/as not followed. The second year students {Edictales) read selections from the first part of the law as arranged in the Edict— a preposterous order of study, Justinian declares — • with portions of the law either De Judiciis or De Rebus. Much of the De Judidis was obsolete, and latterly De Rebus had been dropped as inaccessible or unfit. The third year men {Papinianisice) completed the study ai De Ju- didis and De Rebus, and entered upon parts of eight of the nineteen books of Papinian's Responsa. The fourth year students (y.vTai, Lyta, Licentiates) revised the subjects of the whole course, with miscellaneous study of the Responsa of Paul. This miserably deficient system Justinian superseded by the following course. The first year (now called Justinianani novi) read Justinian's Institutes and the first four books of the Digest. The second year {Edictales) study the matter of the Edict in so far as represented either in the seven \iooV.%De Judidis iji\g&%t, 5 to 11) or in the eight books De Rebus {Y)., 12-19), read continuously ; also four other books out of fourteen on special subjects, namely, one of the three on dower (D., 23-25), one of the two on tutelage and curatorship (D., 26, 27), one of the two on wills (D., 28, 29), and one ol the seven on legacies and trusts (D., 30-36). The third year {PapinianistcE) complete the De Judidis and De Rebus (reading the subject not chosen the year before) ; with three courses of special subjects — namely, pledges and mortgages (D., 20), interest (D., 22), and the edict of the asdiles, the adio redhibitoria, evictions, and siipulatio7ies duplce (D. 21). They also read and recite portions of Papinian. The fourth year [Lytce) read frequently the ten books on special subjects reserved from the second year. This takes them over the first five parts of the Digest (36 books), and fits them to study after- wards in private the sixth and seventh parts. The fifth year {Prolytce) study the Constitutions in the Code. Justinian further denounces and prohibits under penalties the instruction said to be given by ignorant men in Alexandria, CKsarea, and other cities. This indicates at least the wide prevalence of an active desire to study the law. At the same time, the school at Rome was flourishing under the fostering care of Theodoric and his minister Cassiodorus. And, on the reconquest of Italy (a.d. 554), Justinian confirmed the professors in all their privileges, and introduced at Rome his improved method of legal instruction. pilations. The school at Eome, being in the hands of the Ostrogoths, was not under the control of the emperor at this time. Seven are addressed as of the very high rank of lUustres, one as vir disa-tissimus. FROM AUGUSTUS TO JUSTINIAN. 8 1 APPENDIX TO THE FOREGOING SECTION. LEGES AKD SENATDSCONSULTA OF THE BMPIKE. The following is a conspectus of the principal leges (plebiscita) and senatusconsulta that have come down to us with particular titles or definite authorship from the empire. Observe the ending — ianum in the title of the senatusconsults : — UNDER AUGn8TDS> B.C. About 32 Lex Julia et Titia, extension of lex Atilia (before B.o. 186), authorising pro- or 31 . vincial magistrates to appoint tutors. ? 25. Lex Julia^ judiciaria^ supposed to be- one of the leges Julice (Gaius, 4, 30) following up the lex jEbutia and further restricting legis actlones. Cf. lex Julia judidaria, B.C. 46. ? Lex Julia, de honorum cessione, ^Gaius, 3, 78.), ? Lex Julia, sumptuary. 18. Lex Julia, dk aduUeriis. (Bruns, 105.) 18. Lex Julia, de ambitu. 17. Senatusconsulfum, de ludis scecularibus, (Bruns, 15^.) 11. Se. de aguceductibus. (Bruns, 153.) til. Sc. Maximo~et Tuberone coss. factum; ordaining that the wife of the Flamen Dialis should be in manu only in so far as concerned the sacra. HuBchke calls this sc-. the lex Asinia Antistia, and dates it a.d. 23. See Muirhead, p. 54, Gaius, 1, 136, note. 10. Sc. SilanianuTn. (Paul, Sent, 3, 5.) 8. Sc. de mense Augusto, changing the name from SextUis to Augustus. (Bruns, 154.) ? Sc. de OoUegiia. (Bruns, 154.) A.D. ? 4. Lex JuZia; de marifaTidis ordinihus. B.C. 18 is also given as the date. 4. Lex .iSlia Sentia, on manumission. 6. Lex Julia, de vicesima Jiereditatum, imposing duty of 5- per cent, on testa- mentary successions and bequests. ? 8. Lex Fujia Caninia, restricting testamentary manumission; 9. Lex Julia et Papia Popp(Ba, revised edition of Lex Julia de maritandis ordinibus. Other names : Lex Julia, Lex Julia cadii^caria. Lex Papia, Lex Papia Poppoea. (Bruns, 107.), OJIDEE TIBEEln&K IC. Sc. lAbonianum, rendering null all that a man, when writing out another'* testament, inserted in his own favour. ? 19. Lex Junia [Norbanei], on slaves informally manumitted,. ! 24. Lex Visellia, giving citizenship to Latins after serving six years in the night watch. Mommsen places it earlier. ? 27. Lex Junia Vdlaea (so Studemund ; formerly Velleia), on testamentary institution and disherison. Usual date, 4&. Muirhead, p. 436 (addi- tions and corrections to p. 120, sect. 134, note 1), inclines to an earlier date. Bruns, 27. (See i'ontes, p. 108.) Tigerstrgm and Sandars, 10. ! 34. Sc. Persicianum (or Pernicianum), rendering men and women that had not married before 60 and 50 respectively, permanently liable to the penalties of celibacy. Ulp. 16, 3 (cf. Miurhead's note). F 82 A SHORT HISTORY OF ROMAN LAW. UNDER CALIGULA. A.D. 37-41. Lex Mamilia Roscia Peducea Alliena Fabia, colonial. Brums (109) follows fiudorff in giving this date. Mommsen assigns the Ux to the time of -Jid, OsBsar- TJNDEH CLAUDIUS. 41-46. Sc. de CBdificiis non diruendis. (Bruns, 158.) 41-47. 5c. Osteriarmm. (Bruns, 155.) 42. Sc. Largianum, -euccession to property of Latini. 46. Sc. de ludis saecvilarihus. (Bruns, 152.) 46. Sc. Vdleianum. (Bruns, 155.) 47. Lex Claudia (prohably a Sc), aholishing agnatic tutelage of women. (Gaiua, 1, 157.) 48. Sc. Clavdianum (oratio Claudii) dejure JionorumGallis dando. (Bruns, 156.) 52. Sc. Clavdianum, on cohabitation of free women and slaves, etc. 1 Sc. Macedenianum, against lending money to children under power of their father. Tacitus {Ann. 11, 13) places it under Claudius ; Suetonius {Vesp. 11), under Vespasian. Sandars (Just., Inet., p. 456, note to 4, 7, 7) suggests that " perhaps it was only renewed in the latter reign." Lipsius (ad Tac. Ann. 11, 13) regards the law under Vespasian as the law of Claudius renewed in more severe terms [aspenus). (Bruns, 160, dates it 69-79.) 1 Sc. Claudianum, ordaining, in modification of Sc. Persicianum, that a man over 60 mari-ying a woman under .50 should be regarded as having married before 60, UNDER NERa 56. Sc. de wdificiis non diruendis. (Bruns, 159.) 56. Sc. TrebeUianum, on Jideicommissa. 58. Sc. Neronianum, validation of legacies invalid through particular form of bequest. Huschke dates 58 ; Poste, 64. 61. Sc. Calvitianum (or Calvisianum), ordaining that marriage of woman over 50 with man over 60 should not qualify for taking inheritance, legacy, or dowry. (Ulp- 16, 4.) f... J Lex Petronia, or ■ \ Sc. Turpillianum, punishing tergiversatia. UNDER VESPASIAN. 70. Lex de Jmperio Vespasiani. {Bruns, 128.) 70-79. Sc. Pegasianutn, on Jideicommissa. ? Sc. Pegaso et Pusione coss. factum, extending the benefits of the Aelia- Sentian marriage and causae prohatio to Latini manumitted when over 30. UNDER DOMITIAN. 81-84 -f ^^^ Malaoitana 1 Domitian's charters to the municipia of Malaga and ' I Lex Salpensana / Salpeiisa (in Southern Spain). (Bruns, 130 foUg.) UNDER NERVA. 96-98. Lex Nervce Agraria, the latest known lex. FROM AUGUSTUS TO JUSTINIAN. 83 UNDER TRAJAN. A.D. 103. Sc. Ruhrianum, giving remedy in regard to bequest of liberty on trust. (Bruns, 161.) ? Sc. Dasumianum (similar object). Of the time of Trajan, or not later than Antoninus Pius. UNDER HADRIAN. ? Sc. Apronianum ? — allowing freedmen. of municipalities to leave their in- heritance to the municipalities. Ulp. 22, 5. 127. Sc. Juncianum. (Bruns, 161.) 129. Sc. Juventianum. (Bruns, 161.) ? Sc. Plancianum, (1), on fideicommissa. Referred to, Ulp. 25, 17. ? Sc. Plancianum (2), de agnoscendis Uberis. Dig. 25, 3. Paul., Sent., 2, 24'. ? Sc. TertuUianum, granting to a mother a right of succession to her children. ? Sc Vitrasianum, extending the remedy of sc. Rubrianum and Dasumianum. [Muirhead (p. 588) has collected the references in Gaius and Ulpian to senatusconsulta attributed to Hadrian [Hadriano auctore), but not other- wise specifically designated. (1) G. i. 30, 77, 80, 81, 92 ; U. iii. 3. (2) 6. i. 47. (3) G. i. 115a ; ii. 112. (4) G. ii. 57. (5) G. ii. 143. (6) G. ii. 285, 287 (of. J., 2, 20, 25) ; this maybe the same as the Sc. Plancianum in Ulp. 25, 17. (7) G. iii. 73. (8) U. xxiv. 28.] UNDER ANTONINUS PIUS. 138. Sc. de nundmis saltus Beguensis. (Bruns, 162.) 138-160. Sc. de Cyzicenis. (Bruns, 163.) UNDER M. AURELIUS. 178. Sc. OrpJdtianum, granting to children a right of succession to their mother. (Bruns, 164.) ? Sc. Sdbinianum, obliging a man that had adopted one of three brothers living under their father's potestas, to leave him one-fourth of his property. Theoph., J. 3, 1, 14. [Muirhead (p. 589) has collected the references to the senatusconsulta of unknown name and authorship in Gaius and Ulpian. (1) G. i. 67-71 ; ii. 142. (2) One or more amending the law of tutory of women, G. i. 173, 174, 176, 177, 180 ; U. xi. 20-23. (3^ G. i. 182. (4) G. 2, 276. (5) U. iii. 1. (6) U. iii. 5. (7) U. 22, 5. (8) One or more authoris- ing certain deities to be instituted as heirs, U. 22, 6. (9) U. 24, 27.] V. COMPILATIONS OF LAW UNDER THE EMPIRE. TAe Perpettcal Edict. The edidum perpetuum, compiled by Salvius Julianus under Hadrian, seems to have been a systematic arrangement of the substance of the law set forth in the edicts of the various magistrates possessing the jus edtcendi. Only some scattered fragments of it remain, in the Digest. A reconstruc- tion has been attempted by Haubold. (Cf. Bruns, Pontes, 165 follg.) 84 A SHORT HISTORY OF ROMAN LAW. Apparently, similar arrangements had been made by preceding praetors. Pomponius mentions that Aulus Ofilius was the first to publish a careful collection of the prastorian edicts. The Institutes of Gaius. It was very usual for distinguished jurists, especially of the half-century preceding Alexander Severus, to compile elementary treatises for the use of students. Ulpian's Regulm and Paul's Sente?itta have already been men- tioned, and we learn from the Digest that Papirius Justus, Callistratus (in three books), Paul (two books), Marcian (sixteen), and Florentinus (twelve), as well as Gaius, published Institutiones. Justinian's Institutiones or Elementa, belongs to a later date, and superseded them all. Of the earUer treatises, Gaius alone, the first and greatest, is extant. Till the present century, Gaius was known only through some quotations from the Institutes, and an abridgment of the Institutes inserted in the Lex Romatia Visigoihorum (a.D. 506). In 1816 Niebuhr discovered the Institu- tiones, without either title or author's name, on a palimpsest of a date anterior to Justinian, in the library of the Chapter at Verona. The complete MS. consisted of 127 leaves, three of which are still wanting. Under Gaius, on about one-half (61) of the leaves had originally been inscribed some work on theology ; and finally, the leaves had been scraped on one side and washed on the other and arranged anyhow, in order to receive, above all, a third inscription — the letters of St Jerome. ' The task of decipherment was thus anything but easy. The leaf containing iv. 134-144, had been seen by Maffei in 1732, and published by him in his Hisioria Teologica in 1740, and it had been republished by Haubold in the very year of Niebuhr's dis- covery ; but hitherto there had been no clue to the author. The Institutiones set forth in four books, and under the three divisions of Persons, Things, and Actions, the law of the age of Antoninus Pius and M. Aurelius, with numerous historical references to earlier times. This work was long the leading text-book of Roman Law, and was adopted as the chief model in framing Justinian's Institutes. The existence of both works affords a valuable means of ascertaining the changes in Roman Law within the three centuries and a half separating Gaius and Justinian. When the Lex Roinana Visigothorum was drawn up (A.D. 506), the fourth book (on Actions), and several other parts, were omitted as obsolete. The Purpose of the Institutes of Gaius. — As Puchta remarks, the Institutes of Gaius is the earliest book, so far as we know, that communicated first instruction under this title. {Just. Inst., Prooem. 6.) His further view that the plan and arrangement of the work is original, and not a mere imitation of previous systems, must be considered in the light of Rudorff's qualifying statements. (Puchta, Cursus, I, 401 ; Bk. 11. Gesch. d. Rom. Rechts, sect. 99, ' Studemund, Gaii Inst. Comm. IV. page 5 : "In his 127 foliis ter scripta sunt 60, 62-68, 71, 73-80, 113-117, 119, 120, 122-125 ; item folia recta 80 et 126 ; item folium uersum 72 ; item denique folii Slu uersus 1-13, et folii 118u uersus 14, 15, 22, 23, 24." The rest of the leaves are twice written, except the first (1) and the last (127). The Gaius (of the fifth century) is overwritten with the epistles of St Jerome (of the eighth century). FROM AUGUSTUS TO JUSTINIAN. 85 with RudorfF's note.) Without dwelling on Bocking's remonstrance with such modern writers as maintain that the Institutes were intended to be a system of the whole Roman civil law, we may quote, as the common view, his assertion that "both the Gaius and the Justinian profess to be works introductory to the study of Roman private law (G., I, 8, J., I, I, 2), ut sint totius legitimcz scicntia prima elementa, setting forth the fundamental principles of the Roman civil law — persons, things, actions.* (Bocking, Rom. Privatrecht, Einl. sect. II.) Huschke also assumes that the work was in- tended to be an institutional ' and systematic treatise, and explains repetitions by a theory that it was published in parts, the earlier parts having issued from Gaius's hands, so that he was compelled to insert additions and corrections in the later portions, if at all. Recently, however, Messrs Abdy and Walker have argued that, although the Institutes of Justinian was intended as a preliminary text-book for students, the Institutes of Gaius was not ; and they claim to account more satisfactorily than Huschke does for the repeti- tions. Their theory is that " Gaius's work is in every respect a book of practice." " What Gaius really had in view was, not the publication of a systematic treatise on private law, but the enunciation, in the shape of oral lectures, of matter that would be serviceable to those who were studying with a view to practice. The work itself was not directly prepared for pub- lication, but was a republication in a collected form of lectures (the outline of which perhaps had been originally in writing and the filling-up by word of mouth), when the cordial reception of the same by a limited class had suggested their being put into a shape which would benefit a wider circle of students." In support of this view they analyse the contents of Gaius, for the purpose of showing the very particular attention he has bestowed on the burning questions in legal practice at the time he wrote. The theory, however, seems to require much revision and elaboration.' The Three Oldest Codes. The Gregorian and Hermogenian Codes. — Already in the second century, certain collections of imperial constitutions had been made : there are pre- served in the Digest fragments of rescripts of M. Aurelius and Verus that had been crudely summarised by Papirius Justus ; and several volumes of imperial decisions and letters or propositions addressed to the senate had been published by Paul in the time of Septimius Severus and Caracalla. The collections made by the jurisconsults, Gregorian and Hermogenian, were private compilations, without legislative authority, containing the chief imperial rescripts of the second century, divided into books and titles according to subject, and arranged under these in order of date. Of the ' " Nee dubito Gaium ipsum hseo rudimenta eo consilio scripsisse, ut ' in stationibus iuB publice docentium ' (Gell., 13, 13) ab iis potius quam, ut haoteims factitatum, ab edioti prima parte iuris stuJium auapicaretur, quod pariter ei ineptum uideri debebat, ac nobis uideretur, si quia ab ordine quodam iudiciario explicando ante Institutiones uel Pandectas acceptas initium facere uellet." (Huschke, lurisp. Anteiust. 92.) « Abdy and Walker, Gaius and Ulpiaa (Ist ed.), pref., ix-xiii. They claim the independent support of Dr Demburg, in his Die Institwtionen des Gaius (Halle, 1869). 86 A SHORT HISTORY OF ROMAN LAW. Gregorian code there remain only seventy constitutions, embracing the century from Septimius Severus to Diocletian and Maximian (a.d. 196-304). It was probably drawn up between the latter reign and the reign of Con- stantine ; certainly not earlier than A.D. 295. Of the Hermogenian code there remain scarcely thirty-two constitutions, embracing only seventeen years (one in A.D. 287, and the rest in 293-304), under Diocletian and Maximian, and Diocletian and Constantius. Bu seven more constitutions of Valens and Valentinian (a.d. 364-5) are found in the ConsuUatio Veteris Cujusdam Jure- consulti, headed Ex Corpore Hermogeniani (Huschke, lurisp. Anteiust., pp. 743-5) ; and, if there is not a mistake in the heading, these would seem most probably to have been appended at a later period. If so, the original com- pilation of the Hermogenian code would date about the same time as the Gregorian or somewhat later. If these later constitutions originally belonged to it, then the date is brought down to the end of the fourth century.' In A.D. 429 Theodosius ordained that the Theodosian code should be modelled after thes'e two codes ; and they probably supplied to the Justinian code the constitutions prior to Constantine. Our information regarding them comes from later collections that reproduce passages from them.* No further work of Gregorian is known. But in the Digest there occur more than ninety fragments of a Juris Epitome, arranged in the order of the Edictmn Perpetuum, in six books, by a Hermogenianus — whether the com- piler of the code or not, we cannot tell. The Theodosian Code.— A century later, the study of the civil law appears to have been impeded, and in fact rendered hopeless, by the confusing accumulation of imperial constitutions. To remedy this misfortune, Theodosius II., in a.d. 429, appointed a commission of ten members, which in A.D. 435 he reconstituted and increased to sixteen members, to collect and arrange the imperial constitutions dating from the beginning of the reign of Constantine. The president of both commissions was Antiochus, a past- consul and past-praetorian prefect. The new code was to continue the com- pilations of Gregorian and Hermogenian, and to be framed on the model of these. In a.d. 438 the completed work received the imperial sanction, and was published simultaneously by Theodosius in the East and by Valentinian III. in the West ; and on the first day of the following January, it became the sole source of law for the Empire. The Theodosian code is arranged on the traditional plan of the Per- petual Edict. It consists of sixteen books divided into titles according to the matter, and the constitutions (ranging from A.D. 312 to 438) are placed in chronological order under the titles, being broken up into parts where necessary for the proper classification of the subjects. The original texts, it is to be noted, probably underwent some verbal alterations at the hands of the second commission, which was directed to remove superfluous and to add necessary words, to change ambiguous expressions, and to amend ' Probably before A.D. 398. (Soheurl, Lehrbuch der Institutionen, 26.) '■' Chiefly and almost exclusively from Lex Rom. Visigothorum, Mos. et Rom. Leg. CoUatio, ConsuUalio Vet. Cuj. JurecomuUi, Lex Rum. Burgundioniim, and the Vatican Fragments. FROM AUGUSTUS TO JUSTINIAN. 87 incongruities of statement. ' Th.& Jus privatum occupies the first five books, with certain parts of later books (8, 12-19 ; "> 30-39) : this is followed by the law relating to the constitution and administration (bks. 6-8), criminal law (9), public revenue and matters of procedure (lo-ii), towns and corpora- tions (12-14), public works and games (15), and ecclesiastical affairs (16). The first six books are defective, the rest are complete. The great import- ance of the code lies in the large number of constitutions it contains and the immense influence it exerted throughout the Roman world. Especially- notable are the provisions of the last book on the subject of religion. Projected New Code of Theodosius. — The Gregorian, Hermogenian, and Theodosian codes were to form a historical series, embracing in a certain methodical disposition the whole of the extant constitutions of the emperors up to A.D. 438, with occasional interpretationes inserted after paragraphs that seemed to require explanation, or an indication of their practical application. Theodosius further projected (A.D. 429) a new code, to comprise selections from these three codes and also from the treatises and answers of the juris- consults, omitting all abrogated and disused enactments, and showing the exact state of the law at the time of publication. This work was to be entered upon after the completion of the code. But it was never executed. Subsequent NovellcE. — In order to avoid disturbing the code by new con- stitutions {novella), it was agreed that none of these should possess the force of law until published both in the East and in the West. This practice was followed for some time, but it soon fell into disuse. As none of the novella of the West are found in Justinian's code, it is concluded that the novella of the West had not been recognised in the East. Three Undated Fragments^ Fr.igmenta Vaticana. — In 1823 a librarian of the Vatican discovered and published certain fragments of Roman law, which were reproduced in 1828 at Berlin under the title of Fragmenta Vaticana. To judge from the gaps in the numbering of the sections, there would seem to be less than one-fifth of the whole collection extant. It is not certain, however, that it formed a complete work ; it has more the appearance of an extensive and miscel- laneous compilation of materials. The matters treated of include the law of sale, excusatio, agents {cognitores and procuratores), usufruct, res iixoria and dowx-y, and donations and the lex Cinciaj and on the last half of these points it furnishes fresh details. Both the character of the jurists quoted, and the definite x-eferences to individuals give importance to the extracts. The frag- ments quoted verbatim are chiefly referred to Paul, less often to Ulpian, and still more rarely to Papinian ; there is one extract from Celsus, one from Julian, and one from Marcellus ; and frequent quotations from the other leading classical jurists of the empire, from Labeo to Pomponius and Scaevola, in passages that look like notes. The imperial constitutions quoted date from M. Aurelius to Valentinian I. (a.D. 163-372). The Gregorian and ' Cod. Theod. 1, 1, 6, 1 : " Quod ut, brevitate constrictum, claritate luoeat, aggres- suris hoc opus et demendi supervacanea [verba], et adiiciendi necessaria, et mutandi ambigua, et emendandi incoiigrua tribuimus potestatem." 88 A SHORT HISTORY OF ROMAN LAW. Hermogenian codes are both quoted, the former five times. It has been inferred from the absence of mention of the Theodosian code that these fragments belong to an anterior date ; but all that we seem entitled to hold is that they are later than the Hermogenian code. Puchta and Vangerow place the date between 372 and 438 ; while Mommsen places it about 320, regarding the more recent constitutions as later additions.' Mosaicarum et Romatiarum Legiim Collatio. — A work containing "A Comparison of the Mosaic and Roman Laws " was published at Paris in 1 573. Passages are quoted firom the Mosaic Law, and after each of these, with- out any further indication of intended comparison, are placed passages on the same matter drawn from the writings of the great Roman jurists or from the imperial constitution.'. There are thirty-three passages from Paul, twenty- two from Ulpian, eight from Papinian, two from Modestinus, and one from Gaius ; eight from the Gregorian code, and five from the Hermogenian — how many (if any) from the Theodosian is not certain. A quotation from a constitution of A.D. 390 places the collection at a later date. The name Rufinus, believed to be read on the MS., is supposed to indicate the author ; and it has been referred to Rufinus, a prsetorian prefect of Theo- dosius I., who died in A.D. 395, and to Rufinus, a fellow-pupil of St Jerome, founder of the Mount of GHves Convent, and one of the fathers of the Church, who died in A.D. 410. Huschke dates the compilation a few years before the end of the fourth century ; Vangerow, probably about the end of the fourth or the beginning of the fifth century.^ Other critics place it several centuries later. It has also been called Lex Dei. It has been very useful in reconstructing the works quoted from, especially Paul's SententicE, Ulpian's Regulcs, and the Gregorian and Hermogenian codes. Consultaiic Vetcris Cujusdam Jureconstilii. — In 1577 Cujas published a compilation consisting of the statement of legal questions followed by their solution on the principle of the Law of Citations, each quotation being referred with precision to its author, and the matter being digested into chapters. The author being unknown, Cujas announced the work as a Consultatio of some old jurist of the Lower Empire. It contains twenty-one passages from Paul's Senteniia, sixteen from the Gregorian code, twenty from the Hermogenian, and eight from the Theodosian. It has proved an im- portant help towards the right interpretation of the texts. As to the date, it can only be said to be later than the Theodosian code. Rudorff places it in the first half -of the fifth century, while Huschke places it decidedly at the end of the fifth century. Three Roman Codes promulgated by German Kings. As the northern tribes swarmed southwards, and closed in upon Rome, they respected the Roman law in the territories they overran, and adopted the principle of judging every oiTfender according to the laws of the nation ' Puchta, Curms, 1,577 {Bk. 11. Qesck. d. R. R., sect. 135). Vangerow, Lehriuch d. PandeJcten, 1, 6 {Einl. Beat. 2). Cf. Huschke, lunsp. Anteiust., pp. 616-20. Momm- sen, ed. mai., p. 403 f dig. ; ed. min. , prcef. , xiv. f oUg. ' Huschke, Iwisp. Anteiust., pp. 547-9. Vangerow, Pandekten, 1, 6 (Einl. sect. 2). FROM AUGUSTUS TO JUSTINIAN. 89 that he personally belonged to. After a time, some of the conquering kings formally promulgated, alongside of their own Germanic laws, certain bodies of Roman law, binding on all Romans within their kingdoms. Lex Romana Visigoihorum, or Breviarium Alarici. — The Roman law- promulgated among the Visigoths in Gaul was drawn up, by order of Alaric II., and under the superintendence of Gojaric, count of the palace, probably by a commission largely if not wholly composed of Roman jurists ; and it was decreed at Aire in Gascony, A.D. 506, with the assent of the ecclesiastics, nobles, and provincial electors representing the people. The extant copy is one addressed to a certain count, Timotheus, and officially subscribed by Anianus, the secretary, by order of the king. No law or juristic opinion outside this compilation was permitted to be quoted in a court of law. The work contains — (l) constitutions {leges) extracted from the Theodosian code, and a series of Novellm from Theodosius to Libius Severus (A.D.438-461) ; and (2) extracts, on the principle of the Law of Citations, from a few eminent jurists — namely, the Institutes of Gaius abridged (with omission of the fourth book and several other portions as obsolete), Paul's Sententipadie, 224-5. THE JUSTINIAN LAW IN THE WEST. lOJ some written rules founded on the Theodosian code), gradually displaced the existing Roman laws. It would seem not improbable that conquerors and conquered continued for a considerable time to be governed each by their own laws ; and that, finally, although it may appear too broad an assertion that the Fuero Juzgo arose from the amalgamation of the Gothic and Roman Law on the coalescence of the two peoples in the seventh century, yet a portion of the Roman law mingled with the victorious Germanic law.' For Mr -Stubbs's view {Const. Hist. I. 9) that " \.\\&fueros which contain the customary jurisprudence are distinctly akin to the customs of England and Germany " need not be accepted so strictly as to exclude the statement of Schmidt that "the law of descents, contracts, etc., were in general con- formable to the Roman law." During the medieval period, however, the Germanic element was predominant ; and " it is not until the fourteenth century that the civil law of Justinian supersedes the ancient customs, and then with its invariable results." The Bologna revival in the early part of the twelfth century soon spread its influence as far as Spain ; but the compilation called Siete Partidas was not published till 1263, and not promulgated or generally adopted as the law of Spain till the reign of Alonzo XI. in 1348. The matter of the Partidas is very largely derived from the Roman law — Partida III. being taken from it almost exclusively, and Parlida V. almost word for word. Partida I. is substantially a digest of the canon law. Roman Law in Scotland. — From the close alliance that so long subsisted with France, Scotland, besides borrowing many of its institutions from that country, also " imported a large portion of Roman jurisprudence to make up the deficiencies of a municipal law, long crude and imperfect, and which had made little progress as a national system till some time after the establish- ment of the Court of Session in 1532 by James V., after the model of the Parliament of Paris Properly speaking the teaching of the civil law commenced in Scotland at the Reformation in 1 560 ; " after which date, as well as before it, the more ambitious students of the civil law also availed themselves of the best professorial teaching of the continental universities. " In Scotland a knowledge of the Roman law has always been regarded as the best introduction to the study of the municipal law All the best writers on the law of Scotland, such as Stair, Bankton, Erskine, and Bell, were able civilians ; and though they have not produced separate treatises on the subject, their works abound with admirable illustrations of the Roman law, evincing great learning and research, and a familiar acquaintance with the writings of the continental jurists." (Mackenzie, Studies in Roman Law, 40-41.) Roman Law in England. — The influence of Roman on English law has been very differently estimated by different historians. The extreme con- servative view may be represented by. Professor Stubbs. " England," says Mr Stubbs, "has inherited no portion of the Roman legislation except in the form of scientific or professional axioms, introduced at a late period, and through the ecclesiastical or scholastic or international university studies. 1 Schmidt, Civil Law of Spain and Mexico, Introd. 29. Schmidt quotes Cujas {De Fmdis, ii. 11) to the effect that the Fuero .Tuzgo is nothing else than the Eoman law modified to suit the condition of the Goths [Introd., 37). I08 A SHORT HISTORY OF ROMAN LAW. Her common law is, to a far greater extent than is commonly recog- nised, based on usages anterior to the influx of feudality — that is on strictly primitive custom." (Stubbs, Const. Hist, of England, I. lo, sect. 8.) The other extreme is expressed in the less recent autho- rities relied on in the Introduction to Reeves's History of the English Law, where such writers as Guizot and Mackintosh are followed with too much confidence. For the first stage we shall agree with Mr Stubbs and follow Savigny ; on the crucial point of Bracton's obligations to Roman law we shall put ourselves under the fresh and trustworthy guidance of Professor Giiterbock, of Konigsberg.' At every step it is necessary to bear in mind the vital distinction between the analogy of two systems and the derivation of one from the other. The definite traces of Roman law surviving the Roman domination of the island are exceedingly slight. Selden {Diss, ad Fletam, cap. 7) affirms that the Roman law wholly disappeared in England, until it was reintro- duced from Bologna in the twelfth century. Savigny '' adopts this view, denying absolutely its practical application as law for the people, but at the same time admitting the existence of some indications of its study by the clergy and in the schools. These indications, however, amount to no more than three or four small points — two in the laws of Cnut, one in a law of Henry I. (1133),' and one in the laws of Wales (about 940). To these we may add some regulations of jfithelstan, Edgar, and ^thelred respecting coin, which Mr Stubbs ^ compares with those of Lewis the Pious and Charles the Bald, finally tracing them all to the Justinian Code.^ A little before the middle of the twelfth century, Vacarius, a Lom- bard, came over to England with Archbishop Theobald, and presently ^ Giiterbock, Henricics de Bracton und sein Vcrhdltniss zum Rom. Recht. The English translation, by Brinton Coxe, " Bracton and his Relation to the Roman Law " (Lippincott), will be the edition quoted from. Brunner, Gesch. d. Fram., Korm., u. Engl. RechUqudUn, sect. 12, in HoltzendorfE's Bncyclopadie, 266, follows Giiterbock. ^ Savigny, Gesch. d. R. R. im Mittelalter, ii. 167 (Kap. x. the whole) ; iv. 356 (Kap. xxxvi.). ' Stubbs, Const. Mist. i. 494, note 1 (sect. 147), says, "many extracts from the civil and canon law are found in the so-called Leges Henrici Primi." * Stubbs, Const. Hist. i. 206, note 5 (sect. 78). ^ King jEthelberht (died 616) is said to have caused the publication of the laws of the English, after the example of the Romans (Bseda, Hist. Bed., ii. 5). But this refers only to the form, not to the contents, which contain no traces of Roman law (of. Savigny, loc. cit.). — With the view in the text, contrast Reeves, Hist, of the Engl. Law, Introd. xlii. (of. also xcii. and ,xciv.) : "The Saxons neither created nor destroyed ; they adopted and appropriated, trying, no doubt, to mix up their own barbarous usages, which, however, it was found, would not coalesce or unite with civilised institutions, so that this baser matter soon fell off and left the entire fabric of Romanised laws and institutions, save that the Saxons infused into the Roman insti- tions their own rough spirit of freedom, which gave them fresh life and vigour. But this did not destroy the Roman laws and institutions." As to the real nature of the English conquest of England, see Freeman, Old English Hist., 27-28, and Green Making of England, ch. iv. THE JUSTINIAN LAW IN ENGLAND. IO9 began to lecture on the civil law at Oxford with remarkable success. The new teaching, however, soon aroused warm opposition, and King Stephen, out of dislike to the primate, silenced Vacarius, and by royal proclamation prohibited anyone from even retaining in their possession the obnoxious books of the law ; but persecution had its usual effect, and the futile prohibition was removed either by Stephen himself or by his suc- cessor.^ For the next century and a half, from the teaching of Vacarius to the death of Edward I., the influence of the new element in the formation of the English law " was so great, and its results were so important, that the whole of that period is very properly styled by Biener its Roman epoch." (GUterbock, 17.) Mr Stubbs admits that "before the end of the reign of Henry II. the procedure of the Roman civil law had become well known by the English canonists," but he holds that " its influence was not allowed much to affect the common law of the kingdom." (Stubbs, Const. Hist., I. 494, note I, sect. 147.) Shortly -before 1 1 go appeared Glanville's Traclatus de Legibus et Consuetudinibus Regni Anglice. Glanville's preface imitates the procem to Justinian's Institutes, and the work itself shows traces of acquaintance with Roman law, but nowhere can the actual use of it be demonstrated, except in the discussion of agreements and contracts. (Glanville, Lib. 10.) Glanville regards Roman law as foreign law, contrast- ing leges RoinancB with consuetudo regni. But a great advance was made in the state of the English law in the next two generations separating Glanville from Bracton. About seventy years after Glanville, in the middle of the thirteenth century, flourished Henry of Bracton, the first scientific commentator on the law of England. His great treatise, De Legibus et Consuetudinibus Anglics Libri Quinqtie,'^ was most probably completed in 1256-59. The foreign elements in it are derived from Roman and canon law ; the greater and more important part, from the Roman law. It shows close familiarity with the Corpus Juris. The Novels are not quoted ; but the Institutes are generally referred to in one passage, and there are twelve express quota- tions from the Digest and ten from the Code, while a very large number of passages " are incorporated into the text itself and into the tissue of the author's commentary without any statement of their source." (Giiterbock, 50-51.) The original authorities have been less used than a secondary treatise, Azo's Summa of the Code and of the Institutes — a work that exerted an important influence on the design, if not on the origin of Bracton's book, and seems to have served him as a model. " Like Azo, Bracton calls the dogmatic exposition of the law of his nation a summa. . . . Throughout nearly the whole of Bracton's book, we can distinctly trace the scientific influence of Azo's views and doctrines, especially in the definitions and divisions of legal notions and conceptions, which are generally clothed in Azo's words. . . . Particularly where Bracton follows the course of the 1 The references are collected and partly quoted in Stubbs, 0 Gatcrbock, 166-170. JUS GENTIUM. 117 (before the Pr^tor) as opposed to injudicio (before &■ judex). In the phrase sui juris or alieni juris it means power or control. Again jus sanguinis, the relation or tie o£ blood. Ulpiau uses jus = juris prudentia, when he says that jus is the art of dis- tinguishing the good and the fair {ars loni et aiqui). (D. 1, 1, 1, pr,). Jus Pablicum et Privatum.. In this study there are two parts, public and private. Public Law is what looks to the standing of the affairs of Rome ; Private Law to the advantage of individuals. (J. i, r, 4.) Elsewhere (D. 1, 1, 1, 2) we are told that Public Law is the law relating to sacred rites (sacra), to Priests and Magistrates. The distinction that seems to be intended by Justinian may perhaps be expressed with more precision from a different stand- point. Two kinds of cases come before legal tribunals. In one, private individuals seek redress from private individuals for evils affecting themselves ; in the other, persons sue or are sued not in their own behalf, but as representing the State or Sovereign. Causes are thus either (1) between private individuals or (2) between the Sovereign and private individuals. Public Law therefore embraces Ecclesiastical Law, Constitutional Law (including the Administration), and Criminal Law. The Institutes of Gains and the Institutes of Justinian (with the exception of the short title at the end) are concerned exclusively with Private Law. Jus Naturale, Jus Gentium, Jus Civile. We must say, therefore, of Private Law that it is threefold {pis triper- iitum), for it is gathered from the precepts of the Jus NaUirale, of the Jus Gentium, and of the Jus Civile. (J. i, i, 4.) The Jus Naturale is what nature has taught all living things. That law is not peculiar to the race of men, but applies to all living things that are born in the sky, on the earth, or in the sea. Hence comes to u& the union of male and female that we call matrimony, hence the begetting of children and their upbringing. We see indeed that all other living, things as well are held to know that law. (J. i, 2, pr.) The Jus Civile and the Jus Gentium are distinguished in this way. All people ruled by statutes and customs use a law partly pecuUar to themselves, partly common to all men. The law each people has settled for itself is peculiar to the State itself, and is called Jus Civile, as being peculiar to that very State. The law, again, that natural reason has settled among all men, the law that is guarded among all peoples quite alike, is called the Jus Gentium, and all nations use it as if law. The Roman people therefore use a law that is partly peculiar to itself, partly common to all men. The nature of each severally we will set forth at the proper places. (J. 1,2, i ; G. I, I.) The laws of nature, indeed, that are observed equally among all nations, settled by a certain divine forethought, remain always firm and unchange- able. But those each State has settled for itself are usually changed often, either by the tacit consent of the people, or by another statute being passed afterwards. (J. i, 2, 11.) The Jus Gentium is common to all the race of men : for the require- ments of actual life and the needs of men have led the nations of men to settle certain things for themselves. Wars indeed, and often captivity and I 1 8 A SHORT HISTORY OF ROMAN LAW. slavery, have followed contrary to the Jus Naturale, for by the Jus Naturale all men from the beginning were born free. By this Jus Gentium also nearly- all contracts were brought in, as purchase and sale, letting and hiring, part- nership, deposit, loan, and countless others. (J. I, 2, 2.) The Jus Civile takes its name from each several State — that of the Athenians, for instance ; for if any one wishes to call the statutes of Solon or of Draco the Jus Civile of .the Athenians, he will not be inistaken. So, too, the law the Roman people use we call the Jus Civile of the Romans, or the law of the Quirites {Jus Quiritium) that the Quirites use ; for the Romans are called Quirites from Quirinus. But whenever we do not add what State's law it is, we mean that it is our own law ; just as when we say "' the poet," and add no name, it is understood that among the Greeks it is the pre- eminent Homer, among us Virgil. (J. I, 2, 2.) To individual men, things come to belong in many ways. Of some things we become owners by the Jus Naturale, which, as we have said, is called the Jiis Gentium; of some by the Jus Civile. It is more convenient, there- fore, to begin with the older law. Now it is manifest that the Jus Naturale is the older, since it was put forth by universal nature along with the actual race of men ; whereas the rights under the Jus Civile began to be only when States began to be founded, magistrates ,to be elected, and written statutes to be enacted. (J. 2, i, li.) These passages state fairly the philosophy of Law as understooa by the Roman jurists ; and they throw light upon the ancient theory of a "Law of Nature," which has played so conspicuous a part.in the political thought of Europe. Before criticising the theory of Natural Law, it is advisable at once to point out an ambiguity in the phra-se Jus civile, or Civil Law. Jus civile as opposed to jus gentium is defined in the text ; it means the peculiar local law of Rome. But this is not the only, or even the general use of the words. What the Roman jurists had chiefly in view when they ^spoke of jus civile was not local as opposed to cosmopolitan law, but the old law of the city as contrasted with the newer law introduced by the Praetor {ju^ Prcetorium, jus honorarium). Largely, no doubt, the jus gentium corresponds with the jus Prcetorium ; but the correspondence is not perfect. The Law of Sale, for example, was not brought in by the Praetor, but it is part of the jus gentium. If the definitions of the text be taken strictly — that jus civile is the law found in Rome and nowhere else, while jus gentium is the law found in Rome and everywhere else — it will appear that the great bulk of the Roman Law belonged to neither category. There is very little, if any, of the old law that cannot be matched by similar laws in other countries ; and if again we look for any institution of law that is to be found in every State, we must either admit vague generalities, or allow that scarcely a single rule of law is of absolutely universal application. The triviality of the distinction may be gathered from the instances given by Theophilus, one of the compilers of the Institutes of Justinian, and the oldest commentator on that work. As an example of jus civile, Theophilus quotes the rule of the Spartans not to aJlow aliens to settle in their midst, lest the institutions of Ijycurgus should be depraved by contact with a foreign element. But the Spartans are not the only people in ancient and modem times that have exhibited a similar jealousy of aliens. Again, he cites as examples of the jus gentium the punishment of death for murderers, criminal proceedings for adultery, and a pecuniary fine for theft. If it be said that these were probably good instances with the information possessed by Theophilus, then what is the worth of a generalisation that is liable to be upset with every fresh accession of knowledge ? The Roman jurists would probably have attached less importance to the distinction SOURCES OF ROMAN LAW. II9 between Local and Universal Law, had it not been for the theory of a Law of Nature (jus naturale) adopted by them from the speculations of the Stoics. The supreme maxim of ethics was expressed by the Stoics in this form, " act aocordinj to Nature." A vague notion of the Universe as governed by law, on the moral as well as the physical side, led to the identification of the jus gentium, the general or universal element of law, with the jus naturale or Law of Nature. How feeble a hold the Romans had of the idea of Natural Law may be gathered from the instances quoted by Ulpian, who confounds the gratification of appetite with law. On one point only do the Romans seem to have opposed the jus gentium to the jus naturale in a case that redounds more to the credit of their good feeling than to the solidity of their speculative philosophy : they declared that slavery, although an institution of the jus gentium was opposed to the Law of Nature. This barren declaration, however, seems to have exercised no appreciable influence in reforming the law, (See p. 35.) Sources of Roman 'Ls.vf. It is agreed that our law comes in part from vsfhat is written, in part from what is unwritten ; just as among the Greeks, of laws (yo/jioi) some are written {'iyy^aipoi), some unwritten (ay^afoi). (J. i, 2, 3.) The division of the jus civile into two species seems not at all inappro- priate, for its origin seems to flow from the institutions of two States ; Athens, namely, and Sparta. In these States the usual course of procedure was this — the Spartans preferred to commit to memory what they were to observe as statutes ; but the Athenians guarded (only) what they found enacted in their written statutes. (J. i, 2, 10.) Written law includes statute {lex), decree of the commons (plebisciiuni), decree of the Senate {Senatus Consultum), the decisions of the Emperors {principum placita), the edicts of the magistrates [that have the right to issue edicts], and the answers of learned men {responsa prudentiiim). (J. i, 2, 3 ; G. I, 2.) From what is unwritten comes the law that use has approved ; for ancient customs, when approved by consent of those that use them, are like statute {legum imitaniur). (J. i, 2, 9.) To these Cicero adds judgments at law {res judicata), and equity [aequitas). (Cic. Top. 5, 28.) Custom {invetei'ata consueludo, diuturna consuetudo), as being, so to speak, collected from the informal suffrages of the people, had the force of law (D. 1, 3, 33) ; and in like manner laws might be repealed not merely by the legislature, but through tacit disuse by the people. (D. 1, 3, 32, 1.) The best evidence of custom was the judgments of Courts of Law. (D. 1, 3, 34.) It was held that no custom could be recognised if it were opposed to law or reason. (0. 1, 14, 2.) A statute {lex) is what the Roman people, when asked by a senatorial magistrate — a Consul for instance — [ordered and] settled. A decree of the commons {plebiscitmn) is what the commons, when asked by a magistrate of the commons — a Tribune for instance — [ordered and] settled. The commons {plebs) differ from the people {populus), as species does from kind (genus) ; for the name people means the whole of the citizens, counting the patricians and senators as well. But the name '' commons " means the rest of the citizens without the patricians and senators. [Hence in old times the patricians said that they were not bound by the decrees of the commons, because they had been made without their authority.] But afterwards the I20 A SHORT HISTORY OF ROMAN LAW. lex Hortensia was passed [providing that the decrees of the commons should bind the whole people] ; and in that way they were made quite equal to statutes. (J. I, 2, 4; G. i, 3.) For the history of the term Ux, see Clark's Practical Jurisprudence, p. 29. See above pp. 60, 75, 8. A Senatus Consultum (decree of the Senate) is what the Senate orders and settles. [It takes the place of a statute, although this was formerly questioned.] After the Roman people grew so big that it was hard to bring them together on one spot in order to ratify a law, it seemed fair that the Senate should be consulted instead of the people. (J. i, 2, 5 ; G. i, 4.) Theophilus traces the authority of the Senate to the lex Eortmsia, which gave full validity to the plebisdta. See pp. 60, 75. An imperial constitution is what the Emperor settles by decree, edict, or letter. It has never been doubted that this takes the place of a statute, since the Emperor himself receives his power by statute, (G. I, 5.) Nay, more : what the Emperor determines has the force of a statute (^uod princifi placuit legis habet vigorem), since by the lex regia that is passed to give him imperial power, the people has yielded up to him all its own power, both military and civil. Whatever, therefore, the Emperor settles by a letter, or after inquiry decrees, or commands by an edict, is (it is agreed) a statute. These are what are called Constitutions. (J. I, 2, 5.) Plainly some of these are personal, and are not to be dragged into pre- cedents, since this is not the Emperor's wish. For if he grants some one a favour because he deserves it, or inflicts a penalty on some one, or helps some one without a precedent, he does not go beyond the person. Others, again, since they are general, bind all beyond a doubt. (J. i, 2, 6.) See above, p. 76. Edicts are the orders of those that have the right to issue Edicts (^jus Edicendi ). This right the magistrates of the Roman people have ; but the largest right in regard to Edicts is that of the two Praetors, the city Prsetor and the Praetor for aliens, whose jurisdiction in the provinces belongs to the Presidents ; and again that of the Curule .^diles, whose jurisdiction belongs to the quaestors in the provinces of the Roman people. Into the Emperor's provinces no quaestors at all are sent ; and therefore in these provinces no such Edict is put forth. (G. i, 6.) As to the distinction between Provinces of the Roman People and Emperor's Provinces, see p. 72. The Praetors' Edicts have no slight authority in law. These we usually call also the Jus Honorarium; because those that bear high honours, the magistrates that is, have given their authority to this branch of law. The Curule jEdiles, too, put forth an Edict in certain cases ; and that Edict is a portion of the Jus Honorarium. (J. i, 2, 7.) See above, p. 34, sq. The answers of learned men {responsa prudentium) are the decisions and opinions of those that have been allowed to build up the laws. It was an institution of ancient times that there should be men to interpret the laws on SOURCES OF ROMAN LAW. 121 behalf of the State. To them the Emperor gave the right to answer {jus respondendi), and they were called jurisconsults. [If all their opinions coin- cide, what they thus declare takes the place of statute ; if they differ in opinion, the judge may lawfully follow which he pleases. This is pointed out by a rescript of the late Emperor Hadrian.] The decisions and opinions of all of them held such authority that, as has been settled, a judge could not lawfully depart from what they answered. (J. i, 2, 8 ; G. i, 7.) See above, p. 76, s(j. 122 CLASSIFICATION OF ROMAN LAW. CLASSIFICATION OF EOMAN LAW. Two errors may be committed in dealing with the classi- fications of ancient bodies of law. On the one hand, it is a mistake to disparage the attempts of old writers to bring order into the description of legal topics, because their arrangements will not stand the tests that analytical juris- prudence applies. On the other hand, it is a greater mis- take blindly to follow imperfect classifications, merely be- cause in their time they were worthy efiforts of the human intellect. Critical wisdom is not exhibited by contempt of the old-fashioned pack-horse, but something less than wisdom would be shown by a merchant, in these days, if his admiration for antiquity were to induce him to revive that ancient mode of conveyance in opposition to railways and steamboats. If we examine the so-called codes of ancient law, we are struck not less by the peculiar order in which the various topics are discussed, than by the contents of the codes themselves. The farther back we go, and the nearer we get to the dawn of civil jurisdiction, the more conspicuous is the place assigned to Courts of Justice and rules of Procedure. In the XII Tables Procedure occupies the foremost place. In Narada, one of the oldest of purely legal treatises on Hindu law, the order of topics is as follows -.^ — " The eight constituent parts of a legal proceeding are the King, his Ofiicer, the Assessors, the Law Book, the Ac- countant and Scribe, gold and fire for ordeals, and water for refreshment. ''Kecovery of a Debt, Deposits, concerns among Partners, Abstraction of Gift, Breach of promised obedience, Non-pay- ment of Wages, Sale without ownership, Non-delivery of a commodity sold, Rescission of Purchase, Breach of Order, con- tests about Boundaries, the duties of Man and Wife, the law of Inheritance, Violence, Abuse and Assault, Gambling, Miscel- laneous Disputes." " The principle and meaning," says Sir H. S. Maine,^ " of this ancient classification, strike me as obvious. The compiler of ' Narada, Trans, by Dr Jolly, 6. " Early Law and Custom, p. 381. ANCIENT CODES. 1 23 Narada or his original, makes the assumption that men do quarrel, and he sets forth the mode in which their quarrels may- be adjudicated upon and settled without bloodshed or violence. The dominant notion present to his mind is not a Law, or a Right, or a Sanction, or the distinction between Positive and Natural Law, or between Persons and Things, but a Court of Justice. The great fact is, that there now exists an alternative to private reprisals, a mode of stanching personal or hereditary blood-feuds other than slaughter or plunder. Hence in front of everything he places the description of a Court, of its mechan- ism, of its procedure, of its tests of alleged facts. Having thus begun with an account of the great institution which settles quarrels, he is led to distribute law according to the subject matter of quarrel, according to the relations between human beings which do, as a fact, give rise to civil disputes. Thus Debt, Partnership, the Marital Eelation, Inheritance and Dona- tion are considered matters about which men at a certain period of civilisation do, as a fact, have differences, and the various rights and liabilities (as we should call them) to which they give rise, are set forth simply as guides towards determining the judgment which a Court of Justice should give when called upon to adjudicate upon quarrels." Next to the XII Tables, the Prastorian Edict ranks as the most important source of Roman law. In form, each item in the Edict was a declaration of the Prsetor that, under given circumstances, he would grant an action, or a special defence. The Perpetual Edict was thus a collection of actions; and the order in which they were mentioned naturally followed, with more or less fidelity, the XII Tables, of which the Edict was at once a supplement and an emendation. The Codes of Hermo- genian, Theodosius, and Justinian do not strike out any new classification ; the Digest and Code are not arranged upon any logical or scientific principle. The plan that is followed hardly gives any clue to the place where we should expect to find a given text, and not seldom, some of the most important texts are not to be found in the place where the arrangement, such as it is, would lead us to expect them. Pothier spent many years of his life in bringing into order the detailed ex- position of the Titles of the Digest of Justinian, but he scarcely ventured to alter any of the titles themselves, although he omitted a few that were absorbed under others. Even within those limits, Pothier's arrangement of the Digest is 124 CLASSIFICATION OF ROMAN LAW. simply invaluable to any one that has occasion to consult that work. But in some of the elementary works prepared by Roman jurists as introductions to the study of the law, a remarkable attempt is made to introduce a logical classification. Gains, and after him Justinian, in his Institutes, introduced a famous threefold division of law. All our law, he says, may be divided into three branches, for it relates to Persons, to Things, or to Actions.^ The striking feature in this arrangement is the place assigned to Actions — a topic closely corresponding with Law of Pro- cedure. It comes last, while in the XII Tables, as in Narada, it stands first. In the time of the classical jurists, Substantive Law has thus definitively taken precedence of Adjective Law. Gaius recognises as clearly as Bentham or Austin, that Pro- cedure is only a means to an end, and that the primary object of consideration in a legal treatise is not the form of action, but the vindication of Rights and the enforcement of Duties. The precedence given to actions in the XII Tables was as much out of place in the Roman Empire as it is in any modern system of law. In substance, the arrangement of Gaius is an arrangement of Rights and Duties ; but as such it is open to objections that Gaius could not well have avoided. The reason is that although, in fact, Right and Duty formed the pivot of classification, yet the fact was too much obscured to be readily appreciated even by the jurists themselves. The explanation, from one point of view, is to be sought in the defects of their technical language. They were familiar with obligatio as an equivalent for legal Duty, but they had not seized the corre- sponding idea of legal Right. This incompleteness may be traced in the forms of actions. In the largest cldss of actions (obligatio) the question was whether the defendant was bound to do or give.^ In the other class of actions (actiones in rem) the form was not usually BO distinct; if the action were for ownership,, the plaintiff alleged "that the thing was his own."^ By this phrase, the fact was obscured that the action was to enforce " rights '' of ownership. The " right " of the plaintiff is implied, but it is not ^ Omne autem juSj quo utimur vel ad personas pertinetj vd ad res vel ad actiones, (J. 1, 2, 12 ; G. 1, 8.) ^ Cum intendimus da/re, facere, praestare OPORTERE. (G. i, 2.) ' Rem intendimus nostrum essi. (G, i, 2.) ACTIO— OBLIGATIO— JUS. 1 25 explicitly asserted as " duty " is in actiones in personam. But in one class of actions in rem, namely those relating to servitudes, the right of the plaintiff was explicitly asserted. "• The plaintiff alleged that he had a right of use or usufruct ; of passing, or leading water ; or of building higher or of prospect, as the case might be. Jus, the nearest equivalent to the conception of a Right, was thus confined to an insignificant class of rights of property ; it was not used with reference to ownership; and consequently the jurists were a long way from perceiving that even ohligatio is only a right looked at from the point of view of the promisee instead of the point of view of the promisor. The order of development of juridical ideas among the Romans stands thus: — Action, Obligation, Jus. In the early stage of law, as will be seen more fully hereafter (Book IV. Law of Procedure), the legal remedy is the only con- ception brought to the front ; the notion of obligation even is latent, and the question submitted for trial is whether the plaintiff has made a true assertion, not whether he has a legal right or the defendant has failed to perform a legal obligation. Next, the idea of obligation is introduced in a manner highly instructive. The question submitted for trial is whether the defendant ought to pay a sum to the plaintiff, that sum being in fact a wager as to the truth of an assertion. Another step, and we find the plaintiff claims explicitly — rem suam esse, implying, but not asserting, that the plaintiff has A RIGHT of ownership. Attention to these facts enables us to understand how Gaius came to classify law substantially as a system of rights and duties, while he himself was not fully conscious of the principle by which he was guided. Men learn to use language with pro- priety before they discover and name the parts of speech. Roman law had assumed a shape in which the determining principle of arrangement was the formation of groups accord- ing to the character of the rights or duties of which they were composed ; but the principle was not consciously recognised. Gaius, indeed, lays down a principle 6f division, but that serves only to separate the jus de personis from the general body of the law. With the exception of the jus de personis, the whole body of law is grouped together under the uuinstructive ' Intendimus jus aliquod nobis competere. (G. 4, 3.) 126 CLASSIFICATION OF ROMAN LAW. heading of jus de rebus. Gaius offers no explanation of the principle of sub-division of res, except the fallacious and mis- leading division of res oorporales and res incorporales ; and it is just the part left unexplained that is, on the whole, his best and most enduring contribution to the orderly arrangement of legal rules. The classification of Gaius, leaving aside the Law of Pro- cedure, is substantially as follows : — Law oonoekning Persons. I. Slaves and Freedmen. II. Potestas over children. III. Marms or Marital Power. IV. Mancipium, "V. Tutela of persons under age of puberty. VI. Tutela of women above the age of puberty. VII. Cura. Law concerning Things. A. Kes Corporales. I. Ownership, or rather Titles to ownership, including a passing reference to Servitudes. Mes divini juris, res comrtiunes, res jniblicae, res universitatis (merely mentioned in passing). Ees Incorporales, A. Acquisition per universitatem. I. Hereditas. (I.) Testamenta, with appendix on Legatmn. (h.) Fideicommissa (both universal and singular), (ill. ) Succession ah intestato, II. Bankruptcy. (Bonorum, venditio.) III. Arrogatio and in manum conventio. (Gaius omits the contrast to acquisition ^er universitatem.) I. Obligatio. (i.) Contractus. (ii.) Delictum (including wrongs to Person and wrongs to Property). Throwing out of account minor points, the leading divisions of Substantive Law, according to Gaius, are as follows : — A. Law relating to PERSONS {Slavery, Potestas, Manus, Tutela, etc.) B. Law relating to OWNERSHIP and SERVITUDE, c. Law relating to Inheritance and Legacy. D. Law relating to Obligatio (including 1. Contract, and IL Delict.) A comparison of this table with the classification followed in the present work, shows how very near Gaius came to an arrangement based rigorously upon the modern conception of Rights. THE ARRANGEMENT OF GAIUS. 1 27 a. Rights of Freemen as such. (Appears in Gains under Delictum.) A. Eights over persons regarded as things. Slavery, Potestas, Manus, Mancipium (not Tutela). B. Ownership (including torts to property), Servitude, and Mortgage. c. Obligatio. 1. Contracts and Quasi-Contracts (as in Justinian). 2. Status. Rights over persons of a tutelary not pro- prietary character. D. Inheritance and Legacy. The reader will observe in this table a change in the posi- tion of Inheritance and Legacy. That topic, on account of its highly complicated character, ought clearly to come after, instead of before, obligatio. The arrangement of Gains sins against the cardinal rule of all scientific classification, which requires that the SIMPLE should come before the COMPLEX. The position of Inheritance in the work of Gaius was pro- bably determined by an accident. Having concluded the subject of Title as a means of acquiring ownership of indi- vidual things, he was led to consider Title by universal suc- cession, of which Inheritance is, by a long way, the most important instance. So much must suffice in the meantime about acquiring single things : for the law of legacies, by right of which you acquire single things, as well as that of trusts when single things are left you, we will bring in more fitly further down. Let us see now, therefore, in what way you acquire things per universitatem. If then you are made a man's heir, or claim bonorum possession or if you adopt a man by arrogaiio [or receive a woman as your wife in manu], or if a man's goods have been made over to you in order to uphold the grants of freedom to slaves, in that case all that is his passes over to you. First, let us look narrowly at inheritances ; these are of two kinds, for they belong to you either under a will or by way of intes- tacy. First, let us look narrowly at those that come to you under a will. In this it is necessary at the outset to set forth how wills are drawn up. (J. 2, 9, 6 ; G. 2, 97-100.) Apart from the mistake into which Gaius was thus led in making Inheritance precede Obligation, the difference between the tables hes in two points. In the second Table, delictum does not appear as a separate head, but in so far as it consists of wrongs to the person, it appears under the category of " Rights of Free men as such ; " and, in so far as it consists of wrongs to property, under " Slavery," " Ownership," etc. The 128 CLASSIFICATION OF ROMAN LAW. other change is the transfer of Tutela from group A. to a new group " Status," not in Gaius, and consisting of rights over persons of a class, but not rights partaking of the character of ownership. With these exceptions, the arrangement of Gaius coincides with a classification based upon the distinguishing marks of Primary Rights. When we once understand why Gaius classified tutela with potestas, although there is nothing in common in the nature of the institutions, and why he co- ordinated delict with contract as sub-classes of ohligatio, it will appear how completely the Romans had passed away from the mode of thought that dictated the precedence of actions in the XII Tables, and how nearly they came to classify the sub- stantive law on the basis of rights. It may be readily granted that the arrangement of Gaius was excellent and even, allowing for certain peculiarities in the Roman law, almost theoretically perfect, but it does not follow that in a modern treatise we ought to follow him slavishly in the points where he is weak as well as in the points where he is strong. Of the seven classes included in the Law concerning Persons, only one — Guardian and Ward — is represented in English law. We need only ask, would any writer on English law begin with Guardianship and Committees of lunatics as a leading division of substantive law, and throw all the rest into a vague category called " Things ? " The mere statement of the question is enough to show us that there must have been some special features in the Roman law making a divi- sion of Law of Persons at least plausible, while the absence of such features in English law makes it absurd. Those reasons are not far to seek. If we omit the class of Freedmen (which introduces a cross- division) and add the class of persons that are at once sui juris and not under any form of guardianship, we get a curiously exact and exhaustive classification of Persons.* If the inhabi- 'Men— I. SlaTea, _ A. Slavery. { 1. Koman Citizen. ■Preedmen, ... ... ... I 2. Latini Juniani. ( 3. Dedititii. Ul Free, I B. Potestas, 1. FenoiiB alieni juris, . 47, 10, 1, 4.) When the statue of a man's father, placed on a pedestal, is struck with stones, an injuria is done to the man himself. (D. 47, 10, 27.) If the statue were joined to a tomb, so as to become an immoveable, the offence was regarded rather as sacrilege, and the remedy of the son was the action for a violated tomb (actio sepulcri violati), 1 Mann fustive si os f regit liiero, CCC, [n] servo CL poenam subito. Si membrum rupsit, ni cum co pacit, talio esto. (T. viil. 2, p. 20.) ^ Convicium autem dicitur, vel a concitatione, vel a conientu, hoc est a coUatione vocum : cum, enim in wnum complures voces conferuntw, convicium appellatur, quasi convocium. (D. 47, 10, 15, 4.) ' Qui adversus bonos mores convicium cui fecisse, cujusve opera factum, esse dicetur quo adversus bomsmm'es convicium fieret : in eum judicium dabo. (D. 47, 10, 15, 2.) 148 PERSONAL RIGHTS. 4. Slander, Libel. — It is the diity of every one to abstain from diminishing the reputation or good name of another.^ The Praetor says, " Let nothing be done to defame any man. If any one does anything against the foregoing, I will take up each case on its merits, and visit it accordingly." This statement, although it indicates exactly the object of the law, is too wide, and must be quahfied by the illustrations here subjoined. A man's reputation may be assailed by acts, or by words written or spoken. 1°. By words. (1.) To insult a freeman by calling him a slave is an injuria. (C. 9, 35, 9.) So likewise to call one's grandmother a slave falsely. (C. 9, 35, 10.) (2.) To call a man an informer falsely, is an injuria. (C. 9, 35, 3.) 2°. By writing. And it is an injuria to defame a man in prose or in verse whether you write the libel, draw it up, or publish it, or wilfully instigate or abet those that do. (J. 4, 4, I ; G. 3, 220.) The words of Justinian are taken from the Lex Cornelia (b. C. 81), which proceeds thus •? "Even if he published it in the name of another, or anonymously, an action on the subject shall be allowed ; and if he that did such a thing is cooidemned, it is ordained that he shall be by statute incapable of taking any part in the making of a will." Carmen, is the word employed in the XII Tahles, which sanctioned the punish- ment of beating. That pxmishment was taken away by the Lex Portia. Carmen, says Paul (Paul, Sent. 5, 4, 15), includes not only inscriptions [epigrammaia) and satirical poetry (satircE), hut every form of writing. Psalte.rium was a libel composed to be sung in public. (Paul, Sent. 5, 4, 16.) Insults conveyed in pictures were also libels. It must be borne in mind that there was no injuria without an intention to destroy another's good name. Hence, in litiga- tion, each party might lawfully make injurious statements of the other ; but even in this case moderation must be observed. (Paul, Sent. 5, 4, 15.) The mere circumstance, however, of a libel being contained in a document sent to the Emperor, did not protect it from punishment. (D. 47, 10, 15, 29.) ''-Ait Frcetor: " Ne quid infamandi causa fiat: si quia adversus ea fecerit, prout quceque res erit, animadvertam." (D. 47, 10, 15, 25.) 2 Etiamsi aUerius nomine ediderit, vd sine nomine, uti de ea re agere licerel, el, si condemnatus sit qui id fecit, inteslabilis ex lege essejubetur. (D. 47, 10, 5, 9.) " Jntestabilis " here means that the convicted person could neither make, nor be witness to, a will. (D. 28, 1, 18, 1.) INJURIA. 149 The truth of an alleged libel was a good defence. To con- stitute a libel the statements must be not merely defamatory but false. (D. 47, 10, 18, 4; C. 9, 35, 10.) 3°. By acts. (i.) And it is an injuria to take possession of a man's goods as if for debt [and to put them up for sale] when you know he owes you nothing. (J. 4, 4, I ; G. 3, 220.) (2.) Akin to this is the offence of demanding as a debt what is not due, in order to injure another's credit. (D. 47, 10, 15, 33.) (3.) It was usual to sue a debtor before proceeding against his sureties, and who- ever, therefore, passed over a solvent debtor as if he were insolvent, and proceeded against the sureties to damage his credit, committed an injuria. (D. 47, 10, 19.) (4.) A creditor is bound to accept a solvent surety ; and if he refuses one who is able to answer for the debt, with the object of defaming him, he commits an injuria. (D. 2, 8, 5, 1). (5.) To apprehend a person as a fugitive slave, or to bring an action to claim a person as a slave, knowing him to be free, is an injuria. (D. 47, 10, 12 ; D. 47, 10, 22.) (6.) He that flees for refuge to the statues or images of the emperors, to make it appear falsely that another has unlawfully imprisoned him, commits an injuria. (D. 47, 10.) 5. To enter a man's house against his -will, even to serve a summons, was regarded as an invasion of his privacy, (D. 47, 10, 23 ; D. 47, 10, 15, 5.) The iex' Cornelia (B.C. 8i), too, speaks of injuriae, and has brought in a special actio injuriaruin. This action lies when a man alleges that he has been beaten or scourged, or that his house has been entered by force. And by " house " in this case is understood his own house in which he dwells, or a hired house, or one in which he lives rent-free or as a guest. (J. 4, 4, 8.) In one sense this offence can hardly be considered as directed against the person of the occupier, but it was against his dignity ; for the majesty of a Roman citizen was supposed to extend beyond his strict personality to his immediate belong- ings, and even to his clothes. (D. 47, 10, 9, pr.) Directarii, who sneak into a house to steal, were guilty of a criminal offence. (Paul, Sent. 5, 4, 8.) 6. Attempts directed against the chastity of boys and women constitute injuriae. And it is an injuria, to keep following about a respectable woman, or a youth still wearing the praetexta, or a young girl, or to attempt any one's chastity. And clearly there are many other forms of injuria. (J. 4, 4, i ; G. 3, 220.) This offence consisted in persistently following them about, as such constant pur- suit was in itseK a reflection on their character. (D. 47, 10, 15, 22.) 150 PERSONAL RIGHTS. The praetexta was worn till the age of puberty. The use of obscene language is an injuria, although not successfully accomplishing the immoral intention. (D. 47, 10, 16, 21.) To accost {appellare) and adiireSB a respectable woman in the dress of a, matron was an injuria if the object were to conquer her chastity. But a respectable woman, if dressed as a slave or as a prostitute, had no remedy if she were so accosted. (D. 47, 10, 15, 15.) 7. It is the duty of every one to abstain from vexatiously setting in motion against another the machinery of the law. (D. 47, 10, 13, 3.) 8. Another case is this :— If at a spot where men commonly pass any- thing is kept so placed or hung that it might, if it fell, do harm to some one. For this there is a fixed penalty of ten aurei. (J. 4, 5, i.) In this case the penalty is exacted although no one is hurt (D. 9, 3, 5, 11) ; it was a measure of police for the safety of the streets. (D. 9, 3, 1.) This injurj- is called a quasi delict (quasi ex maleficio). This means nothing, however, except that it is a late addition to the roll of delicts, made not by any statute, but by the judicial authority of the Praetor, Second, What Circumstances made the Infliction op Pain OR Hurt an injuria f In its general sense, injuria means an unlawful act {quod non jure fit). In a special sense, it is used to mean sometimes an affront {contumelia, from contemno, in Greek yfipic) ; sometimes a wrong {culpa, in Greek ahrAriiJ^a.) — and this is the sense of damnum injuria in the lex Aquilias and sometimes unfairness or injustice (in Greek dSizia), for when a deci- sion is wrongfully given {non jure) against a man by the Praetor or judex, that man is said to suifer an injuria. (J. 4, 4, pr.) Of the four meanings here given to injuria, only one is applic- able to the present case. Generally, it may be said that an injury is the intentional and illegal infliction of pain or hurt. To constitute a violation of a freeman's rights to his own person, three elements chiefly must concur. 1. The violation must be intentional ; mere negligence does not give rise to iiijuria. It is not, however, necessary that the wrong-doer should know whom he hurts, provided he has a general intention to hurt some one. (D. 47, 10, 3, 2.) A strikes B in joke or in a sparring-match. As A has no intention to injure B, A does not commit any injuria. (I). 47, 10, 3, 3.) An astrologer or soothsayer, a sincere believer in his art, says a man is a thief who is not ; he has uttered a slander, but he has not committed any injwxa, for he is him- self in error. (I). 47, 10, 15, 13. SELF-DEFENCE. I5I A strikes B, believing him to be liis slave, and therefore considering himself as exercising hi) just right. A does not commit any injuria, although it should turn out that in reality B is free. (D. 47, 10, 3, 4.) A man intending to hit his slave, misses his aim, and accidentally hits a freeman standing by ; there is no injuria. (D. 47, 10, 4.) 2. The act must be illegal. Every infliction of pain is not an injury, bnt only such as the law forbids. Pains inflicted by the law itself were not an infraction of the rights of personality. (D. 47, 10, 13, 1.) Hence a magistrate could not be compelled to give compensation for such losses as he caused in the course of administering justice, provided he did not intentionally abuse his authority. (D. 47, 10, 33.) Teachers also, and others set over the young, were permitted to chastise those committed to their care, provided they did not employ undue severity. (D. 9, 2, 6.) The powers of masters over slaves, fathers over children, husbands over wives, in this respect, will be ex- amined more fully hereafter. But the most usual case in which violence was permitted was in self-defence. An attack upon me releases me from the duty of respecting the person that assaults me. It is a general principle of law to permit men to repel force by force, or to use force in defence of a right. (D. 1, 1, 3 ; D. 9, 2, 4, pr.; D. 4, 2, 12, 1.) Within what limits, on what occasions, is it lawful in self- defence to hurt, or even to kill another? The first broad dis- tinction is between a wrong already completed, and one in process of consummation or immediately impending. When the wrong is consummated, when the mischief is done, it is never lawful to resort to force ; the peaceful remedy of an action or criminal accusation can alone be employed. But if the invasion of my right or the attack on my person is not completed, as a general rule force may be used in defence. (D. 43, 16, 3, 7 ; D. 43, 16, 3, 9.) A shopkeeper placed a lamp in a lane by night, and a passer-by stole it ; the shop- keeper pursued and caught the thief. The thief thereupon began to strike the shop- keeper, to make him let go, and the shopkeeper in the iight scratched out his eye. The shopkeeper was in this instance justiiied, but he would not, if the thief had not begun the fight, nor if he had scratched out the thief's eye merely from irritation at the t.heft. (D. 9, 2, 52, 1.) A second point is whether force could be used in defence of property as well as of personal safety. As regards personal safety, any amount offeree was justifiable, if it was reasonably necessary. A man put in fear of hia life, could with impunity 152 PERSONAL RIGHTS. kill his assailant ; but if he could have caught the man,^ and there was no necessity for killing him, he was not justified. (D. 9, 2, 5, pr. ; C. 9, 16, 2 ; C. 9, 16, 3.) In defence of property lees latitude was given. To kill wrongfully [injuria) is to kill when you have no right to. There- fore he that kills a robber does not come under the lex Aquilia, especially if there was no other way in which he could escape the danger. (J. 4, 3, 2.) According to the law of the XII Tables, it was lawful to kill the nocturnal thief, but not a thief during the day, unless he was provided with deadly weapons. The Aquilian law is understood to have imposed a restriction on this somewhat dangerous power, by admitting tlie justification only when the sufferer had called lustily for help. (D. 9, 2, 4, 1.) In later times, the latitude given by the XII Tables seems to have been taken away. Ulpian says (D. 48, 8, 9) that even in the case of the nocturnal thief, killing him is to be justified only if the owner of the property could not have spared his Kfe with- out peril to himself Thus, in effect, the extreme step of killing an intending thief was allowed only when the life of the person assailed was in peril, as well as his property. Any minor degree of force was, however, justifiable, if necessary for the defence of one's property. 3. The injury must be inflicted without the consent of the person that suffers the injury."^ But when one wrong affects two persons, one of whom alone consents, such consent does not take away the remedy of the other. Thus a slave may willingly be led to risk his money at games of chance, but his master may still suffer an injury, and have an action against the person who through the slave has injured him. (D. 47, 10, 26.) Perhaps the same idea led to the rule, that if a pei-son suffer- ing an injury showed at the time no indignation, he was considered to forgive the wrongdoer, and to forego all rights to damages or penalties for the wrong. The right to sue is lost if you pretend not to be hurt. And therefore if you overlooked an injuria — that is, at the moment you suffered it gave it no further heed — you cannot afterwards change your mind, and revive the injuria you have once let rest. (J. 4, 4, 12.) 1 NvUa injuria est quae in volentem fiat. (D. 47, 10, 1, 5.) INVESTITIVE FACTS. I 53 Investitive Facts. From the nature of the case, rights in rem to one's person are not created by any special investitive facts, nor can they be ex- tinguished by any divestitive facts. The duties corresponding to the rights are nearly universal ; they are duties OAving by all men to all men. The rights are indelible, and they belong to one simply as a member of civil society. Broadly, but not quite accurately, it may be said that rights in rem belong to every man against every man. The exceptions fall into three classes — (1) Persons that have not rights in rem; (2) Persons that are exempt from the corresponding duties; and (3) Substituted or vicarious responsibility. I. Persons that have not rights in rem in respect of their own personality. Slaves were incapable of suffering an injuria. Persons sub- ject to manus, patria potestas, mancipium could suffer injuria, but, as a rule, only the persons in whose power they were could sue for the wrong done. (See under Slavery, Potestas, etc.) II. Persons against whom rights in rem are not available. The only persons that were not punishable for their wrongful acts were those presumed to be incapable of having a wrongful intention. Inasmuch as intention is of the essence of injuria, it follows that those who are destitute of understanding, and are unable to comprehend the consequences of their acts, should be exempt from the penalties of the offence. Hence madmen (furiosi) and children under seven years of age (infantia: proximi) were considered incapable of committing an injuria.^ (D. 50, 17, 111, pr.) III. Persons that are liable for wrongs done by others, — vicarious responsibility. I. If you have a lodging, whether your own, or hired, or occupied rent- free, and from that lodging anything is thrown down or poured out so as to harm some one, then you incur an obligatio quasi ex maleficio; — quasi ex maleficio, and not ex maleficio, for often the fault is another's, either a slave's or a child's. (J. 4, 5. i-) If a filiusfamilias lives apart from his father, and if from his lodging anything is thrown down or poured out, or if he has anything so set or hung that its fall would be dangerous, in this case Julian was of opinion that Cum enim injwria ex affectu facientis consistat. (D. 47, 10, 3, 1.) 154 PERSONAL RIGHTS. against the father there is no action, but only against \he: fiUusfainilias himself— just as in the case oi a. filiusfamilias that when judge has given an unlawful judgment {gut litem suam fecerif). (J. 4, 5; 2.) In like manner, when a slave inhabited a house separate from his master, and anything was thrown down or poured out, to the damage of passers-by, but not by him, the master was not responsible. The slave, if he were blameworthy, might, how- ever, be punished. (D. 9, 3, 1, 8.) 2. Not only the doer of the wrong {injuria) is liable to an actio injuri- arum^ but he too whose malicious deeds or schemes have led to its being done ; not only he that strikes a man on the face with his fist, but he that caused him to be so struck. (J. 4, 4, 11.) The principal is responsible for the wrongs done by the agent whom he has engaged (mandatum) or hired (conductio) for the purpose. (D. 47, 10, 11, 3 ; D. 47, 10, 11, 4.) So a person that has induced another to do a wrong, which, but for such persuasion, he would not have done, is responsible. (D. 47, 10, 11, 6.) But the person acting in consequence of such persuasion or bargain is also responsible. (C. 9, 21, 5.) 3. The responsibility of masters for slaves, fathers for chil- dren, etc., will be discussed under these respective heads, Slavery, Polestas, etc. Remedies. A. Negligence — The remedy is a utilis actio Legis Aquiliae. (D. 9, 2, lb, pr. ; D. 17, 2, 52, 16.) An account of this statute will be found under the topic of Ownership. B. Intentional Harm — Actio Injuriarum. 1. The measure of compensation in simple injury (i.e., non atrox). (1.) According to the law of the XII Tables. The penalty for injuria was fixed by the XII Tables as follows :— For a limb disabled, to suffer the same in turn {talio) ; for a bone broken or crushed, in the case of a freeman, 300 asses, in the case of a slave, 1 50 asses ; in all other cases, 25 asses. And in the great poverty of those times these money penalties seemed perfectly adequate. (G. 3, 223, and more shortly J. 4, 4, 7.) At the time of the XII Tables, talio seems to have been used as u, means of compelling the wrongdoer to offer compensation (si membrum rupsit, ni cum eo pacit, talio esto). The next step was to compel the plaintiff, if he were unreasonable in his demands, to submit the question of compensation to a judex, (2.) Modification of the penalty by the Praetors. ACTIONS. 155 But the rule of law now in use is different, for the Praetor allows the sufferer to claim a specific sum ; and the judge condemns the wrongdoer to pay any sum not exceeding this, to be fixed at his discretion. (J. 4, 4, 7 ; G. 3, 224.) The penalty for tnjiiria introduced by the XII Tables has fallen into disuse. That introduced by the Praetors, and therefore called honoraria, is in daily use in the courts. For according to a man's rank and respectability the estimate of the harm done by an injuria rises or falls. And the same gradation is observed, and properly, even in the case of slaves ; for there is one estimate in the case of a slave that is manager, another in the case of a slave in a position of some trust, and a third in the case of an utterly worth- less slave, — one, for instance, that works in chains. (J. 4, 4, 7.) When anything has been thrown down or poured out from a lodging, the amount for which the actio injuriarum may be brought is fixed at twice the damage done. For killing a freeman the penalty is fixed at 50 aurei. But if he lives, and it is alleged that he has suffered harm, an action may be brought for a fair sum to be fixed at the discretion of the judge. And the judge ought to reckon the doctor's fees and the other outlay required for the cure, as well as the wages of labour that the sufferer has lost or will lose through being disabled. (J. 4, 5, I.) 2. Compensation for aggravated injury (atrocc injuria). (1.) When is an injury aggravated? An injuria is held to be aggravated by considerations — (i) Of the nature of the act, as when a man is wounded, or scourged, or beaten with sticks ; or (2) Of the place, as when he is injured in the theatre or in the forum or in sight of the Prastor ; or (3) Of the person, as when it is a magistrate that suffers the injuria, or when senators are injured by a person of low degree, or a parent by his children, or a patron by his freedmen. For an injury to a senator, a parent, or a patron, is held to differ widely from an injury done to a stranger or to a person of low degree. (4) Sometimes, too, the position of a wound aggravates an injuria, when, for instance, a man is struck in the eye. And then it matters little whether it is a paterfaynilias or ■Si filiusfamilias that is injured, for in both cases alike the injury is held to be aggravated. (J. 4, 4, 9 J G. 3, 225.) (2.) Compensation. An aggravated injuria is usually assessed by the Praetor. And when once he has fixed the amount in which the defendant is to give security to appear, the plaintiff rates the damage at the same sum in hS.s formula ; and the judge, although he can award a less sum, yet often out of deference to the Prsetor does not venture on a reduction. (G. 3, 224.) (3. ) A person condemned for iiyuria, suffered infamy, as also the person at whose instigation it was done. (Paul, Sent. 5, 4, 20.) (4.) In cases where the lex Cornelia applied, involving an injury to reputation, the defendant was allowed to take an oath and clear the plaintiEE's character, thereby escaping punishment. (D. 47, 10, 5, 8.) (5.) The actio injuriarum. being penal, could not be brought against the heirs of the wroogdoer ; and also, herein differing from other penal actions, it could not be brought by the heii'8 of the sufferer. (D. 47, 10, 13, pr.) 156 PERSONAL RIGHTS. (6.) Prescription. When the remedy was given by the edict of the Praetor, no action could be brought after one year. But when it was given by the lex Comdia, it could be brought at any time ; until at a subsequent period, liiso all personal actions, it was limited to thirty years. (7.) Concurrence of criminal jurisdiction. Lastly, it must be observed that for injuria the sufferer may elect to bring either a criminal prosecution or a civil action. If he elects to bring a civil action, the damages are assessed as has been said, and they form the penalty imposed. But if a criminal prosecution, it is the duty of the judge to inflict on the accused a penalty extra ordinem. Note, however, that a constitu- tion by Zeno brought in the rule that viri illustres, and those above them, may either bring or defend an actio injuriarum (if brought criminally) through their procurators. Such is its tenor, as may be seen more clearly by referring to it. (J. 4, 4, 10.) Viri iUusfrcs. — The officials under the Empire formed a hierarchy, arranged in different ranks, the highest of which was the viri illustres. This class embraced the Praetorian Prefects, the Urban Prefects, the Masters of the Horse {rmigistri equitum) and certain others of the highest officials in the imperial household. As to criminal prosecutions for injuria^ see Appendix on Criminal Lp.w, giectinlr Bibision. RIGHTS IN REM TO OTHER HUMAN BEINGS. L— SLAVERY. Definition. I. — Relation op Slave to his Master. Slavery is an institution of the Jus Gentium, by which, contrary to nature, a man becomes the property of a master. (J. I, 3, 2.) Freedom, in virtue of which men are called free, is the natural right {facultas) each man has of doing what he pleases, except in so far as he is hindered by force or law. (J. i, 3, i.) According to this definition, a master is the owner of his slave. But an examination of the law shows that although the nearest legal relation to that between master and slave is ownership, yet in several important respects the position of a slave was not quite so bad. This will appear from a considera- tion of the elements of property, as commonly described, — the right of exclusive use ; the right of destroying ; and the right of alienating. 1. Every master had a right to the use of his slave, to all the services he was capable of rendering, and to everything that the slave, if free, would have acquired for himself. (G. 1, 52.) Conversely, the slave himself had no right of property. It will be seen afterwards how far, under the name of peculium, a sort of customary ownership was allowed to slaves, and to what extent it was recognised by law. 2. The right of destroying. Slaves, therefore, are in the power of their masters ; and this by the Jus Gentium. For among all peoples alike, as may be observed, masters have over slaves the power of life and death, and all a slave's gains are the master's gains. (J. i, 8, i ; G. i, 52.) 158 SLAVERY. Until the Empire, no legal check seems to have been placed on this terrible power. During the whole period of the Re- public, the only security of the slave was the conscience of his master and the influence of general opinion. The history of the Empire from Claudius to Constantine is marked by suc- cessive efforts to throw around the slave the shield of law. According to Suetonius (Life of Claudius, C. 25), the Emperor Claudius was the first to declare the killing of a slave by his master to be murder. This was indisputably the law under Antoninus Pins. Claudius is also alleged to have given another lesson of humanity, by ordering a slave to become free who had been exposed without assistance in illness, but had re- covered. The lem Petronia (A.D. 61) took away from masters the power of compelling their slaves to fight with wild beasts, and enacted that this species of cruelty should be adopted only as a public punishment for the misconduct of the slave. (D. 48, 8, 11, 2 ; D. 18, 1, 42.) The sale of a slave for such a purpose subjected both buyer and seller to punishment. (D. 48, 8, 11, 1.) Hadrian (Spartianus in Hadrian, 0. 18) abo- lished the private prisons (ergastula) in which masters were accustomed to immure their slaves. He banished a woman for five years who had been guilty of great cruelty towards her female slaves. (Mos. et Rom. Legum Collat. 3, 3, 4.) He also made castration of a slave as well as of a freeman a capital crime, even when the act was done with the consent of the slave. The age of Antoninus Pius is also marked by a distinct advance in humanity. But now no subject of ours is allowed to treat his slaves with a cruelty that is legally groundless and excessive ; for by a constitution of the late Emperor Pius Antoninus, he that without cause kills his own slave, is to be punished equally with him that kills the slave of another. And even too great severity on the part of masters is checked by a constitution of the same Emperor. For, when consulted by certain provincial governors in regard to slaves that flee for refuge to some sacred building, or to the Emperor's statues, he gave command that, if the masters' cruelty seemed beyond endur- ance, they should be forced to sell the slaves on favourable terms, and have the purchase-money given them : — a righteous decision ; for it is for the public good that no man abuse his property. [For we ought not to abuse our rights ; and on this very principle spendthrifts are interdicted from man- aging their own possessions.] And the words of that rescript sent out to ^lius Marcianus are these : — " The masters' power over their own slaves ought to remain unimpaired ; nor ought any man to lose his lawful rights. But it is the masters' interest that relief be not denied to the victims of cruelty or starvation, or of unbearable ill-usage {injuria) : for they implore it GROWTH OF HUMANITY. 1 59 on good grounds. Therefore look into the complaints of the slaves of Julius Sabinus' household that have fled for refuge to the Emperors' statues ; and if you find that they have been too harshly treated, or subjected to shameful ill-usage, order them to be sold, with this reservation, that they are not again to fall under the power of their present master. And let Sabinus know that, if he evades this constitution of mine, his misconduct shall be severely visited." (J. I, 8, 2 ; G. I, 53.) Another i-escript of the same emperor deserves notice ; it is addressed to one Alfius Jidius (Mos. et Rom. Legum CoUat. 3, 3, 5-6), and is related by Ulpian. It provides that, if a master treat his slave with great severity, or exact oppressive services, or neglect to give him a sufficiency of food, he shall be com- pelled to sell the slave. Finally, Constantine attempted to mark off the narrow line that separated homicide from death through flogging. The rule is clearly stated by Paul (Mos. et Rom. Legum Collat. 33, 2, 1). If the slave dies from a flogging, the master is not guilty of homicide, unless he intended to kill the slave. The use of a deadly weapon was conclusive evidence of such intention. (C. 9, 41, 1 ; C. Th. 9, 12, 2.) 3. The right of alienating the slave. A slave could be sold, pledged, bequeathed, or dealt with exactly like any other pro- perty. It is interesting, however, to observe that regard was had, in selling lots of slaves, to the claims of relationship. Seneca tells us that, in public auctions, brother ought not to be separated from brother. (Seneca, Controv. 9, 3.) When a partition of property took place, Constantine introduced the humane prin- ciple of keeping together children and parents, brothers and sisters, wives and husbands. (C. 3, 38, 11 ; C. Th. 2, 25, 1.) The same principle was observed in the partition of inherit- ances. In another class of cases, similar deference w^as paid to natural feehng. Thus, if a family of slaves were sold, consisting of father, mother, and children, and some of them were suffering from disease, such as gave the buyer the right to return them, the buyer was allowed a choice of keeping all, or sending all back, but he was not allowed to break up the family. (D. 21, 1,35; D. 21, 1,39; D. 32, 1,41,2.) 4. It was a consequence of the relation between master and slave that neither could bring against the other any civil action, even for delicts. If a slave wrongs his master, no action arises. For between a master and a person in his power no obligation can arise. And therefore, also, if the slave passes under another's power, or is set free, still neither against him nor against his new master, in whose power he now is, can any action 1 60 SLAVERY. be brought. Whence it follows, that if another man's slave wrongs you, and afterwards comes to be under your power, the action falls through ; for under the changed circumstances it cannot be maintained. And therefore, even though he passes out of your power, you cannot bring an action ; just as a slave that has been wronged by his master cannot brmg an action, not even when set free or transferred to another, agamst his master. (J. 4, 8, 6.) II. — A Slave was a Person. Mucb, and somewhat unprofitable, diecussion has taken place as to whether a slave was a person. So far as the language of the Roman law is any authority, there can be but one answer to the question. (D. 1, 6, 1, pr.-l.) Both Gaius and Justinian include slaves among persons {de personis), and that is conclusive as to the Roman use of the word. (J. 1, 8, pr. ; G. 1, 17 ; 1, 48-52.) But apart even from usage, the question cannot be called per- plexing. If we throw out of account the case of corporate iDodies, which are called persons in a figurative sense, there can, iu law, be only three meanings of the word " person." A person may be defined — (1) as simply a human being; or (2) as a human being upon whom are imposed legal duties ; or (3) as a human being who enjoys rights. In the second acceptation of the word, a slave was a person in the sphere of the criminal law, although scarcely so in the civil law. In the third mean- ing, as has been pointed out, a slave had a right to protection from harm, and so was a person even within the sphere of the civil law. The language of the jurisconsults requires us to enlarge the word person so as to include slaves ; the distinction they drew was, a slave had no caput. (J. 1, 16, 4.) They meant that he had not freedom, citizenship, nor any family rights ; all which constitute the chief heads (caput) of status, (Austin, Jurisp. 364, 740.) III. — Origin of Slavery. Slaves (servi) are so called, because victorious generals order the prisoners to be sold, and so save them alive {servare) instead of killing them. They are called mancipia also, because they are taken from the enemy by the strong hand {manu). (J. i. 3. 3.) The theory expressed by the Roman jurists, and taken from their writings into the Institutes, assumes a historical fact as an explanation of a social anomaly. Capture in war was a recog- nised mode of acquiring slaves, and this was projected into the past as the sole and exclusive origin of the inequality of slavery. ORIGIN OF SLAVERY. l6l Whether they were justified in doing so has been disputed (Maine's Ancient Law, p. 163) ; but the main interest attaching to their explanation is the light that it throws upon their notion of the rights of belligerents. In modern times, the principle has been accepted by all civilised nations, that the employment of force against an enemy is no further justified than is required by his resistance ; but in ancient times the state of war seems to have been regarded as destroying all moral ties, and leaving the vanquished entirely at the mercy of the conqueror. If the victor might without blame take the life of his prisoner, much more might he take his liberty. Slavery was thus held up as a mitigation of the horrors of war. The contrast drawn between the law of nature and the law of nations is nowhere so sharply defined as in regard to slavery. In Greece, the distinction between natural law and law created by men, was one of the favourite subjects of disputation from the Sophists to Aristotle. The Stoics took up the law oi nature as one of the forms of expressing their moral ideal. From them the conception found its way into Human law, and thus Ulpian^ assigns to natural law the doctrine of the equality of all men. In several instances the jurists imdoubtedly looked on the law of nations as containing the rules that nature pre- scribes ; but in the present case, Florentine opposes the dictate of equality, ascribed to natural law, to the universal practice of all the nations with which the Romans had come in contact. The justification of slavery that satisfied the classical jurists and Justinian, was known to Aristotle, without obtaining his approbation. To him the performance of the manual labour of a State by slaves seemed as much in the course of nature, as the use of hired labour and the separation of capital and labour appear to a modern economist. He acknowledged, indeed, that the relation of master and slave had not been all that could be desired, and that no one had been able to hit the happy medium in treating his slaves so as to avoid tyranny while yet securing obedience ; but he pointed out that there must be a class of persons to do manual labour, whose bodies were fit for the purpose, and whose minds were fit for nothing better ; and that it was no less an advantage to themselves than to their masters that they should be under government. Hence a typical family resolved itself, according to Aristotle's views, into three ' Quod ad jus naturale attinct omnes homines aequales sunt. (D, 50, 17, 32.) L l62 SLAVERY. elements— tlie herlle or worlnng, the nuptial, and the paternal or governing. To employ an analogy of a kind that did not seem to Aristotle unworthy of being regarded as an argument, the master ought to govern the slave just as the soul ought to govern the body. This theory, implying as it did a natural iitness of a slave for the servile condition, was of a more con- servative tendency than the hypothesis of the Roman juris- consults, and gave no stimulus to the process of manumission. IV. — Serfdom. In the condition of slaves there are no degrees, but among freemen many. For they are either born free {ingenui), or made free (liberlini). I. 3, 5-) The Institutes, quoting Marcian (D. 1, 5, 5, pr.), affirm that tnere are no degrees of slavery. But the statement needs modi- fication. Convicts were called slaves {servi poenae), without in every respect being treated as such. A more important class is passed over in silence in the Institutes, as also in the Digest, but is revealed to us in the Code — the coloni inquilini, and adscrijjtitii or censiti. These were serfs, enjoying a certain amount of personal freedom, but fixed to the soil, compelled to culti- vate it, and inseparable from it. As a link between the slavery of the ancient world and the modern sj'stem of free contract, the colonists possess a high interest, although, unfortunately, our information regarding their origin is very scanty. The first notice of them in the Code is in some constitutions of the Emperor Constantine. He made an enactment for the recovery of fugitive colonists A.D. 332 (C. Th. 5, 9, 1), and imposed a fine on those who knowingly harboured any of them. As time rolled on, new constitutions were issued, the principal of which are to be found in the Code. (C. 11, 47 ; C. 11, 49 ; C. 11, 50; C. 11. 51; C. 11, 52; C. 11, 63.) Those serfs were distinguished from slaves, and classed as free-born {ingenui) ; but they could not remove from the place on which they were born, nor could they be sold apart from the land. (C. Th. 13, 10, 3.) They paid a rent to their owner, generally in kind. (C. 11, 47, 5.) The amount of the rent was fixed by custom. (C. 11, 49, 1.) A distinction existed among those serfs. Those called free colonists, coloni liberi, tributarii, or inquilini (C. 11, 47, 12 ; C. 11, 47, 18), had rights of property as against the owner of the land, and were subject to few or no obligations beyond payment of the customai-y rent. (C. 11 SERFDOM. 163 48, 1.) The other class, adscriptitii or censiti, had no property, and all their acquisitions were treated as peculium, the owner- ship of which belonged to their masters. A constitution of Anastasius (C. 11, 47, 18) throws some light on the origin of this institution. It appears that a person who remained as a colonist for thirty years retained his freedom, but was bound to the land. (C. 11, 47, 23, 1.) The usual mode, however, ia which the state of serfdom was created, was birth. There were some doubts as to the exact rules to be followed, and Justinian declared (C. 11, 47, 21) that the rules determining the status of slavery should apply. If the mother was a colonist, inquilina or adscriptitia, the child followed her condition, whatever the status of the father. In like manner, if the mother was free the child was free, although the father were an adscriptitius or inquilinus. In this last case the father might be whipped by public authority and taken away from the woman, but still the children were free. Rights and Duties. A. Rights of the master. As against third persons, the master's rights may be summed up under two heads ; a right (1) to the exclusive possession, and (2) to the exclusive use of the slave. I. Offences against possession. A slave was ranked as an object of moveable property, and might therefore be the object of theft or robbery. These offences will be more conveniently discussed under the law of ownership; but at this stage an offence peculiar to the law of slavery may be noticed — har- bouring a runaway slave {refugium, abscondendi causa, servo praestare). (D. 11, 3, 1, 2.) It was an offence, exposing the wrongdoer to a penalty of double the value of the slave, to give refuge to a runaway slave, unless the motive was simple humanity for the slave, or some other adequate reason. (D. 11, 3, 5, pr.) In addition to this provision under an edict of the Prsetor, a Senatus Con- sultum imposed a fine, but gave pardon to those who, within twenty days, gave up the slave to the master or a magistrate. (D. 11, 4, 1, 1.) II. Offences against the usefulness of a slave. Here again a slave, like other moveable property, was susceptible of damage ; but in two ways a slave might be the object of a somewhat different wrong. 164 SLAVERY. 1. Oormpting a slave. This is the offence of deliberately persuading a slave to do something that impairs his value. The Prastor says, " If it be alleged that a man has harboured a slave, male or female, belonging to another, or that he has with wrongful intent persuaded the slave to do anything to change him or her for the worse, against that man I will give a remedy for double the loss in the case."^ It is, therefore, an offence to solicit a slave to do or conceive any mischief, — as to commit an injuria, or theft, or to run away, or to corrupt another man's slave, or to waste his time going to public shows, or to be seditious, or to interfere with his master's accounts (D. 11, 3, 1, 5), or to be disrespectful (D. 11, 3, 15), or contemptuous towards his master. (D. 11, 3, 2.) 2. Injuria done to a slave. No injuria is regarded as an injuria to the slave himself, but always as an iitjuria to the master through the slave. Nor does it stand on the same footing as an injuria done to us through our children and wives. For aggrav ited offences only are recognised, — open affronts to the master. If, for instance, one scourges a stranger's slave, for this case anaction (^formula) is provided. But if he only reviles the slave in public {cojiviciuvi), or strikes him with his fist, no action is open to the master [no formula is provided, nor is one readily granted]. (J. 4, 4, 3 ; G. 3, 222.) An injuria is pre-erainentlj' an affront to the dignity of the person ; but a slave is so abject a creature, he has so little of the dignity of a freeman, that there is nothing to take away, nothing to diminish, nothing susceptible of contumely or injuria. Such is the starting point of the Koman law. To a slave, as such, no injuria could be done. In two ways harm might be done to a slave. He might be lamed or lose his eye, and so be less useful as a labourer ; in other words, he might suffer the same kind of damage as any other species of property — a loss of utility or value. But a different kind of injury might be perpetrated. It was a point of honour with masters to reserve all ill-usage ot their slaves to themselves, and to punish those who assaulted or insulted their slaves. The slave might, therefore, be viewed as a mechanical medium through which an insult could be transmitted to his master. In short, an injury to the slave 1 Ait Prcetor. Qui servum servamve alienum, alienamve recepisse, persuasisscve quid ei dicetur dolo malo quo eum, eamve dcleriorem faceret ; in cum quanti ea res erit, in duplum judicium dabo, (D. 11, 3, 1, pr.) INJURIA TO SLAVES. 1 65 might be intended as, and therefore might be, an injury to the master. Stiohus, a slave belonging to Sempronius, represents himself as a slave of Titius, or as a freeman, and is struck by Seius. Mela {temp. Tiberius) says, that inasmuch aa Seius did not know that Stiohua was the slave of Sempronius, he could not have meant to insult Sempronius ; and if Seius would not have struck Stichus had he known who his master really was, he cannot be sued for injuria. (D. 47, 10, 15, 45.) Such -was the position of a slave according to the rules of the civil law ; but the Prjetor introduced a more liberal legis- lation. He gave an action to the master, when his slave had been whipped or subjected to torture without his consent by another person, even when the wrongdoer did not intend to insult the master. When the injury was trifling, as a mere verbal insult, the master had no action, imless Jay leave of the Praetor, or vinless the insult were meant for him. (D. 47, 10, 15, 35.) ' Ulpian states the case thus : If a slave is struck lightly or only abused, the Prsetor will refuse to give an action to the master. If, however, his good name is seriously hm-t by some act or writing, the Prsetor will compare the position of the slave with the nature and extent of the injury, and decide accordin^^ly to give or refuse an action. Thus it makes a material difference whether the slave is in a position of trust or confidence, as an overseer (ordinarius) or steward (dispensator), or whether he is a household drudge {mf.diastinus), or of bad character. (D. 47, 10, 15, 44.) This was the furthest limit of humanity that the Roman law reached. For severe injuries, the master always, the slave never, had a remedy ; for trifling insults, the master had an action only when the slave was made the medium of an insult to himself. These principles will serve to explain the following passages from the Institutes : — If an injuria is done to a slave owned in common, it is fair to assess the damage, not according to the share each owns, but according to the posi- tion {persona) of the masters : for the injuria is done to them personally. (J- 4, 4, 4-) This rule, which proceeds upon the distinction between contumelious injury just explained, and damage diminishing the usefulness of property, is opposed to a state- ment by Paul, citing Pedius, in the Digest. ,(D, 47, 10, 16.) '(D. 47, 10, 15, 34.) Prtetor ait: Quiservum alienum adversus bonos mores verher- avisse deve eo, mjussu, domini, quaestionem Juiltuisse dicetur, causa cognita, judicium dabo. 1 66 SLAVERY. But if Titius has the usufruct in the slave, Maevius the ownership, then the injuria is looked on as done to Maevius. (J. 4, 4, 5.) The distinction between usufruct and ownership will be explained fully hereafter ; for the present it is enough to observe that a person who has a usufruct has for a limited time (generally for his life), all, or nearly all, the rights that the owner has to the use and services of the slave. But if an injuria is done to a freeman while in good faith in your service, no action will be granted you, but he will be allowed to proceed in his own name : unless, indeed, it was to affront you that he was beaten, for then to you also an actio injuriarum is open. And the same rule applies to another man's slave while, in good faith, in your service : for whenever an injuria is done to him in order to affront you. then you are allowed an actio injuriarum. (J. 4, 4, 6.) This passage, taken from Ulpian (D. 47, 10, 15, 48), omits the final statement that the same rule applies to the case of usufruct. When a slave held in usufruct, or while really belonging to another, believed by the possessor of the slave to be his own >fiarM fide), was made the channel oi contumely to the person to whom, for the time, his services were due, the action was brought by the person injured, not by the owner. But if the injury to the slave was more to him than to the master, then an action could be brought by the true owner, and not by the hona fide possessor or the usufructuary. B. Duty of master in respect of wrongs done by bis slave. A wrong done to a slave was regarded solely as a wrong to the master; in like manner, a wrong done hy a slave was con- sidered only as a wrong done by the master. Within the sphere of criminal law, the responsibility of the slave was recognised ; but in the civil law his personality in respect of third parties was submerged in that of his master. The misdeeds of [3. jiliusfajnilias] a slave, such as theft [bona vi rapta, damnuni\ or injuria, give rise to actiones nox-aUs. But in them the [father or] master [if he loses] is allowed to elect whether he will pay the damages assessed, or surrender the wrongdoer {noxae dedere). By noxa is meant the body that has done the harm {nocuit) ; that is, the slave. Noxia, again, is the misdeed itself — the furtiim for instance, the dam^ium, the rapina, the i?ijuria. With perfect reason, the surrender of the offending body was made full satisfaction. For it was unjust that the offender's wickedness should bring on the [parents or] masters any loss beyond that of the offending bodies. (J. 4, 8, pr.-i ; G. 4, 75.) The statement of the text applies when the wrongful act was done spontaneously by the slave, and had not received the sanction of the master. When a slave, with the knowledge of his master, kills another slave, the master must pay the whole damage, as if he had done the wrong himself, and he cannot escape by merely surrendering the slave. (D. 9, 4, 2, pr. ;,U. 9, 2, 44, 1.) The master is directly responsible, even when he NOXAL ACTIONS. 1 67 does not enooiirage the f?lave, if he knows what he is doing, and has the power to prevent hini. (D. 9, 4, 4, pr. ; D. 50, 17, 50 ; D. 9, 2, 45, pr.) (1.) For what wrongful acts of the slave is the master re- sponsible? His responsibility extends not merely to the delicts enumerated in the Institutes (theft, robbery, damage, injury), but also to other acts of force, fraud, or mischief. When a fraud not falling within the law of contract has been committed by a slave, the master can be sued, the slave being a noxa. (D. 4, 3, 9, 4.) The slave is also a noxa when he has corrupted another's slaves (D. 11, 3, 5, 3), or has theftuously cut down another's trees. (C. 3, 41, 2.) (2.) Limitation of the master's responsibility. If the master ceased to own the slave, he also ceased to be responsible. This was a consequence of the rule that the master could free himself by surrendering the slave. Hence the saying, the responsibility follows the slave: Noxa caput sequitur. Noxal surrender seems to be a relic of the ancient practice of surren- dering a wrongdoer to the injured party, who was thereby enabled to wreak his vengeance upon him. The corporate liability of the household, expressed in later times, by the per- sonal liability of the paterfamilias, might be got rid of by surrendering all claim to the protection of the wrongdoer. All noxales actiones follow the person {caput). For if [your son or] your slave has done a wrong {noxia, noxa), as long as he is in your power {potcstas), it is against you the action lies : or if he passes into another's power, then against that other. If he is set free [or becomes sui juris], the action must be brought against him directly, and there is no longer room for a surrender {noxae deditio). And conversely, a direct action may be changed into an actio noxalis. For if a free man does a wrong {noxia), and thereafter becomes your slave [if a paterfamilias does a wrong {noxa), and thereafter suffers himself to become your son by arrogatio, or is made your slave] — and this may happen in some cases, as we have laid down in the First Book — at once the action, hitherto direct, becomes a tioxaits actio against you. (J. 4, 8, 5 ; G. 4, 77-) Stichus, a slave of Maevius, commits a theft. Maevius sells him to Semproniiw. It is against Semproniiis that the remedy lies. (D. 9, 4, 7, 1.) Stichus corrupts another man's slave, and is abandoned by his master Titius. Titiua ceases to be responsible. (D. 9, 4, 38, 1.) Stichus, after running away from his master Titius, commits a robbery. So long as Titius does not recover possession of Stichus, he is not responsible. (D. 9, 4, 21, 3 ; Paul, Sent. 2, 31, 37.) Stichus, a slave of Sempronius, commits a theft, and, before any action is brought against his master, dies. Sempronius cannot be sued. (D. 9, 4, 42, 1.) Stichus has been pledged by Balbus with his creditor Titius, and, while held in 1.68 SLAVERY. pledge, insults Sempronius. Balbus the owner is responsible, not Titius the creditor. (D. 9, 4, 22, 1.) Maevius gives his slave Stichus on loan to Gains, and Stichus commits a theft. The remedy is against Maevius the owner, not against Caius the borrower. (D. 9, i, 22, pr.) According to the statement of the text, a slave might be sued after manumission for delicts committed by liim while a slave. But, except in case of crime, as murder, theft, piracy, he was exonerated when he acted under the orders of his master, for then he was only an agent of the master, who remained answer- able for the whole damage. (D. 44, 7, 20.) Stichus, in a brawl arising out of a lawsuit, assaults a person at the request of his master. Stichus is manumitted. The master may be sued as the instigator of the assault, but Stichus cannot. (D. 60, 17, 157 pr.) Stichus, after committing a robbery unknown to Maevius his master, prevails upon Maevius to manumit him. Stichus may now be sued, [noxa caput sequitur.] (C. 4, U, 4.) Stichus commits a theft, and his master Julius coming to learn it, manumits him in order to escape responsiljility. In this case the wronged party has a choice ; either Stichus may be sued or Julius, but not both. (1). 9, 4, 12 ; T>. 47, 2, 42, 1. But if Stichus offered to defend the action, the master (Julius) escaped. (D. 9, 4, 24.) Investitive Facts. A. Investitive Facts ascribed to the Law of Nations {jus gentium). I. The offspring of a female slave belong to her master. Ancilla is any female slave. Verna is any slave, male or female, born in the master's house. This rule is but a particular example of one of much wider application, governing the determination of Status, and which may be thus briefly stated : children born in wed- lock have the same status that the fither had at the moment of conception ; children born out of wedlock have the same status as their mother at the moment of birth ; but, in favour of liberty, a qualification was made, that if a mother was free at any moment between the conception and birth of the child, the child should be free. (Paul, Sent. 2, 24, 1-3 ; D. 1, 5, 19.) The decision, that if a female slave conceives by a Roman citizen, and is set free before childbirth, then the offspring is born free, is a dictate of natural reason. And so if the mother is free at the time of their birth, the children are free. Nor does it matter by whom the mother conceived them, even though she was then a slave. The status of children regularly {legitime) conceived is determined by the time of conception, of children irregularly {illegitime) conceived, by the time of birtli. (G. i, 89.) And with these rules the rule of the Jus Gentium agrees that the ofTspring BORN SLAVES. 1 69 of a slave-girl and a freeman is a slave, while the offspring of a free woman and a slave is free. (G. I, 82.) If the mother is free and the father a slave, the offspring is none the less free-born (inf^enuus) ; and so, too, if the mother is free, while from the loose- ness of her character there is uncertainty as to who is the father. It is enough that the mother is free at the time of the birth, although a slave when she conceived. On the other hand, if she is free when she conceives, and becomes a slave before childbirth, it is held that the offspring is born free, because the mother's misfortune ought not to harm a child still in the womb. Hence this question has been raised, — If a female slave, while pregnant, is set free, and again becomes a slave before childbirth, is the child a slave or free ? Marcellus is of opinion that it is born free, for it is enough for a child in the womb that the mother was free at any intervening time. And this is true. (J. i, 4, pr.) The same general rule was applied to determine whether a child was a Roman citizen or an alien {peregrinus). (See Appendix to Slavery.) II. Persons captured in war are made slaves. (J. 1, 3, 4.) The capture must, however, be in war between belligerents. The forcible seizure of freemen by brigands or pirates did not constitute a legal capture giving a lawful title to them as slaves. Such captives remained free in law. (D. 49, 15, 24; D.49, 15, 19, 2.) B. Investitive facts special to the Roman law (Jure Civili). I. A Roman citizen who evaded inscription on the census (and thereby his military duty) lost his liberty (Cicero pro Oaecina, 34). The quinquennial census was a republican insti- tution, which ceased under the Empire. (Ulp. Frag. 11, 11.) II. A thief taken in the act (/z/r manifesttcs) was by the law of the XII Tables punished capitally; For if free, he was scourged, and adjudged to the man from whom he had stolen. (G. 3, 189.) This cause of slavery was extinguished when the Prajtor substituted a penalty of fourfold the value of the thing stolen. III. A judgment creditor (by the XII Tables) could take his debtor as a slave if he were uuable to discharge his debt. (Aul. Gell. 2(), 1.) IV. The reduction of free women into slavery by the Senatus Consultum Claudianum. This enactment is said by Tacitus (Ann. 12, 53) to have been made in the reign of Claudius. It was abrogated by Justinian. (C. 7, 24, 1.) Under the Senatus Consultum Claudiajium there was a wretched mode of acquisition, per universitatem, viz., this : — When a free woman, in the frenzy of her passion for a slave, lost by that Senatus Consultum her very freedom, and with her freedom all her substance. But this we held unworthy 1 70 SLAVERY. of our age, and have therefore blotted it out of the laws of our state, and given it no place in our Digest. (J. 3, 12, i.) The reason assigned for this enactment by Theophilus was that such connections interfered with the work of the slave. The master of the slave could send to any free woman cohabiting with his slave, and require her, in the presence of seven witnesses, to withdraw herself from his society. If she refused, a second, and even a third, formal warning (denuntlatio) Avas to be given. If the woman persisted in the cohabition, the master could go before the Praetor or President of a Province (Paul, Sent. 21'^, 17), who, if satisfied of the facts as alleged, adjudged the woman to the master as his slave, with all her property. V. Certain convicts were regarded as slaves (servi poenae). Those condemned to fight with wild beasts were considered as slaves (D. 48, 19, 8, 11) ; but this punishment was sup- pressed by Constantine (0. 11, 43, 1). In the time of Justinian, prisoners sent to the mines {in metallum), or to help the miners (in opus metalli), were called slaves without a master. Hence even the Fiscus did not acquire any legacy left to them. (D. 48, 19, 17, pr.; D. 49, 14, 12.) The punishment of the mines was for life ; those sent to aid the miners were not sentenced for life ; and the children of women suffering the lighter punish- ment Avere freeborn. (D. 48, 19, 28, 6.) Justinian (Nov. 22, 8) abolished the class of sei'vi poeiiae, and prohibited the infliction of slavery as a punishment for crime. VI. The ingratitude of a freedman to his patron. The duties of freedmen (libei-ii) to their patrons will be explained hereafter. During the Republic a rescission of liberty was unknown. In the time of Nero, the utmost severity that could be wrested from the Senate was the relegation of undutiful freedmen. Claudius ordered a freedman who had brought a false accusa- tion against his patron to become again his slave. (D. 37, 14, 5, pr.) Gommodus sanctioned the same punishment as a last resource to break a recalcitrant freedman. (D. 25, 3, 6, 1.) From Ulpian and Paul we learn that it was seldom, and only for very grave offences, that a freedman forfeited his liberty. (D. 37, 14, 1 ; D. 4, 2, 21, pr.) Constantine ((J. 6, 7, 2) estab- lished the severe law that even for slight breaches of duty a freedman might be taken back into slavery, although we learn from a constitution of Diocletian and Maximian (C. 7, 16, 30) MANUMISSION. 171 that a mere want of reverence (obsequium) was not enough to cause a forfeiture of liberty. The law was left in this state by Justinian. VII. The fraudulent sale of a freeman. A man may be made a slave by the civil law ; as when a freeman over twenty years of age suffers himself to be sold in order to get a share of the price. (J. I, 3, 4.) This law seems to have been established by Hadrian (D. 40, 14, 2, pr.) as a protection to purchasers. It was a rule of law that a sale of a freeman was void. Advantage was taken of this rule for the purpose of fraud. Two persons conspired together, — one of them represented the other as his slave, sold him, and got the price. Thereupon the person sold insists that the sale is void because he is freeborn. To check this fraud the above law was made. Freedom was not, however, rashly taken away, and it was only when four conditions concurred that the person fraudulently sold lost his liberty. I. The person sold must not be under twenty years of age. But if a person just under twenty sells himself, and after reach- ing that age shares his price with his confederate, he is made a slave. (D. 40, 12, 7, 1.) 2. The person sold must have entered into the sale with the intention of sharing the price, and have actually done so. (D. 40, 13, 1, pr.; C. 7, 8, 1.) But if he restored the price to the purchaser, he was generally allowed to recover his freedom. (D. 40, 14, 2, pr.) 3. The person sold must have known that he was free. (C. Th. 4, 8, 2.) 4. The buyer must have been ignorant that he was free. (D. 40, 12, 7, 2 ; D. 40, 12, 33.) Divestitive Facts. First, Liberation of slaves by the voluntary act of their master (manutnissio). Manumission is the giving a slave his freedom ; for as long as any one is in slavery he is placed under the manus and potestas of his master, and manumission frees him from the potestas. It takes its rise from the Jus Gentium. For by the Jiis Maturate all were born free, and no manu- mission was known, since slavery was unknown. But after slavery came in by the Jus Gentium there followed the boon of manumission. And though nature gave all the one name of man, the Jus Gentium has divided men into three sorts : — Freemen ; and their opposite, slaves ; and a third sort, freed- men {libertitii), who have ceased to be slaves. (J. i, 5, pr.) The forms of manumission varied at different times, and they 1 72 SLAVERY. may be arranged in three periods. The first period embraces the whole of the Republic ; the second, the Empire ; while the changes made by Justinian form an epoch different from both. This division is nearly, although not quite, exact. Duiing the Republic, the modes of manumission were Formal, by means of a fictitious lawsuit, by census, or by the solemnities of the testa- ment. They had the double effect of releasing a man from slavery, and making him a Roman citizen. These two effects were not necessarily conjoined. One might be free without being a Roman citizen. But the ancient law contemplated no other manumission than that which added to the roll of citizens and soldiers. The State was represented by means of its magis- trates or assemblies as a consenting party to the manumission, and hence this species of manumission is often called PUBLIC {legitima, solemnii, justa manumissio). If a master, without resorting to one of these ancient solem- nities, expressed in the presence of witnesses (inter amicos) his intention to give freedom to his slave, and followed up this declai'ation by allowing the slave to dwell in freedom, in strict law the indulgence and good intentions of the master availed the slave nothing. Unless manumitted in proper form, he re- mained a slave, and equally so if the act of manumission were imperfectly performed. The hardship, however, of turning back into slavery a man allowed to live in freedom by his master, merely on account of a technical flaw or defect, is obvious ; but it was not until after considerable experience o the injustice of the law, if we may trust Tacitus (Tac. Ann. 13, 27), that the Praetor interposed. The mode and extent of his intervention are characteristic. He went just so far as was necessary to satisfy the conscience, to prevent the scandal of a man openly enfranchised being again, at the caprice of his master or master's heir, dragged back into slavery ((/crvidii Scaevolae (?) Fr. Dosith, 5) ; but he went no further, and gave the half-enfranchised slave no rights of property. He secured him personal freedom, but nothing more. Such continued to be the law until A.O. 19, when by the lex Junia Norbana all slaves, whose personal freedom was guaranteed by the Praetor, were raised to the condition of Latin colonists. (See Book II. Div. II , Latini Juniani.) During the Empire, from A.D. It), an informal manumission operated as a divestitive fact in regard to slavery, but not as an investitive fact of citizenship. Formtil manumission con- FORMAL MANUMISSION. I 73 tinued to exist, and to raise the slave to the dignity of Roman citizenship. These two kinds of manuTnission — the for- mal and the informal — co-existed down to the time of Justinian. Justinian enacted that a slave, whether manumitted formally or informally, should be a citizen ; and thus the class of Latini Juniani and the distinction between formal and informal manu- mission passed away. There are accordingly three stages to remark in the history of manumission. In the first, the forms of manumission were strict and ceremonial, and they conferred the title of citizen ; in the second, the inconveniences arising from a strict adherence to these forms became a serious evil, and through the edict of the Pr^tor and the lex Junia Norbana slaves released by their masters informally were protected in their liberty and raised to the condition of Latin colonists; lastly, the ancient forms were virtually abrogated, and any expression of the master's will, if attested as required by law, sufficed to liberate the slave. Another distinction between formal and informal manumis- sion is worthy of remark as illustrating the peculiar narrowness and formalism of the ancient law. If a slave were formally manumitted, although the master were induced to do so by fraud or compelled by force, the manumission was nevertheless valid ; but the master had an action for damages. (D. 4, 2, 9, 2.) According to a rescript of Gordian, a master under twenty years of age, who was fraudulently induced to manumit a slave, could not rescind the manumission, and could only sue the person by whose fraud he was led to prejudice his interests. (C. 2, 31, 2 ; C 2, 31, 3.) But an informal manumission, in- asmuch as it derived all its efficacy from its being the free act of the master, was void if it were procured by force or fraud. This distinction may be compared with the law relat- ing to formal and informal contracts. (Book II. Div. I. Sub- div. II.) A. Modes of Manumission. a. Formal Manumission. I. By the vindicta (per vindictam). The name vindicta is given either from the rod employed by the lictor in the ceremony, or, as Theophilus says without any probability, from one Vindicius, who gave information of a conspiracy, and was rewarded by being the first to enjoy a public manumission. It was a fictitious suit brought before one of the higher magistrates (consul, prjetor, proconsul, or 1 74 SLAVERY. « president of a province — C. 7, 1, 4), in which judgment was given in favour of the liberty demanded on behalf of the slave with the consent of the master. The ceremony did not require to be in court. Masters can manumit slaves [over thirty] at any time ; even on the street, when, for instance, the pr^tor, or proconsul, or provincial governor is going to the bath or the theatre. (J. i, S, 2 ; G. I, 2o.) The part of the adsertor lihertatis — the plaintijBf in a suit for freedom — was taken by the lictor. The master laid hold of the slave's hand, or some other part of his body, and said, " I wish this man to be free ; " and thereupon turned him round and let him go. (Livy, 34, 16.) A rod (vindicta or festuca) was then laid on the slave by the lictor, and the Pisetor said to him, " I declare that yoii are free by the Law of Ihe Quirites ; " and to the lictor, "According to your plea, as I have given judgment, behold he is given to you." The lictor then touched the slave with the rod. In the time of Hermogenian (circ. A.D. 287) the solemn words were unnecessary (D. 40, 2, 23); and Ulpian tells us that in his time even the presence of the lictor was not essential. (D. 40, 2, 8.) Corporations {civitates, collegia, etc.) could not manumit their slaves by the vindicta, because it was a ceremony in which the master himself must appear, and could not act by an agent {jyrocurafor). But Diocletian and Maximian refer to a lex Vectihulici (passed probably in the first century of the Christian era), by which slaves of municipalities could be manumitted. (C. 7, 9, 3.) Hadrian (C. 7, 9, 2) tells us that slaves belonging to corporations could be freed with the consent of the pre- sident of the province, on a decree by the local magistrates {duumviri). II. Enrolment of a slave on the census. At the quinquennial census, a slave whose name was regis- tered as a citizen by the command of his master became free. (Ulp. Frag. 1, 7.) There was a doubt as to whether the freedom of the slave dated from the day when his name was inserted, or from the close of the quinquennial period. (Cic. de Orat. 1, 40.) The census was accompanied by a lustrum, or sacrifice of purifica- tion, and thus the ceremony had a religious as well as political import. (Cervidii Scaevolae (?), Fr. Dosith \1^.) This mode of manumission was necessarily confined to Rome, and could have been of little practical use, as the occasion came only once in FORMAL MANUMISSION. I 75 five years. The master must be Quiritarian owner to be able to insert the slave's name on the census. (Cerv. Scaev. (?) Fr. Dos. 17.) After Vespasian ho census was held for 180 years. Decius held one, the last, A^D. 249. III. By testament or codicils. Surprise may be excited at the enumeration of wills as a form of public manumission, inasmuch as secrecy and privacy are the most obvious characteristics of a will. The explanation is found in history. At first wills were made in the form of a law passed by the Comitia Curiata (Book III., Forms of Wills), and were then not only open, but sanctioned by the State. At such a time a will was a public mode of manumission, and it retained that advantage after its own nature had been com- pletely changed. Manumission by the vindicta was irrevocable ; but a gift of liberty in a will could be revoked at any time during the life of the testator. The slave who was ordered by his master's will to be free, did not acquire his liberty from the moment of his master's death, but only when some one became heir under the will. (Ulp. Frag. 1, 22.) Hence, if the heirs named in the will refused to accept the inheritance, the gifts of liberty were made in vain. The introduction of codicils extended the testator's power : it enabled him to impose on the heirs who took in default of his will an obhgation to manurait a slave. (D. 40, 4, 43.) This leads to an important distinction between a direct bequest of liberty and a bequest indirectly, or by way of trust {fideicommissum). 1. Comparison of direct (directa, justa) and fidei-commissary bequest of freedom. 1°. A slave, to whom is bequeathed his freedom directly, becomes free as soon as any person named heir in the will enters on the inheritance. But in a bequest by way of trust the slave does not obtain his freedom until the person to whom he is committed manumits him by the vindicta. 2". Freedom may be given a slave by a trust {fideicommissum) ; if the heir or legatee or trustee {fideicommissarius) is charged to manumit him. (J. 2, 24, 2 ; G. 3, 263). A slave directly set free by will— for instance, in the form, " Let Stichus my slave be free," or, " I order that Stichus my slave te free " — becomes the testator's freedman. (G. 2, 267.) The formality on which Gaius insists was taken away by a constitution of Theo- 1 76 SLAVERY, dosius and Valentian (C. 7, 2, 14) ; and henceforth a direct bequest of liberty might be made even in Greek. In a direct grant of freedom, the testator charges no one to manumit the slave, but by his own testament wills that the slave shall thereby be made a freeman. (J. 2, 24, 2.) 3°- No slave can be directly freed by will, unless the testator owned him \exjure Quzriiium'\ both when he made the will and when he died. (J. 2, 24, 2 ; G. 2, 267.) But it does not matter whether the slave, whose manumission is given by fideicomniissum by the testator, is his own, or belongs to his heir or legatee, or even to an outsider. A slave, therefore, that belongs to another, ought to be bought from him, and then manumitted. [If his master refuses to sell him, his freedom is gone, because for freedom no price can be reckoned.] If his master refuses to sell him, as he may, if he has taken nothing under the will that gives the slave his freedom, then the trust for freedom is not at once gone, but is only put off. For as time goes on, whenever there is a chance to buy the slave, his freedom may be secured. (J. 2, 24, 2 ; G. 2, 264-365.) 4° A slave manumitted under a trust becomes the freedman, not of the testator, even if the testator was his master, but of the manumitter. But he whose freedom is directly assured by will, becomes the testator's own freed- man — a libertus orcinns, as he is called. (J. 2, 24, 2 ; G. 2, 266.) The rights of the patron were of considerable value, and it was therefore important to determine who was to be patron. 5°. Direct bequests could be made only by will, or by codicils confirmed by will. Fideicommissary bequests could be imposed by codicils not confirmed by will, or by codicils without any will being made ; in which case the heir to the intestate was bound to manumit the slaves named in the bequest. (D. 40, 4, 43.) 2. The bequest of liberty may be conditional or unconditional. A slave to whom freedom is given in his master's will, subject to the fulfilment of any condition, is called a statuliber ; because, according to Ulpian (Ulp. Frag. 2, 2), while the slave remains the slave of the heir until the condition is fulfilled, as soon as the condition is fulfilled he becomes free (staiim liber). One is also a statuliber whose freedom is to begin at a given time after the testator's death. (D. 40, 7, 1, pr.) If the time mentioned exceeds the duration of a human life, or the condition cannot be fulfilled, then the bequest is (by Paul) treated as void, because the testator must have written it in mockery. (D. 40, 7, 4, 1.) This construction, so unfavourable to freedom, was not sanctioned by Justinian, who directed that an impossible condition in gifts of liberty should be treated as void (non scripta). (J. 2, 14, 10.) A statuliber, until the condition is ful- filled, is in all respects a slave of the heir (D. 40, 7, 29, pr.) ; and INFORMAL MANUMISSION. I 77 childi'en born of a female slave are slaves. (C. 7, 4, 3.) The heir may sell the slave, but cannot deprive him of the benefit of the condition. (C. 7, 2, 13 ; Ulp. Frag. 2, 3.) Those who are manumitted with the intention of defrauding creditors are statuUberi so long as it is uncertain whether the creditors will insist on their right to have the bequest of free- dom cancelled. (D. 40, 7, 1, 1.) IV. In the Church. (J. 1, 5. 1.) In the enactments of Constantine we may trace signs of a disposition to facilitate the termination of slavery by the manu- mission of slaves. A declaration of the master, in presence of the congregation, to the bishop, of his desire that the slave should be free, operated as a manumission. The declaration was recorded in writing. (C. 1, 13, 1 ; C. 1, 13, 2.) /3. Informal Manumission. I. An oral declaration of freedom in the presence of witnesses (inter amicos) (J. 1, 5, 1), was the oldest form of private manu- mission, and was in use during the Republic. Justinian fixed the number of witnesses at five, and required the declaration of manumission to be written, and attested by the witnesses or by notaries (tabularii) for them. (C. 7, 6, 2.) II. By letter {per epistolam). (J. 1, 5, 1.) In this case Justinian also required the attestation of five witnesses. (C. 7, 6, 1.) III. It was a custom for slaves manumitted by will to attend the funeral of their deceased master, wearing the cap of liberty (pileus). Advantage was taken of this custom to give a false impression of the liberality of the deceased, by making slaves who were uot manumitted appear at the funeral with the cap of liberty. This form of ostentation was put an end to by enact- ing that slaves permitted to wear the cap of liberty at the funeral of their master, by the direction of the deceased, or with the consent of the heir, or who stood on the funeral- couch and fanned the corpse, should obtain their freedom. (C. 7, 6, 5.) IV. A female slave who received a dowry (dos) from her master, and was given by him in marriage to a freeman,, acquired freedom without any formal declaration. There must, however, be a written instrument giving the dowry. (C. 7, 6, 9.) V. Cato wisely wrote, as the ancients tell us, that slaves, if adopted by their masters, are thereby freed. And, in deference to this opinion, we too, by our constitution, have decided that a slave to whom his master has by a M 1 78 SLAVERY. public process {actis intervenientibus) given the name of son is free, although this is not enough to give him the rights of a son. (J. i, 11, 12.) Acta are records kept in the court of a magistrate. Insimuatio or entry of an act in these records was a not uncommon way of securing irreproachable testimony. In some cases it was required to make certain dispositions, as gifts, valid. VI. If the master gave the title-deeds of the slave to him, or destroyed them, with the intention of manumitting the slave, in the presence of five witnesses, the slave obtained his freedom. (C. 7, 6, 11.) Other modes v^ere recognised as sufficient to make a slave a Latin {Latinus Junianus), (one of which, sitting at table with his master, is mentioned by Theophilus), but they were all abrogated by the same constitution that abolished the Latin class of freedmen. (C. 7, -6, 12.) B. Restraints on Manumission. During the Republic, a master could maniimit as many slaves as he pleased, either during his life or by his will. But in the beginning of the Empire, the self-interest of the master appears not to have been considered sufficient security against reckless manumission ; and it was alleged that slaves more frequently gained their freedom by pandering to the vices of their masters, or assisting their political conspiracies, than by the steady prac- tice of virtue and industry. (Dion. Halicarn. Antiq. Rom. 4.) Whatever truth may be in this statement, restraints were im- posed in the interest of the master himself, or of his heirs, or of his creditors. L By the lex Julia de adulteriis, a woman, after separation from her husband by divorce, was prohibited from selling or manu- mitting a slave for sixty days (D. 40, 9, 14, 1) — a prohibition thought by Ulpian to be very hard. (D. 40, 9, 12, 1.) IL Restraints introduced by the lex JElia Seniia, A.D. 4. 1. This law prohibited manumission in fraud of creditors. It is not every one that wishes to manumit that is allowed to do so. For a manumission to defraud creditors [or a patron] is void ; because the lex ALlia Sentia bars the freedom. (J. i, 6, pr. ; G. i, 36-37.) And, finally, it must be known that the provision of the lex ^lia Sentia, that slaves manumitted in order to defraud creditors shall not be made free, apphes to aliens too. This the senate determined at the instance of the late Emperor Hadrian. But the rest of the rules laid down by that statute do not apply to aliens. (G. i, 47.) What is a fraud upon creditors % A man manumits to the fraud of his creditors, if at the very time of manu- RESTRAINTS ON MANUMISSION. 1 79 mission he is insolvent, or if to give freedom to his slaves will make him an insolvent. Yet it is the prevailing opinion, that unless the manumitter had, further, the intention to defraud (animus fraudandi), the gift of freedom is not barred, even though the goods are not enough for the creditors. For often men's fortunes seem larger to their hopes than they are in fact. We see, then, that to bar the gift of freedom there must be a double fraud upon the creditors, — a fraud in intention on the part of the manumitter, and a fraud in fact, for the goods must prove insufficient for the creditors. (J- I, 6, 3.) There must concur both design (conciliuni) and fraudulent result (eventus). (D. 42, 8, 15.) Creditores are any persons having an action against the manumitter. (D. 40, 9, 16, 2.) X owed money to A, and knowing that he was insolvent, manumitted several slaves by his will. Afterwards he paid A, and became indebted to B, and died. Julian decides that the slaves are free, because X intended to defraud A and did not, and defrauded B without intending it. Now both intention and actual defeat of the creditor must go together. (D. 42, 8, 15.) A must, however, not have been paid off with money got from B. [V. 42, 8, 16 ; D. 40, 9, 25.) X was w'irth 1000 aurei, but thought he had only 300. He was 400 aurei in debt. To defeat his creditors, he manumitted his slaves ; but inasmuch as they will be paid in full, the manumission is valid. (Theoph. J. 1, 6, 3.) A being worth 420 aurei, and owing 400 aurei, with the intention of defeating his creditors, manumits B, who is worth 20 aurei, and C, D, each worth 10 aurei. B will remain free, because he was first manumitted, and his manumission does not defeat the creditor ; but C and D will remain slaves. (D. 40, 9, 24.) A is worth 50 aurei, and he owes his creditors 35 aurei. A manumits B, worth 20 aU7'ei, and C worth 15 aurei, with the object of defrauding his creditors. Here B, although first manumitted, cannot be free, because the creditors would be defrauded ; but as C is worth exactly 15 aurei, and his manumission does not interfere with the creditors, C wiU obtain his freedom in preference to B. (D. 40, 9, 24.) Exception. — A master is allowed, if insolvent, to set his slave free by will, and appoint him his heir. And in that case the slave becomes both free and his sole and compulsory heir, if only there is no other heir under the will. And that may be because no one was designated as heir, or because he that was designated, on whatever ground, did not become heir. This is a provision of the same /ex jElia Seniia, and a righteous provision. For it was highly necessary to look forward to the case of needy men, to whom no other one would become heir, and to see that a man should have his own slave as a necessary heir ; for then he would satisfy the creditors : or if not, the credi- tors might sell the goods of the inheritance in his slave's name, and so the deceased would suffer no disgrace {injuria). (J. I, 6, 1.) And the rule of law is the same, even if no mention of freedom is made when the slave is appointed heir. And our constitution has settled this, not only in the case of an insolvent master, but generally ; for we pay a regard to humanity that formerly was unknown. And so now the very entry of the slave as heir of itself gives him his freedom. For it is not likely that the master's wishes were, that the heir he himself chose (though he omitted to give him freedom) should remain a slave, and that thus he should have no heir. (J. i, 6, 2.) l8o SLAVERY. 2. A master under twenty years of age cannot manumit s slave, except under certain restrictions. By the same lex jElia Sentia a master under twenty is not allowed to manumit except by vindicta, and that only after making good a valid reason to the satisfaction of the Board {Consilium). (J. I, 6, 4; G. i, 38.) And even if he wishes to make him a Latin, still none the less he must make good a reason {jusia causa\ to the satisfaction of the Board, and then manumit before friends {inter amicos). (G. i, 41.) Effect of the restraint on the power of testation. Since then the power of manumission, in the case of masters under twenty, was by the lex JLlia Sentia expressly limited, it followed that a master that had completed his fourteenth year, although he could make a will and therein appoint his heir and leave legacies, yet could not, so long as he was under twenty, give a slave his freedom. Now it was unbearable that a man that could by will dispose of all his goods was not allowed to give one slave his freedom. And therefore we allow him, as he disposes of all else, to dispose of his slaves too, according to his last wishes {in ultima voluntate), as he pleases ; so that he can set them free. But freedom is beyond all price ; and hence, in old times, it was forbidden to free a slave before the master reached his twentieth year. We, therefore, choose a middle path, and give a master under twenty leave to free his slave by will only if he has completed his seventeenth and entered on his eighteenth year. For since in old times men of this age were allowed to plead, even on behalf of others, why should we believe that their soundness of judgment will fail them when they come to give freedom to their own slaves? (J. i, 6, 7 ; G. i, 40.) Justinian afterwards reduced the age from seventeen to fourteen. (Nov. 119, 2.) A person under twenty was restricted from any mode of alienation (subject to the amendment of Justinian) except by the vindicta, wiih the consent of the Board, on definite legal grounds. 1°. The constitution of this Board. The Board {Consilium) that is consulted, consists, in Rome, of five sena- tors and five Roman knights above the age of puberty ; in the provinces, of twenty recuperatores. Roman citizens. In the provinces it meets on the last day of the assize ; but at Rome there are fixed days for manumissions before the Board. (G. i, 20.) The Conventus or assizes were held periodically in the provinces. On the last day of the assize the President took his seat on the tribunal, and along with his twenty Seeuperatores [see Book IV., Recuperatores] heard the cases for manumission. At Kome the Preetor presided over the Senators and Equites. (Theoph. Inst. 1, 6, 4.) 2°. Tlie legal grounds of manumission. Valid reasons lor manumission are such as these — that the slave to be manumitted is the father or mother, or son or daughter, or brother or sister RESTRAINTS ON MANUMISSION. l8l by birth, or the faedagogus or nurse, or teacher, or foster-child, or foster- brother, of the manumitter. Or again, that the slave is to become his agent or his wife ; provided only that the wife must be married within six months, unless there is some valid reason to bar the marriage, and that the agent must not be under seventeen at the time of manumission. But if the reason is once approved, be it true or false, the approval cannot be withdrawn. (J. 1,6, 5-6; G. I, ig.) The reasons we set forth above in treating of slaves under thirty apply to this case too. And conversely, the reasons given in the case of a master under twenty may be extended to the case of a slave under thirty. (G. I, 39-) How, asks Theophilus, could a persoD be a freeman and a Roman citizen, and be the owner of his parents as slaves ? This might happen in several ways. A father, B mother, and C son, are slaves of 1). D dies, making free and his heir. A and B will be sl.ives of C. A has two children, B a boy and C a, girl, by his female slave. B and C are of conrse slaves, their mother being in slavery. A makes B his heir. C will be the slave of B. A has a legitimate son B, and C a daughter by his female slave. A dies. B inherits, and C becomes the slave of B. 3. The slave must be thirty years of age. The requirement as to the age of a slave was introduced by the lex ALlia Sentiaj for that statute enacted that slaves under thirty should not, on manumission, become Roman citizens, unless, indeed, they had been freed by vindicta after a valid reason for the manumission had been approved by the Board. (G. i, i8.) If the slave manumitted was under thirty, Gains says he became a Latin (§ 29, 30). The prohibition, thereibre, of the law was not absolute, as in the case where the master was under twenty ; and a manumission not complying with its terms was not wholly void, but had the effect of a private mode of manumission. Ulpian (Frag. 1, 12) states that to be the law when the manumission of a slave under age was by will ; but that if it were by the vindicta it was wholly void, — unless, as has been suggested, the passage is not complete ; but the point is unimportant. When Justinian abolished the class of Latin freedmen, the restraint on the age of the slave manumitted was tacitly repealed, and in the Institutes no mention is made of it. The grounds that will justify manumission by a master under twenty would Suffice for the manumission of a slave under thirty. (G. 1, 39.) Exception. — Moreover, a slave under thirty may, when manumitted, become a Roman citizen, if manumitted by an insolvent master who makes him free and his heir by will ; provided always there is no other slave whose l82 SLAVERY. name comes before his in the like position, and that there is no other heir under the will. This is due to the lex JLlia Sentia. And Proculus is of opinion that we must lean to the side of freedom, and hold the rule the same in the case of a slave that is named as heir without any mention of freedom. (G I, 21, as restored.) Since by the lex jElia Sentia the slave whose name is written first as heir alone becomes a Roman citizen, it was held that, if a man were to name as heirs his bastards by a female slave, all would remain slaves, for his words do not show who is to stand first ; and that the estate should lose more than one would be a fraud upon the creditor. And at last, a Senatus Consultum, appended to the lex Fufia Caninia, provided that it should not be in a debtor's power by such devices to evade the statute. (G. i, 21-*, as restored.) III. And further, the lex Fufia Caiiinia [a.D. 8] sets a fixed limit to the manumission of slaves by will. (G. i, 42). T~, r .1. J » lu ■ f allowed to free any The owner of more than 2, and not more than 10, 's | j,^,j„bernote.xceedingi „ 10, „ 30, « i „ 30. » i°°. » i And lastly, „ 100, „ 500, „ 5 And the statute pays no heed to larger owners, so as to fix any proportionate part. But it enjoins that no man be allowed to manumit more than 100. On the other hand, too, if a man has but one slave in all, or two only, the law makes no provision for that case, and his power to manumit is unrestrained. (G- I. 43-) But what we have said as to the number of slaves that can be manumitted by will, must be taken in this sense, — that in each number, where only one- third, one-fourth, or one-fifth can be freed, one may always manumit as many as are allowed to the lower number that goes before. The statute itself so provides. For clearly it would be absurd that the master of ten slaves might free five — the half, namely, of all he has ; and then that the owner of twelve could free no more than four. But those that have more than ten, and not more than thirty, may manumit any number not exceeding five, the number allowed to those that have but ten. (G. i, 45, as restored.) And if a testator exceeds these limits, but arranges the names of the slaves he frees in a circle ; then, since no order of manumission is found, none will be free. For the lex Fufia Caninia annuls all such evasions. There are two special Senatus Constilta that annul all the devices framed to evade that statute. (G. i, 46, as restored.) To manumission not by will this statute does not apply at all. Those therefore that manumit by -uindicta, or ceTisus, or among friends {inter amicos), may free their whole household if there is no other ground to bar their freedom. (G. I, 44-) The lex Fufia Caninia set fixed limits to the manumission of slaves by will. As this was a bar to freedom, and somewhat invidious in its distinc- tions, we have resolved on its abolition. For it was inhuman enough that during his life a man might give freedom to all his household (unless there was some other ground to bar their freedom), but on his deathbed should be deprived of all such power. Q. i, 7, pr.) Second, Involuntary Divestitive Facts. Freedom given to ACTIONS. 183 the slave by way of forfeiture to the master or reward to the slave. I. When a sick slave was abandoned by his master and recovered, Claudius declared that the slave should be free. (D. 40, 8, 2.) II. Justinian applied the same remedy when the master exposed an infant slave. (C. 1,4,23; Nov. 153.) III. When a female slave, sold under a condition that she should not be made a prostitute, was let out by her master for that purpose, her former master could demand her freedom. (D. 40, 8, 7.) Theodosius and Valentinian (a.d. 428) extendeil this relief to every case where the slave was made a prostitute against her will. (C. 1, 4, 12 ; C. 1; 4, 14.) IV. A master who maliciously allowed a freeman to marry his female slave under mistake forfeited his slave. (Nov. 22, 11.) V. Slaves of heretics, or pagans, or Jews, by accepting Christianity, were released from slavery ; and even if the masters followed them, and were admitted into the Church, they were not allowed to take back their slaves. (C. 1, 3, 56, 3.) VI. A slave who disclosed the assassin of his master was regarded as a freedman of his master (libertus orcinus). (D. 40, 8, 5 ; C. 7, 13, 1.) VII. Constantine enacted that a slave who procured the conviction of coiners of bad money should be free, and that the imperial exchequer should compensate their masters. (C. 7, 13, 2.) VIII. He also gave a slave liberty who disclosed a rape that had been concealed or compromised. (C. 7, 13, 3.) Remedies. A. Eemedies in kespeot op Eights and Ddties. (a.) Eights of the Master. As between the slave and master there were no actions ; but the Prefect of the city heard complaints made by slaves against their master when they were left without sufficient food, or ill-used. (D. 1, 12, 1, 1 ; D. 5, 1, 53.) In some cases of misconduct the master was obliged to sell the slave ; in others, the slave was forfeited and acquired his freedom. As against third parties, in addition to the usual actions for delicts {actio furti, vi honoi'um raptorum, damni injuria, injuriarum], two remedies are specially applicable to slaves. 1. Actio de servo corruplo. 1°. By whom could the actio de servo corrvpto be brought ? The owner, at the time the wrong was done, had the action, even when the slave was in pledge (D. 11, 3, 14, 4), and it was not extinguished by the manumission of the slave. {D. 11, 3, 5, 4.) 2°. The measure of damage. The damages are double the amount of the deprecia- tion in the value of the slave (D. 11, 3, 5, 2), and of what the slave carried off. (I>. 11, 3, 10.) It was the duty of the judge who heard the cause to estimate how much that was. (D. 11, 3, 14, 8.) Thus the compensation or penalty paid by a master for a wrong done by a slave may be recovered from the person who has corrupted the slave — that is, induced him to do the wrong — whether such person has beneHted by it or not. (D. 11, 3, 14, 7 ; D. 11, 3, 10.) 3°. Although of Prastorian origin, the action is perpetual, not temporary. (D. 11, 3, 13. pr.) 4°. It may be brought by the heirs of the owner, but not against the heirs of the wrongdoer, because a penal action never lies against the heirs of a wrongdoer. (D. 11, 3, 13 pr.) Special procedure in regard to fugitive slaves. Besides the edict of the Prcetor 1 §4 SLAVERY. Ide servo corrupto), a Senatus Con8ultum imposed a fine for harbouring fugitive slaves (D. H, 4, 1, 1) ; and Constantine enacted that he who did so must return the slave ■with anolhev of equal value, or 20 solidi. Masters in search of fugitive slaves must obtain written authority from the Emperor to the magistrates, who thereupon were liable to a penalty of 100 solidi if they did not give their help. (D. 11, 4, 1, 2.) Whoever apprehended a fugitive slave was bound to deliver him up to the municipal magistrates, or other public officer. (D. 11, 4, 1, 3 ; D. 11, 4, 1, 6.) Mere fugitation was not treated by the law as a crime, unless the slave passed himself off as free (D. 11, 4, 2), or was caught trying to escape to a foreign country. (C. 6, 1, 3.) (e) Duties op the Master — noxalis actio. 1. Origin. Noxales actiones have been established both by statutes and by edict. By statutes, as for theft by the XII Tables,^ and for damnum injuria by the lex Aquilia. By the Praetor's edict as for injuria and robbery. (J. 4, 8, 4 ; G. 4, 76 ) 2. Damages. A master sued in a noxalis actio on account of his slave may free him- self by surrendering the slave {noxae dedendo) to the plaintiff. Such a sur- render is a final transfer of all his rights as master. If, however, the slave can find money to compensate the new master to whom he is surrendered for the damage {damnum) sustained, then by the Praetor's help, even against the new master's will, he gains his manumission. (J. 4, 8, 3.) If therefore the judge is trying a noxalis actio, and if it shall appear that judgment must be given against the master, it is his duty to give it in the following form : — Publius Maevius I condemn to pay to Lucius Titius ten aurei, or to surrender the offender {noxam dedere). (J. 4, 17, i.) 3. When the master affirmed that the slave was not under his control {potcstas), the PrjEtor gave an election to the plaintiff, either to compel the defendant to declare upon oath that the slave was not under his control, and that he had not parted with the control to defeat the plaintiff, or to accept an action not involving the surrender of the slave [noxae deditio). (D. 9, 4, 21, 2.) If the defendant will not take the oath, it is the same as if the action were undefended (D. 9, 4, 21, 4) ; but if he swears, he is relieved until such time as the slave comes under his control. (D. 9, 4, 21, 6.) 4. If the master did not deny control over the slave, whether he produced the slave or not, the action proceeded. If the slave was absent without the fault of the master, the latter must defend the action, and give security to produce him when he returns. (D. 2, 9, 2, 1.) B. Remedies in Ebspect of the Investitive Facts, or the procedure to be adopted by a master in claiming his slave. I. The action by which a person claiming to be the owner, or to have an interest in another as a slave, demanded that he should be given up to him, was called a liberalis causa. 1. This action might be brought not only by a person claiming as owner, but by any one who had an interest in the work of the alleged slave as a, fructuarius. (D. 40, 12, 8, pr. ; D. 40, 12, 12, 5.) 2. By the law of the XII Tables, the person claimed as a slave could not defend himself, but must be represented by a friend acting as defendant, who waa called the claimant for freedom, adsertor libertatis. (C. Th. 4, 8, 1.) The adsertor took up the defence at his own risk, and was obliged to find security for the delivery of ^ Si servus furtum faxit noxamve nocuit. (D. 9, 4 2, 1.) ACTIONS. 185 the real defendant to his master, if the suit should be so decided. If he failed, he paid the costs. On the other hand, the person claiming the slave paid a penalty if he failed. (Paul, Sent. 5, 1, 5.) In three oases Theodosius provided that the defendant might appear without an adsertor when he had been in possession of freedom for twenty years, or had held a public office, or had lived openly in the same jjlace with the person claiming him as slave. (0. Th. 4, S, 5.) Finally, Justinian abolished the office of adsertor^ and allowed a person, whether claimed as a slave or claiming to be free, to be sued or to sue in his own name. He provided, moreover, that a persnn living in freedom, whom it was sought to reduce into slavery, could act by a procurator ; but a person in slavery must appear and sue on his own behalf. (C. 7, 17, 1.) 3. An action could not be brought more than once by the same claimant against the same defendant (G. 7, 16, 4), but the judgment in favour of the defendant did not prevent a new claimant bringing an action (D. 40, 12, 42) ; for of course, although the first claimant was not his master, another might be. 4. Prescription. If the person enjoying liberty knows that he is a slave {dolo mcdo in possessione lihertatis est), there is no limit to the time during which he may be claimed by his owner. But if he has for twenty years been free, without knowing that he was a slave (bona fide in possessione lihertatis), his liberty cannot be challenged. (C. 7, 22, 2.) 5. Until the suit is decided, the defendant retains his liberty, if he enjoyed liberty when the suit was begun. (C. 7, 16, 14.) This was the principle violated by Appius Claudius, when he ordered the daughter of Virginius to be given, for interim custody, to one of his own minions. 6. Punishment for a malicious questioning of one's liberty. A claimant that has mischievously and without reason attacked the freedom of any one, is liable to an action for damages, actio injuriarum or de caZumnia. (C. 7, 16. 31.) He might also be puni.shed with exile. (D. 40, 12, 39, 1.) 7. The burden of proof. The presumption of the Roman law was not in favour of liberty nor against it, but in favour of the state in which the alleged slave was (sine dolo malo) at the time the action was brought. In order, therefore, to determine upon whom the burden of proof lay, it was sometimes necessary to institute a previous inquiry into the condition of the slave before the suit began. If the alleged slave had been free, but at the time of the suit had been seized by violence, and kept by the alleged master as a slave, the slave was regarded as free, and the master must prove that he was owner. If, on the other hand, the slave escaped and hid himself for some years, and, when the master found him, denied his status ; upon proof of those facts the slave would be required to prove that he was free. (D. 40, 12, 7, 5 ; D. 40, 12, 10.) 0. Remedies in Respect of the-Divestitive Facts. 1. Jjiheralis Causa. This is the same action as the former, but the position of the parties is reversed ; the master of the slave is now the defendant. 1. Prior to Justinian, this action must be brought by the claimant for freedom, adsertor lihertatis ; but Justinian gave the action directly to the person claiming free- dom. It might also be brought by the father of the alleged slave, even against the wishes of the latter. (D. 40, 12, l.pr.) Children could bring the suit in behalf of parents, also irrespective of their wishes, on the ground that it was a disgrace to the children for their parents to be in slavery. (D. 40, 12, 1, 1.) Cognates (D. 40, 12, 1, 2) and illegitimate children (D. 40, 12, 3, pr.) enjoyed the same privilege. 'J he defendant was the person who set up any in'.erest in the claimant as a slave. 2. If the person claiming freedom is living with the defendant as his slave, the action must be brought in the place where the master lives. (C. 3, 22, 4.) 3. The suit for freedom might be brought of tener than once (G. 7, 17, 1), but not unless some new ground had arisen in support of the claim. (D. JO, 12, 25, 1 .) 4. There is no prescription against freedom (C. 7, 22, 3) ; and, therefore, however 1 86 SLAVERY. long a person had been in slavery, he was not precluded from asserting his freedom. Another rule tended to favour liberty. After a person had been dead five years, it was not permitted to challenge his status, with a view to degrade him, but it wa« allowed to show that his status was higher. Thus if he died a slave, it could be sworn after five years that he was really freeborn ; but if he died free, it was not allowed after that time to prove him to be a slave. This rule was introduced by Nerva. (D. 40, 15, 4, pr. ; D. 40, 15, 1, 4 ; D. 40, 15, 3.) II. Special remedies for bequests of liberty on trust — Fideicommissa. The person who was bound by will or codicils to manumit a slave, might refuse to do so, or might evade summons to a court of law, and thereby delay or defeat the benevolence of the deceased. This inconvenience was removed by the following enactments ; — 1. 'She Senatus Consultum Rulrianam (temp. Trajan) gave the Prastor power to declare a slave free, if the person who ought to manumit him was summoned and refused to appear. (D. 40, 5, 26, 7 ; C. 7, 4, 5.) 2. The Senatus Consultum Dasumianum [temp. Trajan, or not later than Antoninus Pius) gave the same remedy when the person was summoned, but had a good excude for non-attendance. (D. 40, 5, 51, 4.) 3. The Senatus Consultum Vitrasianum [temp. Hadrian or Antoninus rather than Vespasian) extended the remedy to the case where the delay was caused not by the person required to manumit the slave, but by the incapacity of a co-heir. (D- 40, 5, 30, 6.) 4. The Senatus Consultum Juncianum enabled the Praetor to decree liberty where the slaves ordered to be manumitted did not belong to the testator. (D. 40, 5, 28, 4.) Fitially, Marcus Anreliua states that no incapacity or default of the person whose duty it is to manumit the slaves shall prejudice their claim to freedom. (D, 40, 5, 30, 16.) The INTERDICT de libera homine exhibemlo. This interdict is enforced only when there is no question as to the status of the freeman whom it is sought to liberate from illegal detention. (D. 43, 29, 3, 7.) The word to produce (exhibere) signifies to bring the person asked into court, so that he may be seen and touched. (D. 43, 29, 3, 8.) The order was to produce the free person whom you wrongfully detain. (D. 43, 29, 4, pr.) Quem liberum dolo malo retines, exhibeas. (D. 43, 29, 1, pr.) This order is peremptory, and must be at once obeyed. (D. 43, 29, 4, 2.) If the defendant is condemned, but rather than produce the person whom he wrongfully detains, pays the sum named as damages, the plaintiff or anj'one else can at once bring a new interdict, carrying a repetition of the damages, and this may be repeated uutil the person is actually produced. (D. 43, 29, 3, 13.) A P P E N D I X. In this work no place is assigned to the rights of citizenship as a distinct topic in Roman law. The proper place for that subject would be a chapter preliminary to the general body of the work. But such a chapter has not been inserted, partly from reasons of convenience, and partly because, in the time of Justinian, questions regarding citizenship had practically ceased to exist (see p. 30). In the time of Gains, however, the rules for determining questions of that kind were still of importance, and the following passages may be considered as illustrations of STATUS BY BIRTH. 187 the general rule stated above (p. 23), governing the determina- tion o{ status. Therefore if a woman that is a Roman citizen is, while pregnant, inter- dicted from fire and water, and so becomes an alien before childbirth, many draw a distinction, and think that if it was in lawful marriage that she con- ceived, then her offspring is a Roman citizen ; but if not, then an alien. (G. I, 90.) Interdiction from fire and water was the old republican form of banishment. The object was to compel the citizen to withdraw himself, and to avoid the danger of drawing down on the city the anger of some deity, in consequence of driving shipper from his altars. r a wor- Again, if a woman that is a Roman citizen and pregnant is made a slave under the Senatus Consultwn Claudianum, for having intercourse with a slave belonging to another despite the mastei-'s warnings, then in this case many draw a distinction, and hold that her offspring, if conceived in lawful marriage, is a Roman citizen ; but if not, a slave, and the property of the master that now holds the mother as a slave. And again, if an alien conceives not in lawful marriage, and thereafter becomes a Roman citizen before child- birth, then her child is a Roman citizen. But if the father is an alien to whom she is united according to alien statutes and usage, it seems from the Senatus Cojtszilhem passed at the instance of the late Emperor Hadrian that the offspring is an alien, unless the father too has gained the Roman citizen- ship. (G. I, 91, 92.) The rule just stated, that if a female Roman citizen marries an alien the offspring is alien, is one that holds good even when there is no conubium between the parties. This was already accomplished by the lex Minicia [of uncertain date], which provides also that if a male Roman citizen marries an alien woman with whom he has no conubhcin, the offspring of their inter- course is an alien. In the former case the statute was needed, for otherwise, since there was no conubium between the parents, the child would, by the rule of the Jus Gentium, follow the mother's condition, not the father's. But the part that ordains that a child whose father is a Roman citizen and its mother an alien, is itself an alien, brings in nothing new ; for even without that statute this would be so by the rule of the Jus Gentium. (G. I, 78, as restored.) Nay, even the offspring of a Latin woman and a Roman citizen follows its mother's condition ; for to this case the lex Minicia does not refer. True, indeed, it embraces not only aliens, but also so-called Latins. But the Latins it refers to are Latins in another sense — Latins forming distinct peoples and communities, who were in fact aUens. (G. I, 79.} And on the same principle conversely the offspring of a Latin father and a female Roman citizen is a Roman citizen. Some, however, thought that if the marriage were contracted under the lex ALlia Sentia the offspring would be a Latin. Because seemingly in that case the lex /Elia Sentia and the lex Junta [JVorbana] gave conicbium betv\ een the parties ; and the efl'ect of conubium always is that the offspring follows the father's condition. If however, the marriage were otherwise contracted, then they thought the offspring would by the Jus Gentium follow the condition of the mother. In i88 POTESTAS. our day this matters nothing. For the rule in use is declared by the Senatus Consultwn passed at the instance of the late Emperor Hadrian, that in any case the son of a Latin father and a female Roman citizen is a Roman citizen. (G. i. 80.) And in agreement with this, a Senatus Consultum of the same reign declares that the offspring of a Latin father and an alien mother, as also, on the other hand, of an alien father and a Latin mother, is to follow the condi- tion of the mother. (G. I, 81.) Statutory Exceptions. We ought to observe, however, whether there are any cases in which the rule of the Jus Genlium is changed either by a statute, or by a decree having the force of a statute. (G. I, 83.) For instance : — Under the Senatus Consultum Claudianum a female Roman citizen that has intercourse with the slave of another with the master's consent, can herself by covenant remain free while her issue is a slave. For the agreement between her and the master of the slave is by that Senatus Consultum made valid. But afterwards the late Emperor Hadrian was moved, by the injustice of the case and the anomalous nature of the law, to bring back the rule of the Jus Gentium; and thus, since the woman remains free, her offspring too is free. (G. I, 84.) And again, by the lex Latina, the offspring of a female slave and a freeman might be free. For that statute provides that if a man has intercourse with another's slave in the belief that she is free, then the offspring, if males, are free ; but if females, belong to the woman's master. But in this case too the late Emperor Vespasian was moved by the anomalous nature of the law to bring back the rule of the Jus Gentium. And thus in all cases the offspring, even if males, are slaves of the mother's owner. But that part of the same statute remains untouched which provides that the offspring of a free woman by another's slave, whom she knew to be a slave, are slaves. Therefore among those that have no such statute, the offspring, by the Jus Gentium, follow the mother's condition, and are therefore free. (G. I, 85, 86.) II.— P ATRIA POTESTAS. Definition. The Patria Potestas is the name for the rights enjoyed by the head of a Roman family over his legitimate children. (D. .'JO, IG, 215.) The potestas could be enjoyed only by Roman citizens, and thus the loss of citizenship involved the loss of the potestas. Slaves Avho, on being manumitted, became Roman citizens, and -were married, acquired the potestas over their children born after the manumission. NATURE OF POTESTAS. 1 89 We have pntestas over our children by a regular marriage begotten. The jus potestatis that we have over our children is peculiar to Roman citizens. For no other people have such power over their children as we have. This was pointed out by the late Emperor Hadrian in an edict he put forth regarding those that asked from him Roman citizenship for themselves and their children. Nor am I unmindful that the people called Galatae believe that children are in the potestas of their parents. (J. i, 9, pr. 2 ; G. I, 55.) The statement of Gaius that such a power as the patria potestas was unknown except among the Romans and Galatians, correctly represents the beUef of the Eomau jm'ists, but does not correctly represent the fact. A similar power is found among many other nations of antiquity. Maine's Ancient Law, 135. " The heir, as long as he is a child, differeth nothing from a servant though he be lord of all." Galatians iv. 1. The powers enjoyed by a father over his children were identical with those that a master possessed over his slave. But this statement is subject to a very important quahfication. Within the domain of private law, a son was scarcely to be distinguished from a slave ; but in the sphere of pubhc rights and duties the son was free and independent. The State had the first claim on its citizens, and where its demands intervened the paternal despotism Avas excluded. (D. 1, 6, 9.) Thus a son could be elected magistrate, although ho could not marry without his father's consent ; and he could act as tutor even against his father's wishes, because the oiBce of tutor was a public duty. (D. 36, 1, 13, 5 ; D. 36, 1, 14, pr.) In the same way a son could act as judex or judicial referee even to his own father. (D. 5, 1, 77 ; D. 5, 1, 78.) Again a son elected Consul could himself superintend the ceremony of his own emancipation from the potestas. (D. 1, 7, 3.) Within the sphere of private law, however, the position of a son is strictly to be compared with that of a slave. To what extent the comparison is in favour of the son, will appear by a consideration of the essential characteristics of the potestas. 1. During the Republic, a son was as incapable of possessing property as a slave. All his labour, all that he acquired, became the property of his father. The steps by which this rigorous incapacity was modified, will be enumerated in their place under the law of Property. (See Peculium.) It may, however, be here mentioned that the Roman father seems to the last to have enjoyed the right of seUiug the labour of those under his potestas. (Paul, Sent. 5, 1, 1.) 1 90 POTESTAS. 2. The supreme power of life and death is specially mentioned in the laws of the XII Tables as belonging to the paterfamilias. We may regard this power as an aspect of the general right of property, — the right, as it is expressed, of doing what one likes with one's own ; and such was, to some extent at least, the aspect in which it presented itself in the earlier periods of legal history. But another view mingled with this debased conception of paternal authority — the view, namely, that the despotic authority of the paterfamilias bore the character of patriarchal jurisdiction rather than ownership. Seneca calls the paterfamilias a domestic judge (judex domesticus), (Con- trovers. 2, 3), and domestic magistrate (magistratus domesticus) (De Benef. 3, 2). Be that as it may, the right to kill his off- spring undoubtedly belonged to the Roman father during the Republic. The power of life and death included all minor inflictions of pain. The paterfamilias could imprison a refractory son for days or months or years, according to his sole arbitrary pleasure, even although the son had enjoyed the highest honours of the State. The paterfamilias could flog his children with any degree of severity, and could bind them in chains and send them to work like convicts in the flelds. (Dion. Hal., Antiq. Rom. 2, 27.) To these harsh rights there was, according to Dionysius Halicarnassus {Aniiq. Rom. 2, 51), a humane and interesting exception. Romulus, he says, made a law to the effect that his subjects should not expose any male children, or their firstborn female child, unless such children were, in the opinion of five neighbours, so deformed that they ought to be killed. An offender against this law was subject, in addition to other penalties, to the forfeiture of half his property to the State. Heineccius refers to this passage without compre- hending its significance. It has been pointed out to me by Mr John M'Lennan (the author of that ingenious and admirable work on the earlier stages of social development. Primitive Marriage) as " a fine example of good old savage law." Infanti- cide is an almost universal practice among savages, and receives its first customary check by the rule that forbids the destruction of the males and eldest female. The reason why only the eldest female enjoyed the benefit of the exception, is to be sought in the small value of women to a savage community. As a rule, savages prefer to steal their wives instead of rearing them. NATURE OF POTESTAS. I9I This law, then, ascribed to Rntnnkis, is an indication, and not the only one, that the customary law of the Romans, as embodied and fixed in the laws of the XII Tables, was not really the beginning of Roman law. It gives ns a glimpse of an earlier and forgotten stage of development leading back to a far-off state of savagery. According to Cicero {De Leg. 38) this law of Romulus was transferred to the XII Tables ; but in spite of that, it remained as a tradition among a people that had for- gotten its origin and meaning, and we are assured by various writers that the practice of infanticide was common even down to the Empire. The exercise of the extreme power of killing is not unknown to the readers of Roman history, and it was not until the time of Constantine that an exercise of the ancient right of slaying was declared to be murder. Before his time, however, the cruelty of patresfamilias had been rebuked and restrained. In the time of Trajan, a father having been guilty of gross cruelty to his son was compelled by that Emperor to emancipate him, and was deprived of all share in his in- heritance. (D. 37, 12, 5.) A similar case occurred under Hadrian. A father, while hunting, killed his son, and was punished by deportation to an island. He was stigmatised as exercising the right of a robber rather than the right of a father, and yet he had received what must be considered severe pro- vocation, the son having committed adultery with his step- mother. (D. 48, 9, 5.) In the year A.D. 228, the Emperor Alexander treats the right of life and death as obsolete, and states that if the father wished to impose more severe punish- ment on a child than simple flogging, he must apply to the highest judicial authority, the President of the Province, for his sanction. (D. 48, 8, 2.) Finally, in A.D. 318, Constantine enacted that if a paterfamilias slew his son, he should suffer the death of a parricide ; i.e., be tied up in a sack with a cock, a viper, and an ape, and be thrown into the sea or a river to be drowned. (C. 9, 17, 1.) In a.D. 374 an enactment of Valen- tinian, Valens, and Gratian made the exposure of infant chil- dren a crime, thus imposing upon parents an obligation to rear their offspring. (C. 8, 52, 2.) 3. The right of selhng their children belonged to the father who had the potestas. " Over his lawful children let him have the power of life and death and of sale. If the father thrice 192 POTESTAS. sells the son, let the son be free from the father."^ The child who was sold did not, however, become a slave. (C. 8. 47, 10 ; Paul, Sent. 5, 1, 1.) He was held in mancipio. (See Mancipium.) From this state, a son voluntarily sold by his father, was re- leased by enrolment on the census, even without the consent of the person who had him in mancipio. (G. 1, 140.) A son thus relieved from mancipium fell back into the potestas of his father, and but for the restriction of the XII Tables to three sales, the process might have been repeated indefinitely! Tradition ascribed to Numa Pompilius a restriction on the power of sale, to the effect that if a, paterfamilias sanctioned the marriage of his son, he could not afterwards sell him. (Dion. Halicar. Antiq. Rom. 2, 28.) By the XII Tables a repetition of the sale of a son for the third time operated as a forfeiture of the potestas. By what steps we know not, but almost at the earliest period of legal writing, the power of sale was obsolete, and made use of only in fictitious legal proceedings. Diocletian and Maximian state as clear law, that a sale, gift, or pledge of a son by his paterfamilias was wholly void ; and even although the purchaser honestly believed that the child was a slave, still he took nothing by the purchase. (C 4, 43, 1.) Paul (Sent. 5, 1, 1) tells us that if a creditor knowingly accepted a free person as a security for a debt, he was liable to deportation. Afterwards Constantine permitted parents suffering from extreme poverty to dispose of their new- born children (sanguinolenti), and the purchaser was entitled to the benefit of their services ; but He reserved the right to the father, or any other person to redeem the child by payment of money, or giving a slave in exchange. (C. 4, 43, 2.) These details illustrate the gradual progress of a rational conception of the position of parent and child. At first, the father is despot or owner ; he has all the essential rights of ownership, the right to use the son's services, the right to part with them, the right to destroy ; but gradually those rights are limited ; the father ceases to be the proprietor, he becomes the natural protector and guardian of his children. Such was the tendency of Roman law, although, as appears from the latest law, it never went so far in the direction of giving indepeo- ' The words o£ the XII Tables are, " Endo liberis justis jus vitcenecis vaimn- daiidique potestas ei esto. Si pater Jilium tcr venumdit filius a patre liber csto. /'■ NATURE OF POTESTAS. 1 93 dence to the child, as is now considered necessary in all civilised nations. 4. It followed that no action for damages could lie at the suit either of son or father against the other. But if a son does a wrong {noxa) to his father, or a slave to his master, no action arises. For between me and a person in my potestas no obligation arises. And therefore if he passes into anotlier's potestas, or becomes his own master, neither against him nor against the man in whose potestas he now is can there be any action. And hence this question is raised : — If another's slave or son wrongs me, and thereafter comes under my potestas, does the action fall through, or is it only in abeyance? The teachers of our school think that it falls through, because under the new circumstances the action cannot be sustained ; and consequently, although he passes out of zay potestas I can bring no action. The authorities of the opposing school think that as long as he is in my potestas the action is in abeyance, since I can bring no action against myself, but that when he passes out oi ray potestas, then the action revives. (G. 4, 78.) It was the existence of the potestas that determined the legal constitution of a Roman family, so artificial as it seems to us, as indeed it did to the jurisconsults of the Empire. The Roman family cannot be defined as consisting of parents with their children; it was composed of those persons who were subject to the potestas of the same individual, whether they were his children, grandchildren, great-grandchildren, or entirely uncon- nected with him in blood. Hence a child who had been emanci- pated from the potestas was at first, from a legal point of view, no member of the family, Avhile a stranger introduced by adoption was regarded to all intents and purposes as the off- spring of the head of the family. So far was this view carried that the conception of blood relationship was submerged in that of persons living under the same potestas. A sister who was married into another family, and placed under a different potestas, was looked on as no longer related to her brothers for any legal purpose. The history of Roman law discloses a series of changes by which the Roman family was brought nearer and nearer to the modern point of view. Next comes another division of the law of persons. For some persons are sui juris, others alieni juris. And again, of those alieni juris, some are in the potestas of parents, others in the potestas of masters. Let us look then to those that are alieni juris j for if we know who they are, we shall at the same time understand what persons are sui juris. And first, let us treat of those that are in 'Che. potestas of masters. (J. i, 8, pr.) Sui juris. A person not subject to any of the three forms of authority already described, or to be described, potestas, manus, mancipium, was said to be sm juris. N 1 94 POTESTAS. Tlie phrase sui juris does not signify that a person had arrived at any age of legal majority. A child just born, if not under the potestas of the father, was sui juris. Alieni juris. A person under any one's ^otestos, manus, or mancipium, was said to be alieni juris. Paterfamilias. This word is sometimes employed in a wide sense as equivalent to sui juris. A person sui juris is called paterfamilias, even when under the age of puberty. (D. 1, 6, 4.) In the narrower and more common use, a, paterfamilias is anyone invested with potestas over any person. It is thus as applicable to a gr.ind- father as to a father. (D. 50, 16, 201.) In this sense the woid paterfamilias is used throughout this chapter. FUiusfamilias (son), fMafamilias (daughter). These are the co-relative terms to paterfamilias, and signify any person, male or female, who is imder the patria potestas of another. A grandson may therefore be properly designated filiusfamilias, and his grandfather, under whose -power he is, hia paterfamilias. (D. 50, 16, 201.) Mater fimilias. At first, probably, materfamilias signified a wife under the manus of her husband, and was thus the equivalent of JiliafamUias rather than of paterfamilias. A married woman not under the manus of her husband was distinguished as matrona. (Aul. CtcII. 18, 6.) At a Liter period, materfamilias was sometimes employed as equivalent to paterfamiliojs -in one of its meanings, and designated any female sui juris. (D. 1, 6, 4.) Materfamilias was also applied to any respectable woman, whether married or single, freeborn or a freedwoman. Character, says Ulpian, not birth or marriage, marks the materfamilias. (D. 50, 16, 46, 1 ; D. 43, 30, 3, 6 ; D. 48, 5, 10, pr.) Eights and Duties. A. Rights of paterfamilias. I. To exclusive possession of those under his potestas. Sometimes, too, freemen are the objects of theft (Jurtum), as when a child in our potestas [a wife in our manus, or even a debtor assigned {adjudicatus) to me by a court, or a hired gladiator {auctoratus)] is carried off by stealth. (J- 4, i> 9 ; G. 3, 199.) II. To exclusive use. It has been already pointed out (p. 2) that a father could bring an action for damages for injuries suffered by his son through the negligence of a defendant. III. An injuria to a child in the power of his father is an injury to the father. A man may suffer an injuria, not only in his own person, but also in those of his children in potestate, and of his wife [although not held in manu\ ; for this opinion has on the whole prevailed. And therefore, if you wrong my daughter, Titius' wife, an actio injurij,rum lies against you, not only in my daughter's name, but also in the name of me the father, and of Titius the husband. But, on the other hand, if an injuria is done to a husband, the wife cannot bring an actio injuriarum. For wives ought to be defended by husbands, not husbands by wives. An actio injuriarum may also be brought by a father-in-law on behalf of his daughter-in-law, if her husband is in his potestas. (J. 4, 4) 2 ; G. 3, 221.) The rights of children begin where the rights of slaves end. The utmost limit of legal security accorded to the slave was to give the master, not the slave, an action for sei'ious RIGHTS OF FATHER. 195 harm done to the slave. But a child in his father's power could suffer an injuria altogether apart from any disrespect intended for his father, although the latter alone could bring an action for the appropriate penalty. Whether, at some earlier period, the son was in the same position as the slave, is a matter of conjecture ; but when the written records of law appear, the son is treated altogether as a freeman, although with an incapacity to enforce his rights. His father alone had the power of compelling the wrongdoer to pay compensation. But every injury to the son was regarded also as an injury to his father, and therefore two actions might be brought — one for the injury to the father, the other for the injury to the son. The damages in each action were fixed in accordance with the dignity of the persons: if the son had the higher dignity, the heaviest damages would be obtained on his account. (D. 47, 10, 30, 1 ; D. 47, 10, 31.) The rights of wives are complete, and they can also bring the necessary actions to vindicate their rights, unless they are in the manus of their husbands ; for the manus over wives was the equivalent of the potestas over children. If a woman had not passed under the manus of her husband, which in later times she seldom did, she continued under the potestas of her father ; and hence, for a wrong done to her, botli her husband and her father had each an action. (D. 47, 10, 18, 2.) The husband had an interest in the modesty of the wife, the father in the good name of the daughter. (C. 9, 35, 2.) It might, indeed, happen — so distinct were the grounds of injury — that no wrong might be done to the son, and yet through him a wrong be done to his father. The son might give his consent, and therefore no wrong would be done to him ; but still the son's consent did not wipe out the wrong to the father. Thus — if A sold B's son with his consent, no wrong was done to the son ; but nevertheless B had his action against A for the wrong done to him as father. (D. 47, 10, 1, 5 ; D. 47, 10, 26.) Under certain circumstances, however, a son, while still in his father's power, could himself bring an action for injury done to him. This was allowed under three conditions : — the father must be absent, or insane ; he must have gone away without leaving any agent (procurator) authorised to bring the action; and the Praetor must have given his permission, after ascer- taining whether the son was likely to conduct the case properly. (D. 47, 10, 17, 17; D. 47, 10, 17, 11.) The Pr^tor says, "If to 196 POTESTAS, him that is in another's potestas an injury is alleged to have been done, and he that has the potestas is not within the juris- diction, and no agent appears to act in his name, then, after ascertaining the facts of the case, to him that is alleged to have received the injury I will give a remedy." ^ The son could not bring the action if the father were within the jurisdiction, and refused ; for the reason why the son was allowed to bring the action at all, was the assumption that the father, if present, would sue. Occasionally, when the father was at home, but of low character, and the son was respectable, the latter was permitted to sue in his own name. (D. 47, 10, 17, 13.) The son also could sue if his father's procurator neglected his duty. (D. 47, 10, 17, 15.) Paul, however, quoting the opinion of Julian, lays it down without qualification that a son can in his own name bring the actio injuriarum, the Interdict Quod vi aut clam, and the actiones depositi and commodati. (D. 44, 7, 9.) But quaere, was the con- sent of the father necessary °l Again, Tryphoninus says that a son could attack his mother's will as inojiciosum if the father accepted a legacy under the mother's will, and, therefore, could not impeach the will. (D. 5, 2, 22, pr.) The disposition was to permit a son, even against his father's wishes, to sue for wrongs touching his honour. When the son sued, he proceeded in his own name, not in the name of his father ; and after he had brought his action, his father could not afterwards sue on his own account. (D. 47, 10, 17, 21.) Also, after the father's death, if the son were relieved from the potestas, he could sue for any injuria done to him. (D. 47, 10, 17, 22.) B. Duties of the Paterfamilias. I. At first a paterfamilias was responsible for his sons exactly in the same way as a master for his slaves, and could get rid of all liability by surrendering the wrongdoer. A curious question of form is discussed by Gains. When a son is given up to be held in tnancipio because of some wrong he has done {noxali causa), the authorities of the opposing school think that he ought to be thrice conveyed by mancipation ; and this because of the statutory provision in the XII Tables, that no son shall pass out of his "^ A^ Prcetor. Si ei qui in alterius pofestafe erit, injwria facta esse dicetur et neque is cujus in potestate est, praesens erit, neque procurator quisquam existat qui eo nomine agqt : causa cognita ipsi qui injuriam accepisse dicetur judicvam dabo. (D. 47, 10, 17, 10.) INVESTITIVE FACTS. 1 97 father's power unless by three mancipations. But Sabinus and Cassius, and the rest of the authorities of our school, think that one mancipation is enough ; for they believe that the provision in the XII Tables refers only to voluntary mancipation. (G. 4, 79.) A son surrendered in mancipio was not a slave. He was bound to work for his new master, but was not apparently in other respects in the status of slavery. (Servire actori debet non fit tamen senilis conditionis. Quintil., Inst. Orat. 7.) Also, by payment of the sum due as damages, the son could at any time be released. (Collat. Leg. Mos. et Eom., 2, 3.) II. Disuse of noxal surrender. In old times, indeed, such surrenders were made even in the case of children, both sons and daughters. But later ways of thought have rightly judged that such harshness is abominable ; and it has therefore fallen into entire disuse. For who could bear to surrender to another, for some misdeed {noxa) his son, and above all his daughter ? Would not the father, through his son's person, risk more than the son himself? While in the case of daughters a due regard to modesty forbids the practice. And therefore it is decided that slaves alone are liable to noxales acHones; while we find it often said in the older commentators thaX Jilii familias can be sued in person for their delicts. (J. 4, 8, 7.) Investitive Facts. A. Acquisition of the potcstas over a man's own issue. I. We have ^otestas over our children by a regular marriage begotten. (J. I, 9, pr. ; G. I, 55.) The offspring of you and your wife is in your potestas. And so, too, the offspring of your son and his wife. Your grandson (that is) and granddaughter, are equally in your potestas, and your great-grandson and great-grand- daughter, and so on. Your daughter's offspring, however, is not in your potestas, but in its father's. (J. i, 9, 3.) In order to contract regular marriages, and to have the children therein begotten under \!a^\x potestas, Roman citizens must marry wives that are Roman citizens, or, at all events, Latins or aliens with whom they have conu- bhim. For the effect of conubium is to make the children follow the father's condition, and thus the sons become Roman citizens, and are in the father's potestas. (G. i, 56.) All that we have said of the son must be understood of the daughter also. (G. I, 72.) It is at this point — as an investitive fact in regard to the potestas — that Gaius and Justinian treat of the conditions neces- sary to a legal marriage. The subject will be examined fully in treating of the relation of husband and wife. (Book II. Divis. II.) igS POTESTAS. It sometimes happens that children not in their ^paxerAs' potestas at birth, are yet afterwards brought vnder pofestas. (G. i, 65.) 11. A Latin freedman that has a child a year old may, by petition, obtain a grant of the potestas over his child (anniculi probatio). Therefore if a Latin, in accordance with the lex jEKa Sentia, marries a wife and begets a son, whether that son is a Latin by a Latin wife, or a Roman citizen by a wife that is a Roman citizen, the father will have no potestas over him. But afterwards, by showing good grounds, he gains Roman citizen- ship, and his son as well. And from that instant the father's potestas over the son begins. (G. i, 66.) It is different with those that by the jus Latii obtain the Roman citizen- ship not only for themselves but for their children. For their children pass under their potestas. And this right is enjoyed by some alien states, if only they have the Majiis Latium. For Latium is either majus or minus. It is called majus when by holding a magistracy or post of honour in their own state men win the Roman citizenship, not only for themselves, but for their parents and children and wives. It is called minus when those only that actually hold the magistracy or post of honour attain to the Roman citizen- ship. And this distinction is set forth in many letters of the Emperors. (G. I, 95, as restored.) The defects of the MS. leave the distinction between majus and minus Latium somewhat uncertain. Jus Lata. In tracing the development of Roman Law, we are at every point confronted with the fact, that it was a system confined exclusively to Roman citizens. Citizens alone had civil rights or duties ; citizens alone could sue or be sued. But by treaty with their neighbours, the Romans admitted aliens born to a share, greater or less, of their civic rights. A distinction commonly made was between the privilege of intermarriage {conubium), which was the basis of the domestic or family law, and the privilege of acquiring property and making contracts (commercium), which was the basis of commercial intercourse. It was upon this distinction that the privileges accorded to the inhabitants of Latium were determined. To them was granted com- mercium, but not conubium; with special facilities, however, for enabling them to acquire the full status of Roman citizens. By the lex Julia et Plautia de civitate (B.C. 89) the rights of citizens were extended to the whole of Latium, and henceforth the expression jus Latii ceased to have any territorial signification, and was conferred upon remote districts, asi on Sicily by Julius Caesar, and 011 the whole of Spain by "Vespasian. The exact position of a Latinus may be determined by the information given us regarding Latini Jimiani, who were manumitted slaves not allowed any greater rights than the old Latini. {See Book III. Div. II., Latini Juniani. ) As far as regards making good a case of mistake, the age of the son or daughter matters nothing ; for on that point the Senatus Consultum makes no provision, unless indeed the case put forward is that of a Latin man or woman married under the lex Mlia Sentia. For no doubt then, if the son or daughter is less than a year old, the case cannot be made good. Nor am I unmindful that in a rescript of the late Emperor Hadrian it seems to be settled that to make good any case of mistake the son must be a year old. But we ought not always to regard a letter by the Emperor to a particular person as bring- ing in a general rule of law. (G. i, 73, as restored.) INVESTITIVE FACTS. 1 99 III. When a mavriage is illegal in consequence of a mistake as to the status of one of the parties, upon proof of the error the potestas in certain cases could be obtained. In those cases in which the mother's not the father's condition is followed by the offspring, it is abundantly plain that the father, even if a Roman citizen, can have no potestas over it. And therefore we specially mentioned above that in certain cases where, through some mistake, the mai'riage was not duly contracted, the Senate steps in to remedy the defect in the mar- riage ; and in that way often the son is brought under the father's potestas. But if a female slave conceives by a Roman citizen, and thereafter by manumission becomes herself a Roman citizen before child-birth, although the offspring is a Roman citizen like his father, yet he is not in his father's potestas. For the intercourse in which he was conceived was not regular (Justus) ; nor is there any Sejiatus Consuliiim to make it quasi-regular. (G. I, 87, 88.) 1. The husband is a citizen;- the wife is, at the time of marriage, supposed also to be a citizen, but is really a Latin (Latina), or alien (peregrina), or one of the dedititii. (For dedititii, see Book II. Div. 11.) And again, if a Roman citizen marries a Latin or an alien wife through ignorance, believing her to be a Roman citizen, and begets a son, that son is not in his potestas. For indeed he is not even a Roman citizen, but either a Latin or an alien — that is, of his mother's condition. For no one follows his father's condition, unless between his father and his mother there is comibium. But a Senatus Consultum allows him to make a good case ot mistake ; and then both the wife and the son come to be Roman citizens, and thenceforward the son is in his father's potestas. And the rule of law is the same if through ignorance he marries a wife that is one of the dedititii; except that the wife does not become a Roman citizen. (G. i, 67.) 2. Converse case. The wife is a citizen, but the husband is a Latin, an alien, or one of the dedititii. And again, if a female Roman citizen by mistake marries an alien, taking him for a Roman citizen, she is allowed to make good a case of mistake ; and so her son too and her husband come to be Roman citizens, and the son of course instantly passes under the i3.\!asx'% potestas. The rule of law is the same if it is an alien she marries, taking him for a Latin coming under the lex ^lia Sentiaj for this case is specially provided for by a Senatus Consultum. And so up to a certain point if she marries a deditititis, taking him for a Roman citizen or a Latin coming under the lex /Elia Sentia, except indeed that the dedititius remains in his own condition, and therefore the son, although he becomes a Roman citizen, is not brought under his father's /(7/^J/aj. (G. I, 68.) 3. Again, if a Latin woman marries an aUen believing him to be a Latin coming under the lex jElia Sentia, under a Senatus Consultum she can after the birth of a son make good a case of mistake. And so all become Roman citizens, and the son passes at once under his father's potestas. (G. i, 69.) 200 POTESTAS. 4. The same precisely is the rule of law if a Latin in mistake marries an alien woman believing her to be a Latin or a Roman citizen coming under the lex ALlia Sentia. (G. I, 70.) 5. And further, if a Roman citizen, in the belief that he is a Latin, marries a Latin woman, he is allowed, after the birth of a son, to make good a case of mistake, just as if he had married a wife under the lex JLlia Sentia. Those too that, although Roman citizens, believing themselves to be aliens marry aliens, after the birth of a son are allowed by a Senatus Consultum to make good a case of mistake. And when this is done the alien wife becomes a Roman citizen, and the son, who also is an alien, not only comes to be a Roman citizen, but also is brought under his {3.th.ef% potestas. (G. i, 71.) 6. Nay, an alien, too, that has married by mistake, is allowed to make good his case, as is pointed out by a rescript. For a case actually occurred in which an alien married a female Roman citizen, she believing him to be a Latin coming under the lex jElia Sentia, and after the birth of a son obtained on other conditions the Roman citizenship. Then when the question was raised, whether he could make good a case of mistake, the Emperor Antoninus decided by a rescript that he could, just as if he had remained an alien. And hence we gather that even an alien can make good a case of mistake. (G. I, 74, restored.) From what we have said it is clear — (i) That if an alien marries a female Roman citizen, whether in mistake or whether she knows his condition, the offspring of that marriage is by birth an alien. (2) That if, however, it was by mistake that the marriage with him was contracted, this case can be made good under the Senatus Consultum, according to what we have said above. (3) That if, on the other hand, there was no mistake from first to last, but the female Roman citizen knew the condition of her husband, in no case is the status of the husband or son changed. (G. i, 75, restored.) It is necessary to add that a grant of citizenship did not necessarily carry with it the potestas over children born before the grant. It has been observed that when a Latin freedman had a son not less than a year old, he acquired at the same time the riglits of a citizen and of a 'paterfamilias. With regard to aliens. Gains says : — If an alien receive a grant of Roman citizenship for himself and his children, he has no potestas over the children unless they are expressly subjected to his potestas by the Emperor. And this is done only when the Emperor, after inquiring into the case, judges this best for the sons. And if they are under puberty or abroad, the inquiry is very searching and minute. All this is pointed out in an edict of the late Emperor Hadrian. Again, if a man whose wife is pregnant receives a grant of Roman citizenship both for himself and for her, although the offspring is, as we have said above, a Roman citizen, yet it is not in the potestas of the father. This is pointed out in a document under the hand of the late Emperor Hadrian. And therefore, if a man knows that his wife is pregnant at the time he is asking the citizenship for himself and his wife from the Emperor, he ought to ask the Emperor at the same time to allow him the potestas over the child that is to be born. (G. I, 93, 94-) INVESTITIVE FACTS. 20I IV. Legitimation {Legitimatio). It sometimes happens that children at the moment of their birth are not in the potestas of their parents, but are afterwards brought under the potestas. For instance, a natural son afterwards presented to the Curia is subjected to the i&\kv&c'% potestas. A son, moreover, begotten bj' a free woman, whom the father might have married, so far as the laws were concerned, but with whom he only cohabited, is afterwards brought under the father's potestas, if under a. constitution of ours instruments of dowry are drawn up ; and even to others, if they are begotten by the same marriage, our constitution makes a like concession. (J. i, lo, 13.) If the children were old enough to be able to object to the legitimation, their opposition was fatal. They could be brought under the potestas without their consent, but not against their will. Modestinus " inviti filii naturales, vel emancipati, non rediguntur in patriam, potestatem." (D. 1, 6, 11.) Celsus "vel consentiendo vel non contradicendo." (D. 1, 7, 5.) 1. Legitimation by subsequent marriage (legitimatio per sub- ■lequens matrimonium). Legitimation was tbe process by which children born to Roman citizens, not in a regular marriage, and therefore not under the potestas of their father, were brought under his potestas. Legitimation was confined to a single class of children (naturales liheri), the oiFspring of concubinage. (For Concuhinatus, see Book IL Div. IL, Husband and Wife, Appendix.) Concubinage was a species of left-handed marriage, the differ- ence between which and marriage was, in law, inconsiderable. When persons exchanged the lower for the more respectable union, the act was allowed a retroactive effect, and the children born before the marriage were subjected to the potestas. Legitimation by subsequent marriage was first introduced by Constantino (a.D. 335), who enacted that if free-born concubines were married by the men with whom they cohabited, their children born before the marriage should be under the husband's potestas (sui ac legitimi). Zeno abrogated the law of Constan- tine (A.D. 476), reserving the rights of those free-born concu- bines who in A.D. 476 had children. (C. 5, 27, 5.) Legitima- tion, after having existed for 141 years, was thus abolished, and the law continued in this state for 53 years, until Justinian (a.D. 529) revived and amplified the enactment of Constantine. .Justinian pointed out that it was rather hard that the children born of a concubine after marriage should be legitimate to the exclusion of those born before, since it was the affection enter- tained for the offspring of the concubinage that induced the parents to marry. Putting together the laws made at different times by Justinian, the followiag may be stated as the con- ditions of legitimation by marriage : — The marriage must be 202 POTESTAS. attested either by writing or by the settlement of a dowry (dos) ; it must have been preceded by concubinage as opposed to promiscuity, and during the concubinage there must have been no legal impediment to the marriage of the parties. (C. 5, 27, 10.) This last condition was necessary to prevent an evasion of the law, for otherwise persons that were prohibited from marrying could have lived in concubinage, and, when the im- pediment was removed, legitimated their children by marriage. The woman might be a manumitted slave {libertina), (Nov. 89, 8), or even a slave, if the property of the man, the mar- riage operating as a manumission. (Nov. 78, 3.) It was immaterial whether the father had or had not previously to the concubinage any legitimate children. (Nov. 89, 8 ; Nov. 12, 4.) 2. Legitimation by making a natural child a Decurio. — Legiti- matio per ohlationem curiw. This is the first mode referred to in the text of Justinian. The Curia was to the provincial municipalities much what the Senate was to Rome. (0. 10, 31, 36.) The dignity of the Curia was hereditary (C. 10, 31, 44), and the only way of increasing its members was by co-optation. At one time the burdens of a member of the Curia so outweighed the privileges that election to it was considered a punishment. (C. Th. 12, 1, 66 ; C. 10, 31, 38.) The Decurions were compelled to live in their cities (D. 50, 2, 1) : they could not be soldiers or clergymen (C. 1, 3, 12) ; and they were forbidden to sell their lands without the concurrence of a judge as to the necessity of the sale. (C. 10, 33, 1.) As a bribe to induce men to add members to the Curia, legitimacy was given to their natural children. The first step was taken in A.D. 442. Theodosius and Valen- tinian enacted that those who offered their natural children to the Curia, or who gave a daughter in marriage to a decurio, shoiild be permitted to give them during life or on their death the whole of their property. (C. 5, 27, 3.) This narrow privi- lege was extended by Leo and Anthemius A.D. 470, who gave to those children the right of succession to their father if he died without making a will. Justinian (Nov. 89, 2, 1) em- powered any one during his life or by his testament to make his natural son a decurio, and legitimate. But this legitimation was not thoroughgoing ; it made the legitimated child for all purposes a legitimate child of its father, but gave it no claims ADOPTION. 203 on any of his relatives. Its operation was therefore more restricted than the first kind of legitimation. (Nov. 89, 4.) 3. Legitimation by Rescript of the Emperor {per rescriptum principis) was introduced by Jnstinian (Nov. 89, 9) after the analogy of the Bestitutio Natalium (see Book II. Div. I., Freed- men.) That Novel authorised the Emperor to grant on the petition of a father a rescript of legitimation, conferring on him the potestas over any of his natural children when he had no legitimate children, and when their mother was dead or un- deserving of marriage. 4. By testament confirmed by the Emperor. In the case just stated, if the father during his life neglected to apply for a rescript, but intimated in his will his desire that his children should become legitimate, they were authorised to apply for, and obtain, the rescript of legitimation. (Nov. 89, 10.) 5. Adoption. — Anastasius permitted fathers to adopt their natural children, and thereby obtain the potestas over them ; but Justin took away the privilege ; and his decision was followed by Justinian, who observed that it was a cruel in- justice to allow a father, by resorting to adoption, to super- sede his legitimate children. (Nov. 74, 3 ; Nov. 89, 7.) B. The acquisition o{ potestas over another's children. Not only the children born to us {naturales) are, as we have said in our potestas, but those too that we adopt. (J. I, II, pr. ; G. I, 97.) Effect of Adoption. Adopted children, as long as they are held in adoption, are in the position of children born to us. But if emancipated by their adopted father, then neither by the civil law nor as far as regards the Pr^tor's edict are they numbered among his children. (G. I, 136.) And the same principle (applied conversely) governs their relations to the parent to whom they were born, for as long as they are in the adopted family, they are held to be outsiders. But if emancipated by their adopted father, then forthwith their case is the same as it would have been if they had been emancipated by their father to whom they were born. (G. I, 137.) A Roman family, from the legal standpoint, consisted of a Head or Ruler, and of the persons subject to his absolute power. The children of the Head of the family were not legally related to him unless they were in his power ; while, on the other hand, persons unconnected with him in blood, were children for all legal purposes, if they had been brought under his power by the artificial tie of adoption. The family, as a legal unit, was based on the despotic authority of its head. There was doubtless a time, further back than the 204 POTESTAS. earliest records of Roman Law, when the legal was also the moral basis of the family ; when the only tie between man and man was subjection to a common superior. The nearer we get to the fountain-head of our civilisation, the narrower in its scope appears to be the feeling of moral obliga- tion. At first no duty is recognised outside the circle of one's family or clan ; in a higher stage, the city is the limit of social obligation ; to be a stranger (hostis) is to be an enemy ; and even the most enlightened spirits of antiquity rose little above the prejudices of their time. Thixs Plato, while proposing as a humane modification of the rights of the conqueror, that Greek should not enslave Greek, did not ven- ture to extend the indulgence to barbarians, that is, to all outside Hellas. In the more backward and primitive state of society, the one condition of safety was to be a member of an organised group. The family was such a group, and it has accordingly been suggested that the device of adoption was first introduced as a means of enabling outsiders to enter into a family, to share its sacred rites and enjoy its protection. But a consideration of the facts concerning adoption in the Roman law points to the explanation of that form of fictitious relationship in a different direction. It would rather appear from the indications presented to us in the records of law, that the primary object of adoption was to obtain an heir to a childless man, and that fictitious relationship was resorted to only as a substitute in the absence of descendants. In the most ancient form of adoption, the object appears clearly to have been to avoid the extinction of a family by the death of its head with- out heirs. Thus unmarried men could not adopt, nor even married men, unless they had no hope of children of their own. (Cicero pro Domo, 13, 15 ; D. 1, 7, 15, 2.) Adoption may be ranked as an earlier invention than the Will, both having originally the same or a similar object in view — to determine the devolution of an inheritance in the absence of the natural heirs. The oldest form of adoption was called arrogatio, and only persons sui juris could be arrogated. The later form has no other name than adoption {adoptid) ; it is the transfer of a per- son from the potestas of one man to that of another, and there- fore belongs to the class of transvestitive facts. There is this peculiarity in adoption [by the people's authority {per pcpulum)'\ by the Emperor's divine wisdom {per sacrum oraculum). that if ARROGATION. 205 a man has children in his potestas when he offers himself to be adopted by arrogatio, not only is he himself subjected to 'Caz potestas of the arrogator, but his children too pass under \h& potestas of the arrogator and stand in the place of grandsons. For this reason the Emperor Augustus adopted Tiberius only after Tiberius adopted Germanicus, in order that as soon as the adop- tion took place Germanicus should become Augustus's grandson. (J. i, 11, II ; G. I, 107.) I. The form of arrogation. 1. The ancient form. Adoption takes place in two ways : by the people's authority {populi auctoritate) and by the power {imperium) of the magistrate — the Prstor, for instance. (G. i, 98.) By the people's authority we adopt persons sui juris. This kind of adop- tion is called arrogatio j because, y&-j/, the man adopting is asked (rogatur), that is, questioned, whether he wishes the man he is going to adopt to be his legally recognised [Justus) son ; and then the man adopted is asked whether he will suffer that to be done ; and lastly, the people are asked whether they order it to be done. (G. I, 99.) Tlie arrogation took place in the comitia curiaia in the ordinary form of legislation. ' To the person about to be arrogated the formula employed was — Do you formally agree tbat Lucius Titius shall have over you, as over a son, the power of life and death ? To the people — Is it your will, your order, Quirites, that Lucius Valerius should be to Lucius Titius by right and statute a son, as if by birth the child of Titius and his materfamilias, and that Titius should have over him the power of life and death ? This, as I have stated it, is the motion I now put to you, Quirites. The sanction of the Pontiff (Fontifex) was also reqnired ; he was the guardian of the sacred rites (sacra privata), and was bound to guard against the extinction of any such rites by the arrogation of the only representative of a family.^ This mode of arrogation was in active existence during the Republic, and was resorted to by the early emperors, as by Augustus in the adoption of Agrippa and Tiberius. No * Auctorne esses, ut in te F, Ponteius vitae necisque potestatem haheret, uti infilio. Cic. pro Domo 29. " Velitis jubeatis, Quirites, uti L. Valerius L. Titio tarn jure legeque filius sibi siet, quam si ex eo patre, matre que familias ejus, natus esset ; utique ei vitae necisque in eo potestas siet; haec ita, vti dixi, ita vos, Quirites, rof/o." — Aul. GeU. Noct. Att. v. 19. 2 A similar connection between adoption and religion may be remarked in the Hindu law. The laws of Menu expressly state that adoption is allowed only to the childless, and to prevent a failure of the funeral ceremonies. These ceremonies, according to the belief of the Hindus, are necessary for the comfort and repose of the deceased. Now, in the Hindu law, the heir is the person whose duty it is to perform the funeral sacrifices, and thus adoption comes to be a mode of appointing an heir. We find also in Athens that the primary object of adoption was to ensure that some one should make the proper sacrifices and offer the funeral cake. 20S POTESTAS. other form is mentioned by Ulpian or Gaius, although the curiae were represented in their time probably only by thirty lictors. 2. At some period unknown, the fiction of popular legislation was dropped, and arrogation was effected directly by rescript of the Emperor. Adoption takes place in two ways ; either by imperial rescript, or by the power of the magistrate. By the Emperor's authority we adopt men or women that are stti juris. This kind of adoption is called arrogatio. (J. i, II, I.) II. Restraints on arrogation. 1. Adoption by the people's authority takes place nowhere but at Rome. But the other form is allowed in the provinces too, before the governors. (G. I, loo.) 2. The arrogator must be married {Cic. pro Domo, 13, 15), and upwards of sixty years of age, unless his health is bad, or some other reason renders it probable that he may die childless. (D. 1, 7, 15, 2.) In adoption, as opposed to arrogation, there was no such restraint ; unmarried persons could adopt others who were alie.ni juris. (D. 1, 7, 30.) 3. Arrogation was regarded as a sitbstitute for progeny, and accordingly a man could not arrogate more than one person, or any even, if he had legitimate children. (D. 1, 7, 17, 3 ; D. 1, 7, 15, 3.) 4. Women could not be present in the Comitia, and thus, could not be arrogated ; but when arrogation was allowed by rescript they could. (Ulp. Frag. 8, 5 ; D. 1, 7, 21.) Again, adoption by the people's authority is not in use for women, accord- ing to the better opinion. But women \i.e., alieni juris] are usually adopted before the Praetor, or in the provinces before the Proconsul or the Legatus. (G. I, loi.) 5. A tutor or curator could not arrogate any one that had been under their guardianship, otherwise a door to malversa- tion would have been left open. (D. 1, 7, 17, pr.) 6. Although a person below or above the age of puberty could be adopted, no one under that age could be arrogated. (Ulp. Frag. 8, 5.) Again, adoption of a boy under puberty by the people's authority has some- times been forbidden, sometimes allowed. Now, in accordance with a letter by the most excellent Emperor Antoninus to tht pontijices, if there seems to be a legally recognised ground of adoption, under certain conditions it is allowed. But before the Praetor, and in the provinces before the Proconsul RESTRAINTS ON ARROGATION. 20/ or Legatits, we can adopt a person (i.e., alieni juris) of any age. (G. i, I02.) When a boy under puberty is adopted by arrogation, the imperial rescript of authorisation is not granted until the nature of the case has been ascertained. Strict inquiry is made as to the object of the arrogation, whether it is honourable and for the good of the ptipilhis. And even then it takes place under certain conditions, (i) The arrogator must give security to a public officer {persona publico), a notary namely, that if the pupillus dies under puberty he will restore his goods to those that, if no adoption had taken place, would have been his heirs. (2) Again, the arrogator cannot emancipate them unless, on the nature of the case being ascertained, they prove worthy of emancipation ; and then he must restore them their goods. (3) And further, if the (adopted) father on his deathbed disinherits the son, or in his lifetime emancipates him without grounds the law will recognise, he must by law leave him a fourth part of his goods, over and above the goods that are brought to him by his adopted son, either directly when adopted, or in enjoy- ment at a later time. (J. I, 11, 3.) The pe7'sona puhlica here spoken of was at first a slave, and, according to the rules of law the benefit of a promise made to a public slave was given to any one of the public in whose behalf it was made. The age of puberty was fixed at fourteen for boys and twelve for girls. Ulpian tells us that the inquiries mentioned in the text (causa cognita) were directed to the motive of the arrogator — whether the person arrogated was a relative or the object of a genuine affection ; to the respective fortunes of the parties — whether the person arrogated was likely to gain by the trans- action, and to the general character of the arrogator. (D. 1, 7, 17, 2.) The poverty of the arrogator was not a complete barrier, if he were inspired by honourable and undoubted feelings of kindness. (D. 1, 7, 17, 4.) If security were not given, an action for damages lay against the arrogator. (D. 1, 7, 19, 1.) Tkansvestitive Fact. (Adoptio.) I. Adoption as a transvestitive fact. 1. Before Justinian. A man is allowed to adopt some one as his grandson or granddaughter, or great-grandson or great-granddaughter, and so on, although he has not a son. And another's son he may adopt as his grandson, or another's grandson as his son. But if he adopts some one as a grandson, to be son, as it were, to his own adopted son, or to a son by birth in his potestas, in that case the son too must consent, and not have a suus heres brought in to him against his will. But, on the contrary, if a grandfather gives his grandson by his son to be adopted, the son's consent is not needed. In very many respects, too, the son adopted simply or by arrogation is put on the same footing as a son born in a regular marriage. And therefore, if a man adopts some one by the 208 POTESTAS. imperial authority, or before the Praetor or provincial governor, and that some one is not an outsider, he may give him to another to be adopted. (J- 1,11,5-8.) Effect of adoption on children en ventre sa mere. You must know, too, that if your daughter-in-law conceives by your son, and you afterwards emancipate the son, or give him to be adopted during your daughter-in-law's pregnancy, none the less her offspring is born in your ^otestas. But if conception took place after emancipation or adoption, it is to the emancipated father or adopted grandfather's /o/'^j'/iSJ that the offspring is subjected. (J. i, 12, 9.) The grandson conceived by a son once or twice conveyed by mancipation, although born after the third conveyance of his father, is yet in his grand- father's potestas. It is by the grandfather, therefore, that he must be emancipated or given to be adopted. But a grandson conceived by a son now 171 mancipio by a third conveyance is not born in his grandfather's potestas. Labeo, indeed, thinks that he is in mancipio of the person to whom his father belongs. But the rule of law in use is this : that as long as his father is in 7nancipio his rights are suspended ; if his father is manumitted after conveyance, the grandson falls \md^ex\v\% potestas j but if he dies still z« mancipio,t\i& grandson hecomes sui juris. (G. i, 135.) And as regards a child conceived by a grandson, although but once conveyed by mancipation, the rule is the same as for a son conveyed for a third time. For, as we said above, what three conveyances effect in the case of a son, is effected by one in the case of a grandson. (G. i, 135 a.) 2. Justinian introduced a profound alteration, doing away, .in effect, with the peculiar characteristics of adoption. The pur- pose of adoption was to enable a man to exercise the potestas over one that was not his child. But now, under our constitution, when a father by birth gives a filius- familias to an outsider to be adopted, the rights of potestas enjoyed by the father by birth are far from being lost. Nothing passes to the adopted father, nor is the son in his potestas, although in case of intestacy we have bestowed on him the rights of succession. But if the father by birth gives the son to be adopted not to an outsider but to his son's grandfather on the mother's side, or (if the father by birth has himself been emancipated) even to the grandfather on the father's side, or to the great-grandfather in like manner on either side, — in this case, because the rights both by birth and by adoption meet in one person, the right of the adopted father remains unshaken. For the bond is due to the ties of birth, and is drawn the closer by a lawful mode of adoption. And therefore in such a case the son comes both into the household and into the potestas of the adopted father. (J. I, 11,2.) Justinian legislates, in this constitution, in a manner that plays havoc with the old juridical character of adoption, but was not unsuited to the circumstances of his day. Adoption had lost its primitive character ; there were no sacred family ADO-PTION. 209- rites to maintain ; theTe was, in short, no reason for adoption; except merely the desire of childless persons to attach others to them by the ties of interest and affection. Like other antiquated institutions, it produced cases of occasional great hardship. A youth is given, let us suppose, by his father in adoption ; the person adopting him soon afterwards emancipates ' him. The result was that the youth was out of both families, and was postponed in the succession to his father's inheritance ' to more distant relatives. To remedy this evil was the purpose _ of Justinian's constitution, as summarised in the text. Such being Justinian's object, it naturally followed that lie'-" would make a difference in the case of arrogation. A person arrogated being, as has been said, under no one's potestas, in no one's family, can lose nothing by giving himself in arroga-. tion. Therefore it was enacted (C. 8, 48, 10, 5) that the old law should remain in force in the case of arrogation ; and' consequently the arrogated pei'son fell under the potestas, and' became a member of the family of the person that arrogated him. The enactment, with the same purpose, exempts from' the change those cases where a father or other ancestor adopted a child or other descendant. Such cases were necessarily rare, but they might occur. A has a, daughter B, whose son C is under the potestas of his father. The father gives C in adoption to A. A, being an ancestor, will acquire the potestas, A has a son B whom he emancipates. After fcinancipation B has a daughter C, born under his potestas. B gives C in adoption to A. A thus acquires the potestas over 0. A has a son B, and B's son C, both under his potestas. A emancipates B, but not C A afterwards gives C in adoption to B. B acquires the potestas over 0. ■II. The form of adoption of those alieni juris. 1. The ancient fictitious sale. This was a fictitious sui*'' founded on the law of the XII Tables, which imposed a for- feiture of the potestas on the father who subjected a son three times to a sale. And further, parents, when they have given their children to be adopted, cease to have them in their potestas. A son given to be adopted is thrice, conveyed by mancipation, with two manumissions between ; just as is usually dorie when a father lets a son go from his potestas, and so makes him sui juris. Next, he is either reconveyed to the father, and from him before the ' Praetor claimed by vindicatio as a son by the adopted father, and in the absence of any contrary claim is made over by the Praetor to him as his son ; or he is not reconveyed to the father, but by an in jure cessio is given up to; the claimant ivuidicanti) by the person holding him under his third con- veyafice by mancipation. But undoubtedly it is more convenient to have O 2IO POTESTAS. the reconveyance to the father. As regards other descendants, rtiale or female, one conveyance is enough ; and they are either reconveyed to the ascendant or not. The same formalities are observed in the provinces before the governors. (G. i, 134.) The form of transfer by mancipation is given by Gains. (G. 1, 119.) (See Mancipium.) Adoption by sale thrice repeated involved two different stages, which ought to be kept separate. A has a son B, whom he proposes to give in adoption to C. B is in A's potestas, and it is desired to take him out of A's potestas and place him in B's potesias. This is a twofuld operation. (1.) How is B to be taken out of A's potestas! It is at this stage of the transfer that the law of the XII Tables has been forced into use. A emancipates B to C, and C manumits B by the vindicta, as in the manumission of a slave. The effect of this manumission is that B relapses into the potestas of A. Again A emancipates B to C, and again C manumits B, thus restoring him to the potestas of A. For the third and last time A mahcipates B to C, and by this third sale forfeits the potestas. B is now held by C as his property (in mancipio), as a kind of chattel ; but it is desired not to make him a chattel, but a son of C. Then — (2.) How is B to be converted from a chattel [mancipiiim) to a son ? In other words, how is B, who is no longer under the potestas of A, to be brought under the potestas of C ? Gaius in the text points out two ways in which this might be done. (1°) The 6r8t consists of the following steps : — After the third sale, C mancipates B back again to A, who now retains B, not as his son, but as property {in mancipio). C now appeals to the Prsetor, and by the proper suit {vindicatio) claims B as his son. A makes no opposition, and therefore the Praetor adjudges B to C as his son. now holds B under his potestas by a judgment of a court of law. This is the procedure recommended by Gaius in the text. (2°) The other mode is somewhat different, and will most easily be understood by giving the steps from the very beginning : — (a) A mancipates B to C or D, and C or D manumits B. (6) A again mancipates B to C or D, and C or D manumits B. (c) A mancipates B to D. {d) C sues (vindi^at) D, and claims B as his son. (e) D makes no objection. (/) The Praetor thereupon adjudges B to C as his son. This form might be resorted to before any municipal magistrate that had jurisdic- tion over the ancient forms of procedure —if jii actitmes. (Paul, Sent. 2, 25, i.) 2. Adoption by simple declaration before a magistrate. By the magistrate's authority we adopt those in the potestas ai their ascendants, whether of the first degree— children, namely, as a son or daugh- ter ; or of a lower degree, as grandson, granddaughter, great-grandson, great- granddaughter. (J. 1, II, I ; G. I, 99.) In the time of Diocletian, it appears (C. 8, 48, 4) that adop- tion could not be effected by written instruments, but only by the solemn form in the presence of the Praetor. Justinian abolished the sales and manumissions, substituting a mere declaration, recorded in writing. (C. 8,48, 11, A.D. 530.) But if a father gives a son that he has in potestate to his father or grand- RESTRAINTS ON ADOPTION. 211 father by birth to be adopted, in accordance with our constitutions on this subject — that is, if this is declared with due formalities before a qualified judge in the presence of both adopted and adopter without opposition from either, — then the jus po/esiaiis is at an end as regards the father by birth. But it passes over in such a case as this to the adopted father ; for in his person adoption, as we have already said, is most full. (J. i, 12, 8.) An informal adoption could be confirmed on petition to the Emperor (D. 1, 7, 38), but only after hearing any objectors who might offer themselves. (D. 1, 7, 39.) III. Restraints on adoption (also on arrogation). 1. The question that has been raised, whether a younger man can adopt an older, is common to both forms of adoption. (G. i, 106.) A younger man, it is settled, cannot adopt an older. For adoption copies nature ; and it is a gross violation of nature that a son should be older than his father. He therefore that is taking to himself a son, whether by arrogation or by adoption, ought to be by the full period of puberty — by eighteen years, that is, his senior. (J. i, 11, 4.) So in adopting a person as a grandchild, there must be a disparity of not less than thirty-six years. 2. Women, too, cannot adopt ; for not even their children by birth are in their poiestas. But by the Emperor's goodness they are allowed to adopt, to comfort them for children they have lost. (J. i, 11, 10 ; G. i, 104.) This permission was granted by Diocletian and Maximian, a.d. 291. The woman did not acquire the potestas, but only sucb rights as she would have had if the person adopted had been her legitimate child. (C. 8, 48, 5.) 3. It is common to both forms of adoption that even those that cannot beget (as spadones) can adopt, but those that have been made eunuchs cannot. {J.1,11,9; G. I, 103.) 4. Adoption could not be repeated. One that has adopted a person, and given him in adoption, or emancipated him, cannot afterwards adopt him. (D. 1, 7, 37, 1.) But a son adopted either by authority of the people or before the Praetor or a Provincial Governor, may be given over to some one else to be adopted. (G. i, 105.) Adoption by Testament never existed. Julius Cassar did indeed name C. Octavius as his son, but the direction had no validity except as an injunction to the people to sanction the act. It required to be consummated by a lea curiata. Another case is mentioned in the Digest. (D. 37, 14, 12.) Seius died, leaving a will, in which he named his freedman Julius his son, and named him heir along with his other children. The nomination was void. 212 POTESTAS. C. Forfeiture of independence for ingratitude. Sons or daughters who had been emancipated from the poiestas were not absolved from all ties, and, as in the case of slavery, might forfeit their independence. This forfeiture was the penalty for grossly insulting the paterfamilias who had emancipated them, or doing him some grave injury. (C. 8, 50, 1 ; C. Th. S, 14, 1.) Divestitive Facts. A. Voluntary divestitive facts by the act of the parties [ISmancipatio]. Emancipation was a voluntary act on both sides ; the pater- familias could not (ordinarily) be compelled to emancipate his filiuxfaniilias, and the filiusfamilias could not be emancipated against his will. (U. 1, 7, 31 ; G. 8, 49, 4 ; Nov. 89, 11.) Children, whether by birth or by adoption, have almost no way of forcing a parent to let them go free from ]:i\s poiestas. (J. I, i2, lo.) An exception was made when a person under the age of puberty had been arrogateri ; on reaching that nge he was allowud to prove that the arrogation was injurious to his interests, and the arrogating ^aier/amiZias was obliged to emancipate him. (D. 1, 7, 32 ; D. 1, 7, 33.) We ought to note further that a man's discretion in choosing whom he will free from his poiestas is altogether unrestrained. If, for instance, he has a son and a grandson or granddaughter by him in his poiestas, he m^y let the son go free from \ht poiestas, but keep the grandson or granddaughter. Conversely be may keep the sonmhis potcsias,h\\t manumit the grandson or granddaughter ; and of course this must be understood of a great-grand-, son also, or a great-granddaughter. Or finally, he may make all sui juris. (J. I, 12, 7 ; G. I, 133.) Forms of Emancipation. 1. The most ancient form, based on the triple sale. By emancipation, too, children cease to be in iht potesias of their parents. A son must be thrice conveyed by mancipation before he goes out from the parental poiestas j all other children, whether male or female, once only. For the law of the XII Tables refers to the person of a son alone, when it speaks of three conveyances, in these words : — " If a father sells a son thrice, let the son be free from the father." It is done thus : — The father conveys the son by mancipatia to a third person ; that third person manumits the son bv vifidicia, and thereupon the son returns into his father's potesta^. The father a second time conveys the son either to the same third person or to some one else (usually to the same) ; he again in like manner manumits the son by vindicta, and thereupon the son once more returns into his father's poiestas. Then a third time the father conveys him either to the same third person or to some one else (but usually to the same).; and by that third con- EMANCIPATION. 213 : veyance the son ceases to be in the father's potestas, even although he is not ;yet manumitted,; but is still zVz causa mancipii. (G. i, 132.) So far the account in the text exactly agrees with the first part of the ancient form of adoption, and there the text ends. The rest may be supplied from Gaii Epit. 1, 6, § 3, 4. The ■person to whom the son is mancipated is called fiduciary father {paterjiduciarius), because of the duty he has to perform- If the fiduciary father were to manumit the son, whom he holds in mancipio, he would become in law the patron of tlie son, and acquire a patron's rights of succession to the emancipated son's property. The ancient law Avas strict and formal ; it looked only to the persons that figured in its ceremonial observances. Thus it was the individual manumitting a slave or son that became the patron, even although he had no interest in the slave or son, but acted in the fictitious pro- ceedings the part of a mere lay figure. Such a result it was usually an object to avoid. A father emancipating a son would naturally wish to retain the rights of a patron, and not to cut himself off from the inheritance of his son. This object was accomplished very simply. After the third sale, the fiduciary father mancipated the son to the natural father, who thereupon, holding his son in mancipio, himself performed the ceremony of manumission by the vindicta, and became his son's patron. At some period the Prsetor intervened to prevent tlie fiduci- ary father from fraudulently accjuiring the rights of patronage by manumitting the son, and made the natural father in every instance the patron. (J. 1, 12, 6.) The steps in a formal emancipation were as follows :— A desires to emancipate his son B. C is the paterfiduciarius, the fictitious purchaser. (1) A nianoipates B to C, and C manumits B by the vindicta. (2) A again mancipates B to C, and C manumits B as before. (3) A again mancipates B to C. (4) C now mancipates B to A. (5) A manumits B, and acquires tho rijjhts of patronage. 2. The Anastasian Eescript, a.d. 503. — The old formal emancipation necessMrily required the presence of the parties to go through the fictitious sale. Anastasius made provision whereby a paterfamilias away from home miglit emancipate his children. He did not abolish the old forms, but introduced this novelty as an additional means of releasing children fi-om the potestas. A petition must be sent to the Emperor, find his favourable answer obtained. The answer must be registered, produced in a court haviug jurisdiction ovtr emancipation, and deposited along with the petition to the Emperor ; and if 2 14 POTESTAS. , the pei'sons emancipated were not infants, their consent mnst be given. The act was perfected by the formal consent of the Emperor. (C. 8, 49, 5.) 3. Change by Justinian. Formerly emancipation was effected either according to the old usage of law (by imaginary sales, that is, with manumissions between), or by imperial rescript. But our forethought has by a constitution made a change in this for the better. And now the fiction of early times is done away with ; parents go direct before a qualified judge or magistrate, and let their sons or daughters, or grandsons or granddaughters, and so on, go free from their power [manus]. And then, under the Praetoi-'s edict, over the goods of such a son or daughter, grandson or granddaughter, manumitted by the parent, precisely the same rights are guaranteed to the parent as are given to a.^aifomts over the goods of his freedman. And further, if the child, son, daughter, or whatever it may be, is still under puberty, the parent by the manumission becomes its tutor. (J. i, 12, 6.) B. Divestitive facts by operation of law. Under this head are grouped the various facts that dissolved the polentas, irrespective of the wishes of the paterfamilias. These facts are either not acts of the paterfamilias or filius- familias, or acts not done witli a view to dissolve the potestas. I. The death of a person subject to any potestas is a divestitive fact Avith reference to that person ; but the death of the pater- familias does not always release a filiusfamilias from the potestas. Let us see now how persons alieni juris are freed from those rights over them. As for slaves, how they are freed from potestas may be understood from what we have said above in regard to their manumission. Those again in an ascendant's /oto/aj-, on his death become sin juris. But here a distinction is taken. For on the death of a father, undoubtedly in every case his sons or daughters become sui jttris. But on the death of a grandfather it cannot be said that in every case his grandsons and granddaughters become sui juris, but only if after the death of the grandfather they are not to fall under the potestas of their father. Therefore, if on the death of the grand- father, their father is both alive and in the potestas of his father, then after the decease of the grandfather they come to be in the potestas of their father. If, however, their father, at the time the grandfather dies, is either already dead or out of his father's potestas, then the grandchildren, because they cannot fall under their fathei-'s /£P/«j/(Zj, become sui juris. (J. i, 12, pr. ; G. I, 125-127.) II. Any change of a capital status (capitis deminutio) suffered by a filiusfamilias takes away the potestas of his paterfamilias ; and the same result is produced by any change of a capital status of the paterfamilias. A slave on manumission suffers no mimttio capitis, because he had no caput. (J. I, 16, 4.) DIVESTITIVE FACTS. 215 Wliere the change is one of dignity rather than of status, there is no tninutio capitis. And therefore it is agreed that when a man is removed from the Senate he undergoes no tninutio capitis. (J. 1,16, 5.) Capitis deminutio is a change from one's former status. It is found in three forms, maxima, wz'wor (which some call media), and minima. (J. 1, 16, pr.; G. I, 159.) As caput includes the three principal heads of status, — ^liberty, citizensliip, and family rights, — it may suffer a reduction accord- ing as one or more of these elements are taken away. The withdrawal of liberty necessarily involves the loss both of citi- zenship and of family rights. This is, in fact, the entire destruc- tion of caput, and is called the greatest reduction of status (maxima deminutio capitis). The loss of the second element, citizenship, carries with it the loss of family rights, but not of liberty. It is called the intermediate reduction of status, media minutio capitis. The third element, family rights, may be changed or modified without affecting the two others. This is called the least reduction of status {minima deminutio capitis). The changes of status that operated as divestitive facts of the potestas may be arranged under those three heads. 1. The loss of liberty — Maxima deminutio capitis. This list includes the investitive facts of slavery. (^See Slavery, Inv. Facts.) Maxima capitis deminutio occurs when a man loses at once his citizenship and his freedom. This happens in the case of those that are made servi poenae by a harsh sentence ; freedmen, for instance, condemned for ingrati- tude toward their patrons, or freemen that have suffered themselves to be sold in order to share the price. (J. I, 16, I ; G. i, 160.) A man made poenae servus ceases to have his sons in his potestas. They are made semi poenae that are condemned to the mines or exposed to wild beasts. (J. i, 12. 3.) This happens, for instance, in the case of those that quit their father- land and go abroad, either not giving in their names at the census, or shirk- ing service as soldiers. ThoEe, too, that stay, but suffer themselves to be sold as slaves, become under a Senatus Consultum the slaves of those they meant to defraud (and thus undergo maxima capitis deminutio). And so do the freeborn women that under the Senatus Consultum Claudianum be- come slaves to those masters whose refusals and warnings they have defied by having intercourse with their slaves. (G. i, 160, as restored.) Exception. — If an ascendant is taken by the enemy, although he becomes the enemies' slave, yet his descendants' rights remain in suspense because of the jus postliminii. For those taken by the enemy, if they return, regain all their early rights. The ascendant, therefore, if he returns, will have the descen- dant in \\\i potestas; for the fiction of postliminium is that the captive has always been in the state. But if he dies there, the son becomes svi juris [whether this dates from the death of the ascendant among the enemy, or from the time he was taken, may be doubted] ; and this dates from the time '2 1.6 POTESTAS. ihis' father was taken. And in like manner, if the son himself or grandson is •taken by the enemy, we say that, because of the Jus posiUmznu, the jus fotestatis, too, of the ascendant is in suspense. The word postliminium icomes from Kmen (a threshold), and post (afterwards). And the man that is. taken by the enemy,^and afterwards comes within our bounds, returns, as we rightly say, by postliminium. For as the thresholds in houses form a bound to the houses, so the bound of the Empire is looked on by the ancients as a threshold. Hence also comes the word limes, a sort of bound and end. And from it comes the word postliminium, because the man 'returned within the same threshold whence he had been lost. A captive, too, recovered when the enemy is conquered, is held to return by posi- liminitim. (J. i, 12, 5 ; G. i, 129.) ''' ' Jus posttiminii. — The rights of a person who by the hard fortune of war was made ,ai captive lemained in suspense. ISy the fiction of postliminium, introduced doubt- ilessi by the jurisconsults {vaturalis aequitas, D. 49, 15, 19, pr.), if the captive returned, he was placed, as far as might be, in the same position as if he had never 'I'eft his native country ; but if he died in captivity, this fiction had no place, and he Was therefore held to have died a slave. >,. If only the interests of the captive had been at stal^e, probably no effort would have been made to modify the law ; but the death of a freebom citizen as a slave had an injurious effect upon his family. If a slave, how could his children inherit from him? (D. 50, 16, 3, 1.) To stretch the fiction of postliminium to this cise seems to have been too bold a course for the jurisconsults, and accordingly the knot, was left to be cut by statute. In B.C. 81 the lex Cornelia created a fiction analagous to, but extending further than, postliminium. It provided that if a captive died in captivity hia death should be held to date, not from the actual moment of his decease, but from the time he was captured ; so that, although he lived a prisoner, he died free. (D. 49, 15, 18.) This convenient fiction prevented the ill consequences that would have resulted from striking out in a family a link in the chain of hereditary succession. The fiction of postliminium applied when persons or property were taken by an enemy or a foreign power, and afterwards returned or were recovered. It was not essential that there should be a state of war : it was sufficient if a foreign state, bound by no treaty of friendship with Home, seized the person or property of any Roman citizen. (D. 49, 15, 12, pr.) But capture by robbers or pirates, or by one of two parties in a civil war, did not change the legal porfition of the persons or property seized : the persons in law continued free, the property in law still belonged to its rightful owners, and consequently no occasion arose for the fiction of postli;ninium.. (U. 49, 15, 21, 1.) The necessity for such a fiction arose from the fact that ancient law regarded capture in war as a lawful title to the person as well as the property of the enemy. A Roman taken prisoner was regarded by his own law as a slave, as W3II as by the law of the state that made him prisoner. Consequently, while in a state of captivity or slavery, he could acquire no rights, and the period of his captivity ■ was a period of civil death. But if the capture were not lawful, the legal caoacity of the person remained unimpaired, and he was not debarred from the acquisition of rights, although he was prevented from the exercise of them. The fiction of postliminium applied both to persons and property taken by the enemy, but there is convenience in taking the two cases separately. As applied to free persons made captives and slaves, postliminium has by modern writers been called activum ; applied to slaves or other property taken by an enemy, passivum. 1. Postliminium in case of free persons taken prisoners and made slaves. Such persons do not get the benefit of the fiction unless thoir capture has been against their wiU. (C. 8, 61, 19.) JUS POSTLIMINII. 217 '. i '.. Soldiers who surrendered with arms in their hands wore, held to be made captive by their own will. (D. 49, 15, 17.) So, of course, deserters. (D. 49, 15, 19, 4.) A treaty of peace stipulated for the return of all prisoners of war. Whoever remained with the enemy after the return of peace was held to be in voluntary cap- tivity. (D. 49, 15, 20.) A son under potestas deserts to the enemy. Although in regard to his paterfamilias he may be looked on as property (D. 49, 15, 14), still the law preferred to view him simply as a citizen, and therefore his return did not again bring him under the potestas. The reason assigned is quaint : that if the father loses him, it is no more than his fatherland has done ; and that with the Romans from of old discipline held the first place, parental affection the second. The decision is sound enough without the aid of these somewhat ponderous fictions. (D. 49, 15, 19, 7.) , A person is entitled to the benefit oi postliminium y^hcn he has returner), by what- ever means, within the frontier of his own country, or of a friendly power (D. 49, 15, 19, 3), provided he has no intention of returning to the enemy. (D. 49. 15, 26.) Thus Regnlus was sent from Carthage to beg for favourable terms of peace to the Carthaginians. With the full intention of returning, he gave advice to continue hostilities, and returned. His status as a captive was not for a moment affected by his absence from Carthage, since he had the intention of returning. {D. 49, 15, 5, 3.) The effect of posUiminiwrn is that the returned captive enjoys all the rights that have accrued to him during the period of his captivity. A woman is made captive and enslaved. During her captivity her mother dies. On returning from captiviby she can claim her mother's property as hers. (C. 8, 51,14.) A is taken captive while his wife is with child. She gives birth to a son (B), who grows up, mai'ries, and has a child (C). After the birth of C, A returns. C is under fhepoUstas of A. (D. 49, 15, 23.). A husbj.nd and his wife are taken captive. In captivity she gives birth to a child. On their return this child falls under its father's potestas, although it was born of cap- tive parents, and therefore a slave. (D. 49, 15, 25.) A husband is made a prisoner. On his return he finds his wife married to another. He cannot claim t)is wife, because marriage rested S(tlely upon the consent of both parties ; but his wife is liable to the penalties attached to improper repudiation. (D. 49, 15, 8 ; D. 49, 15, 14, 1.) 2. Postliminium, as applied to property, had a somewliat different shade of meaning. The capture of goods or land by an enemy operates as a divestitive fact of the ownershio. After capture the former owner has no longer in law any right. If, however, the property is recovered from the enemy, such recovery is made a re-investitive fact to the former owner. When the enemy was expelled from land occupied by them, the land reverted to its former owners, and was not confiscated or given as prize of war. That land only was to be confiscated which was t.aken from the enemy. (D. 49, 15, 20, 1.) In like manner, slaves were restored to their former owners. (C. 8, 51, 10 ; D. 49, 15, 19, 5.) Property thus restored was accompanied with all burdens and limitations. Thus, if it was subject to usufruct, the usufruct revives. (D. 7, 4, 26.) Postliminium was admitted in favour of land, slaves, ships of war or merchant ships— not, however, fishing vessels or pleasure yachts (D. 49, 15. 2, pr.) ; and horses (D. 49, 15, 2, 1) ; but not armour, which could not be lost without disgrtice (D. 49, ■ 15, 2, 2), nor clothes. (D. 49, 15, 3.) A prisoner taken from the mines was sent back to hia punishment. (D. 49, 15, 12, 17.) 2l8 POTESTAS. 2. Liberty is retained, but citizenship lost. Media capitis deminutio. V. Latin colonists. In the old times, when the Roman people were still planting colonies in the Latin districts, a man that by a father's command had gone to join a Latin colony went out in that way from under the potestas. For they that thus withdrew from the citizenship of Rome were received as citizens of the new state. (G. i, 131.) 2°. Outlawry (aquae et ignis interdictio), at first excommiini- cation of persons goiug into exile to avoid a criminal prosecution. The deminutio capitis is minor (lesser) or media (intermediate) when citizenship is lost, but freedom retained ; as in the case of a man shut out from the use of fire and water, or transported to an island (used as a penal settlement). (J. i, 16, 2 ; G. i, 161.) Since a man, that for some crime is shut out under the lex Cornelia from the use of fire and water, loses thereby his citizenship, it follows that because he is in that way removed from the number of Roman citizens just as if he were dead, his children cease to be in his potestas. For reason will not suffer a man in the condition of an alien to have a Roman citizen in his potestas. And by parity of reasoning, if a man in his father's potestas is shut out from the use of fire and water, he ceases to be in his father's potestas. For equally reason will not suffer a man in the condition of an alien to be in a Roman ia.'Cat^z potestas. (G. i, 128.) 3°. Deportation. Deporlatio insulae. Callistratus included both deportation and simple banishment among tlie punishments that involved the loss of liberty. (D. 50, 13, 5, 3.) But Justinian hulds a milder view. Since a man that for some crime is transported to an island loses his citizenship, it follows that because he is in that way removed from the number of Roman citizens just as if he were dead, his children cease to be in his potestas. And by parity of reasoning, if a man in his father's potestas is transported to an island, he ceases to be in that potestas. But if by the Emperor's goodness they are restored, they regain in every respect their early status. (J. i, 12, i.) Deportation to an island was introduced by Augustus to avoid the ill conse- quences of allowing a crowd of banishnd men to meet wherever they pleased. It was banishment for life. (D. 48, 22, IS, 1.) The deported prisoner could buy and sell, and enter into all the contracts that were considered to arise fium the J as Gentium. (D. 48, 22, 15, pr.) Fathers that are banished {relegati) to an island, keep their children in 'ii\€v[ potestas. And conversely, children that are banished remain in their parent's /o/«j/rtJ. (J. i, 12, 2.) llelegation or exile (exWium) is =■ prohibition ngainst entering one's province or Rome, or any particular district, either for life ur for a limited term. (D. 48, 22, 14.) CAPITIS DEMINUTIO. 21$ It may also be restriction to an island or to any particular place (latafuqa). (D. 48, 22, 7 ; D. 48, 22, 5. ) It involved no forfeiture of property or loss of status, and was simply a restriction of locomotion. (D. 48, 22, 4 ; D. 48, 22, 18.) 4°. Desertion to the enemy. (D. 4, 5, 5, 1.) 3. Capitis deminutio minima. Capitis deminutio is minima (least) when both citizenship and freedom are kept, but the man's statics undergoes a change. For instance, when persons sui juris come to be alieni juris, or vice versa; [in the case of persons adopted, of women that make a coemptio, and of persons given by mancipation, or manumitted therefrom. So far does this go, that every time a man is conveyed by mancipation, or manumitted, he undergoes a capitis deminutio\. (J. i, i6, 3 ; G. 1, 162.) Capitis deminutio. — The meaning of this expression, like that of the cognate term, status, has given rise to much controversial writing. The difficulty in the word status is that it is undoulitedly used in various senses, with a narrower or wider extension of meaning, and can h.irdly be restricted to any precise technical signification. Caput is of narrower import, and relates specifically to three things — liberty, citizenship, and position in a family. To these three elements corresponds each of certain possible alterations, and hence there are three degrees in which caput may be lesserud. 1. The first question to be determined is, whether the phrase, capitis deminutio, represented a real, or only a verbal, generalisation ; in other words, whether a change of status entailed any legal consequences on account of its being a capitis deminutio. Thus, arrogation had certain specific legal effects ; it subjected a person who was sui juris to the potestas of another ; but had it auy conseLjuences, not as arrogation, but as a capitis deminutio? Obviously, if this question be answered in the negative, and if the same answer must be given in regard to every other change of status, it follows that there is no legal importance whether to be attached to the phrase capitis demi- nutio. As a phrase, it may once have been elegant and serviceable, although now obscure ; but the question whether a particular change of status is a capitis deminutio would not be of the smallest consequence ; and a controversy on the subject would be a mere logomachy. The language of Gains rather encourages the belief that the Boman jurists did attribute some effect to a capitis deminutio (G. -3, 83 ; G. 4, 38) ; but in the time of Justinian (J. 3, 10, 1) there was apparently only one case (the obligatio operarum f)f a manumitted slave) where the slightest importance attached to a question of deminutio capitis. The legal consequences, if any, of a capitis deminutio, were so insignificant as scarcely to call fur notice. This helps, therefore, to reduce the importance, if it does not remove the difficulty, of the second question. 2. What was meant by capitis deminutio ? According to Gaius, it was simply a change of status {capitis minutio est status permutaiio). (D. 4, .'), 1 ; G. 1, 159.) Savigny proposes to .imend this definition by adding — a change for the worse. In a general view, this addition corresponds to the facts. Thus a change from liberty to slavery is undoubtedly a change for the worse ; so is it to lose the rights of citizen- ship. When 'A paterfamilias gave himself in arrogation, the change may be described as a descent in legal capacitj* ; so if a woman sui juHs fell under the manus of her husband. Again, a son nndev potestas given by his father, even if only for form's sake in manciiiio, falls into a lower class. We can thus understand how the transvestitive fact of adoption and the divestitive fact of emancipation should equally be considered a capitis deminutio, because the process required that the children should remain for a iirnn in mancipio. (D. 4, 5, 3, 1.) On the other band, o, son that became sui juris by the death of his father, inasmuch as he obtained his independence without passing through the lower stage of inancipium, did nut suffer a capitis deminutio. (D. 14, 6, '2 20 POTESTAS. S,'4.) In like manner, a vestal virgin or Flamen Dialis, who was released from the potestaa by elevation to ofEoe without going throngh any form of emancipation, was held not to suffer a capitis deminutio. So far these examples go to prove that capitis deminutio means a descent from a higher to a lower status, — from liberty to slavery, from independence to subjection {potestas or manus), or from a higher to a lower form of subjection potestas or manus to mancipium. On the other hand, elevation to independence, provided it was not achieved by passing through the state of man- cipium, was not a deminutio capitis. But these cases do not exhaust the possi- bilities of descent in legal capacity. A woman sui juris passing into the manus of her husband, undoubtedly changed her legal capacity for the worse ; but a woman that passed directly from the potestas of her father to the manus of her husband, suffered a change of status, but not a descent in status. But the texts ((t. 1, 162; G. 4, 38) seem to refer equally to both cases as examples of capitis deminutio. Savigny endeavours to remove the objection from these passages, — ^not altogether without success ; but. he does not get over the absence of a link of evidence that cannot well be spared. The great objection to Savi,'ny's theory is found in a passage from Paul (D. 4, 5, 3, pr.), which states that the children of a person arrogated suffer a capitis deminutio by the arrogation of the father, although it makes no change to them, but is merely a transfer from the potestas of one person to the potestas of another. Savigny admits that this passage is wholly irreconcilable with his views,, and argues at great length that Paul made a mistake, and was wrong in holding that case to be an example of capitis deminutio. The point would have been of the smallest practical importance to a Roman lawyer practising in the time of Justinian ; and it scarcely seems necessary to force ourselves to a judgment one way or the other. III. A paterfamilias forfeited his potestas by gross misconduct. 1. A father that compelled Ins daughter to prostitute herself, forfeited h\s potestas. (C. 1. 4, 12 ; C. 11, 40, (j.) 2. Exposure of free children carried with it a forfeiture of tJie poti'Stas. (C. 8, 52, 2 ; C. 1, 4, 24 ; Nov. 153, 1.) 3. 'J'he legitimate children of a man that contracts an inces- tuous marriage, are not only released from his potestas, but gain all his property, subject to affordiug him maintenance. (Nov. 12, 2, 2.) IV. Certain public dignities released persons from the potestas. 1. And further, sons go out from the parental power when they are installed as priests of Jttpiter Dialis; girls when they are taken for vestal virgins. (G. i, 130.) 2. A filiusfaniilias, although he has served as a soldier, or become a senator or consul, remains in his father's potestas. For service or the dignity of consul does not free a son from a father's potestas. But under a constitu- tion of ours, the crowning dignity of the patriciate, the moment the imperial patent is issued, sets a man free from his iicCa&c'i potestas. For who could bear that a father might by emancipation release his son from the bonds of his potestas, but that the Emperor's highness should not be able to e.^cempt the man whom he has chosen as father from another person's potestas? (J. I, 12, 4.) The dignity of the patriciate was created by Constantine. These fathers {^atre^ ACTIONS. 2 21 were onuncillors to the Emperor, but had nn jurisdiction of their own. The rank was conferred only on those who had filled the office of Consul, Pretorlan Prefect, or Master of Offices (Mayister OJiciorum). (C. 12, 3, 3. ) 3. Justinian, however, subsequently extended the liberation from the potestas to bishops (Nov. 81, 3), consuls, prefects, masters of soldiers (magistri militum), and generally to all the officials that were excused from serving in the curia (Nov. 81). This privilege was accompanied with another. These digni- taries, although released from the potestas, were suffered to enjoy all the rights accruing to children living under the potestas. They were to enjoy the sweets of liberty together with the consolations of servitude. E E M E D I E s. A. Remedies in respect of the rights of the paterfamilias. Under this head nothing has to be added to the observations made in the case of slavery. The paterfamilias has the usual remeilies against theft, robbery, damage, or injury. B. Remedies in respect of the investitive and transvestitive facts. These may be divided into two groups ; the object of the first group being to establish the potestas ; and the object of the second group being subsidiary — to remove doubts, in certain cases, in regard to the fact of paternity. I. Proceedings to establish the potestas. 1. Viiidicatio. — This was the usual real action by which a title to any property could be made out. It was employed in the fictiti')us form of adoption, ami may, if we may guess from a passage in the Digest (D. 6, 1, 1, 2), have been resorted to occasionally as a mode of recovering a lost potestas. 2. Procedure by interdict, de liberis exhiiendis et duccndis. — This was analogous to the exhibitor}' interdict by which the production of a freeman in court could be secured. It was open to the defendant to dispute the existence of the potestas. {G. S, S, 1.) Ko interdict was granted if the sen wished to remain with th6 person in whose possession he was. (D. 43, 30, 5.) The remedy of the father in such a case is given under the next head. The interdict could not be brought against a husband to produce his wife to her paterfamilias (D. 43, .30, 1, 5) ; nor against a mother, according to a rescript of the Emperor Antoninus, when it was judged best that the child should remain with her. Her custody of the child did not, h')W3ver, deprive the husband of his other paternal rights. (D. 43, 30, 1, 3 ; D. 43, SO, 3, 5.) The interdict de liberis ducendis enabled the paterfamilias, when his filiusfamilias was produced, to carry him off without resistance. (1). 43, 30, 3, 1.) 3. Extraordinary Fiocedare— Cognitio Extraoi dinaria or Notio Prcrtoris. When it was not a third party, but the /M«s/amiKas himself that resisted the claim of his paterfamilias, the remedy was by application to the Prastor, who examined whether the alleged paterfamilias had any potestas j and if so, gave him the filius- familias. (D. 43, 30, 3, 3.) II. Proceedings in regard to the fact of Paternity. The general rule was that the children of a lawful marriage were regarded as the offspring of the husband. This rule seems to have been at one time absolute ; but a Senutus Consultum was passed in the time of Hadrian, enabling a father to dispute thelegitimacy(>f his wife's child born during the marriage. (D. 25, 3, 3, 1.) Thus, it he were away from home .ten years, and on his return found that his wife had a child 222 MANUS. a year old, the presnmption in favour of his paternity would be destroyed. But where the husband had access to his wife, he was not permitted to dispute the paternity, unless through illness the cohabitation had been interrupted, or his health had been such as to render paternity impossible. (D. 1, 6, 6.) In several cases, special pre- cautions were taken to remove doulita as to paternity. 1. After Divorce. Senatus ConsuUum Plancianum de agnoscmdis libens. The wife affirms the paternity. A woman, pregnant when divorced, ought withm thirty consecutive days (D. 25, 3, 1, 9) to notify the fact to her divorced husband or his father (if he is under his father's potestas), to give an opportunity of sending five skilful midwives to examine and watch her {ventns imspiciendi ; custodes miUendi). (Paul, Sent. 2, 24, 5.) Should the husband neglect this opportunity, be cannot after- wards dispute the paternity. (D. 25, 3, 1, 4.) If the woman did not give notice, or refused to admit the midwives, she could not claim a maintenance for the child ; but its rights were not in any other respect prejudiced. (D. 25, 3, 1, 8 ; Paul, Sent. 2, 24, 6.) 2. After Divorce. The husband affirms, and the wife denies, her pregnancy. This case seems not to have been provided for by the Senatws Uonmltum Plan- cianum. It is dealt with by a rescript (D. 25, 4, 1, pr.), which states that the husband ought to choose respectable women and three skilful and trustworthy midwives to inspect the divorced wife. If the majority think that she is pregnant, she is to be persuaded to admit watchers (custodes). If she were recalcitrant, the Praetor could fine her, or apply other modes of compulsion. (D. 25, 4, 1, 3 ; D. 25, 4, 1, 7.) 3. The Husband is Dead, and his widow asserts that she is pregnant. She is bound to notify the fact to the persona interested in her husband's estate twice a month. They may send five women to inspect her, and, at the proper time, watchers. (D. 25, 4, 1, 10.) 1 1 1.— M ANUS. Definition. In the course of Roman history the relation of husband and wife is presented under two aspects. In the first and earliest the position of the wife was nearly identical with the position of a slave or child under the potestas. Novir let us see about the persons in our manus — a right peculiar to Roman citizens. (G. i, io8.) Potestas applies to both males and females ; manus to females only. (G. i, 109.) Manus was the name for the lights that a husband possessed over his wife ; but no husband had the manus in consequence merely of his marriage ; he could acquire it only in the ways presently to be described. A wife, if under her husband's majius, was called tnaterfamilias ; if not, simply uxor or matrona (wife or matron). (VXc. Top. 3.) The effect of the manus is best described in the words of Gains. Nay, even if a woman makes a Coimptio with her husband fiducite causa, DEFINITION. 223 none the less she at once takes the position of a daughter. For if a wife in any case, and for any reason, no matter what, is in her husband's manus, it is decided that She obtains the rights of a daughter. (G. I, 115, ib^ From the number of phrases into which the word manus enters, it was probably, as has been conjectured, the original name for the powers of the head of a family, what- ever the objects — cattle, slaves or children — over which they were exercised. By a process of differentiation the ownership of slaves and other property came to be designated by "dommium," the nearest equivalent of "property." The rights over children were named "poUsfas;^* over free persons, not as children, maiicipium; while the original word " manus " was retained only for the rights of husbands over wives. Mancipium comes from manus and capw — literally what is taken with the hand ; manumissio, from manus and mitiere, shows the word as applied to slaves and children. In its general characteristics the manus resembles the potestas; a wife was iu law in no better position than a daughter. But just as slavery falls short of the complete attributes of ownership, while the potestas exhibits a like advance from slavery, so the manus lies still further away from the characters of ownership than the potestas. I. A husband acquired all his wife's propei'ty, and Avas re- sponsible for her obligations to the extent of that property. (G. 2, 98 , G. 3, 83 ; G. 3, 84.) While she was in manu she could not acquire any property for herself, but only for her husband. She could, however, enjoy that modified and per- missive form of ownership granted to slaves and children; namely, the peculium. As to husband's liability for debts of wife, see Book III., Universal Succession, sub-head 11., " arro- gatio, coemptio in manum." The manus was, therefore, incompatible with the potestas : a woman that passed into the manus of her husband necessarily ceased to be under the potestas of her father. But in the time of Tiberius (Tac. Ann., 4, 16) so few persons were found to submit to the inconvenience of the manus, that there was a danger of an insufficient number of children being born to pro- vide candidates for the office of Priest to .Jupiter [Flamen Dialis), only those being eligible whose mothers were under the manus of their husbands ; and an act was passed abrogating all the disabilities of the manus where the marriage was con- tracted by confarreation. A woman that merely passes in mamim without making a coemptio does not thereby go out from her father's potestas. For in the case of the wife of the Flamen Dialis, a Senatus Consult passed at the instance of Cornelius Maximus and Tubero, provided that she was in manu of her husband in regard to sacred things alone, but in regard to all else was precisely the 2 24 MANUS. same as if she "had never passed in manum. But women are freed from thef parent's potestas if it is by coemptio that they pass in manum, no matter whether of a husband or of an outsider. But those only are held to stand in the position of daughters that are in a husband's manus. (G. 1, 136.) II. The husband does not seem to have possessed over his wife. in manu, within any period i-eached by historical docnraents, the same powers of chastisement and killing that he had over slaves and children. He appears, however, to have had the right of punishing his wife, with, in serious cases, an appeal to her relatives. The two crimes, in the punishment of which a wife's relatives had a voice, were those regarded as least venial in ancient Kome — a violation of the nuptial bed, and drinking^ wine. This intervention of relatives may have been the means b}' which the absolute authority of the husband over his. wife's life was first effectually checked. (Dion. Halic, Ant. Rom., 2, 25.) III. There is no trace of the actual sale of a wife by a hus- band, but a fictitious sale {mancipatio) was the recognised means of relieving the wife from the manus of her husband. Whether this fiction represents a more ancient fact, must be left to be determined by the evidence of legal institutions similar to the manus in other countries, for no conclusive testimony 011 this point is forthcoming from Roman sources. Rights and Duties. A. Rights of Husband. I. Tlie husband had a right to the possession of his wife, a riglit that might be violated by theft. (G. 3, 199.) II. He could sue any person causing an injuria to his wife, but this did not depend on the existence of the manus. (G. 3, 221.) B. Duties of the husband. Gaius does not say whether a wife in manu was subject to noxal surrender. Investitive Facts. I, Purchase. Coemptio in manum. ■ In coemptio women pass, in manum by inancipatio ; that is, by a fictitiout ■: sale. At this there must be present not less than. five witnesses, Ronwn,' COEMPTIO IN MANUM. 225 citizens over the age of puberty, and also a balance-holder ; and the woman is bought for an as by the man into whose manus she passes. (G.I. 113.) If we may believe Boethius, marriage was formed by mutual interrogations : the man asked the woman whether she was willing to be \\\^ materfamilias ; she expressed her willingness, and asked in turn whether he was willing to be her pater- familias. This may have been the form when the manus was dying out before marriage by simple contract ; but when the coemption was more of a reality, we may infer that the husband used words move distinctive of his proprietary claim — as " I declare this woman to be mine " — Hanc ego mulierern meam esse aio. (Boeth. on Cic, Top. 3. 14.) II. Prescription. Usus. Formerly there were three ways of passing- in manum — tisus, farreum, eoemptio. (G. i, no.) By usus a woman passed in manum by living with a man as his wife throughout the whole year. For the possession of her for a year gave him, as it were, a prescriptive right by usus; and so she passed into her husband's household, and came to hold a daughter's place. The law of the XII Tables, therefore, provided that if a woman wished not to pass in that way into the manus of her husband, she should stay away for three nights each year in order to break off the usus for that year. But all this branch of law is now gone, being partly taken away by statutes and partly effaced my mere disuse. (G. i, in.) This usus vraa simply the ordinary prescription. When a Eoman citizen had pos- session of anything (except land) for a year, he obtained the full rights of ownership. A wife was capable of being thus held as property in, her husband's *' wianMs." III. A religious rite — confarreation. Canfarreatio. \nfarretcm women pass in manuin by a kind of sacrifice made to Jupiter Farreus, in which 3^ farreum, that is a wheaten cake {J'arreus panis) is used ; from which the ceremony is named confarreatio. But, besides, in order to establish this right, many other acts and things are done, and a set form of words used in the presence of ten witnesses. Nor is this rite disused even in our time, for the greater Flamines — namely, the Dialis, the Martialis, the Quirinalis, and alsO' the Rex Sacrorum — must be begotten in marriage celebrated by confarreatio. And a Flamen too, if he marries, must do so by confarreatio. (G. i, 112). It has been already stated that after the time of Tiberius mnfarreation ceased to invest the husband with the manus, but gave the wife a right to participate in the family sacred rights. The ceremony of confarreation took place before the chief Pontiff. (Pontifex Maximus) and the Priest of Jupiter (Flamen Dialis), Upon the relative antiquity of these modes of acquiring the P 2 26 MANUS. manus Mr M'Lennan malres tbe following interesting observa- tions {Primitive Ilarriage, 1st edit., p. 13) : — « Apart from the tests of truth afforded by the minute knowledge of primitive modes of life and their classification as more or less archaic, nothing could be more delusive than written history itself. In Roman law, to take a convenient example, confarreaiiohsiB the foremost place among the modes of constituting marriage [rather say the manus\. Usus is just mentioned in the XII Tables, which contain a provision against a wife coming into the manus of her husband through usus. Coemptio does not aj^pear in the old law of Rome at all, nor is there any mention of it earlier than that by Gaius.^ But it can easily be shown that usus and coemptio come first in order of age, and confarreatio later : that is to say, the two former are more archaic than the latter. Yet have recent learned writers, ovei'looking this fact and the meaning of legal symbolism, represented usus and coemptio as forms invented and introduced by the legislators of Rome, whereby the Plebeians might have their wives in manu, and enjoy the other advantages of justae nuptiae; usus as an invention, and the fictitious sale in coemptio as merely a device of legislative ingenuity. The true explana- tion of the late appearance of both usus and the fictitious sale in the Roman law is this, that the law at first was not that of the whole people, but of a limited aristocracy, who, with a Sabine king and priesthood, adopted the Sabine religious ceremony of marriage ; that the law totally ignored the life and usages of the mass, and that their modes of marrying and giving in marriage began to appear, and to make their mark in the law, only on the popular element in the city becoming of importance. Instead of marriage per coemptionem being the invention of legislators, it was of spontaneous popular growth, and must have been as old as the establishment of peaceful relations between tribes and families. All fictions, or nearly all, have had their germs in facts; became fictions or merely symbolical forms afterwards. And that the fictitious sale was originally an actual sale and purchase, cannot be doubted by any one who knows that marriage, by the form of actual sale, has prevailed almost universallj' among rude populations." In the opinion of Mr M'Lennan, the legend of the " Rape of the 1 This is a mistake. Both urns and coemptio axe mentioned by Cicero Pro- Flacco, 34. DIFFARREATIO. 22/ Sabine Women " refers to a still earlier and nider form of marriage, in which the bride was not peacefully bought, but stolen by treachery or carried off by violence. Divestitive Facts. A. Voluntary, by the act of the piartes. I. Re-purchase. Remancipatio. By re-conveyance {remancipatio) also women cease to be in manu; and manumission after the re-conveyance makes them sui juris. And if a woman has made a coemftio fiduciae causa with an outsider, she can compel him to reconvey her. But if a woman has made a coemptio with her husband, and wishes to be reconveyed by him, she can no more (directly) compel him than a daughter can a father. But while a daughter cannot in any way compel a father, even if only an adopted father, to reconvey her, a wife can by sending a divorce compel her husband to reconvey her just as if she had never been married to him. (G. i, 136 A.) II. Diffarreation {Diffarreatio). We learn from Plutarch (^Quaest. Rom. p. 270) that the marriage of confarreation was dissolved by a sacrifice under the authority of the Pontiff, who took care that it should be infrequent and costly. The sacri- fice is said to have required certain abominable rites. The wife of the Flamen Dialis could not be divorced. B. Involuntary divestitive facts. Women in manu are freed therefrom like daughters in potestatej — by the death, for instance, of him in whose manus they are, or by his being forbidden the use of fire and water. (G. i, 137, restored.) Eemedies. We have no precise information upon this head. The husband could divorce his wife when he pleased, but it seems from Gaius that the wife did not enjoy the corre- sponding privilege. (G. 1,137 a.) Any question as to the existence of inarms was probably decided in the same manner as other questions of status ; but upon this subject Gaius gives us no information. IV.— MANCIPIUM. Definition. The subject of mancipium belongs wholly to the antiquarian side of Roman law. In the time of Gaius, from whom the substance of our information is derived, the mancipium was (except in the case of a noxal surrender) a purely fictitious 228 MANCIPIUM. legal status, resorted to, as has been seen, in adoption and emancipation. Those persons were said to be in mancipio who had been the objects of the ancient form of the conveyance called mancipation (mancipatio). Slaves were often called mancipia, although the word mancipium is more generally confined to free persons. (D. 1, 5, 4, 3.) But technically there was a wide difierence between a slave and a person in mancipio. Slavery was an institution of the jus gentium; m,ancipium, like potestas, was peculiarly Roman. The person in mancipio remained free and a citizen, although some of his rights, such as potestas, were in abeyance. (G. 1, 135 A.) When released, he was subject to the rights of patron- age (G. 1, 195), but was ingenuus, not lihertinus. Another distinction existed. A slave was the object of rights scarcely to be distinguished from ownership, and he might be the object of possession ; but mancipium partook more of the character of a personal relation, and a person in mancipio could not be the subject of the possessory Interdicts. (G. 2, 90.) Lastly, by enrolment on the census, even without the consent of his master, a person was released from mancipium. (G. 1, 140.) We have still to tell further what persons may be in mancipio. (G. i, 1 16.) The persons, then, of all children, whether male or female, in the parent's potestas, can be conveyed by maticipatio ]\xst as slaves can. (G. i, 117.) The same right is enjoyed over the persons of women in manu; for they can be conveyed by mancipatio by their coemptionatores in the same way as children by a parent. And so far is this carried, that although no one stands to the coemptionator in the position of a daughter unless she is married to him, yet none the less one that is not married to him, and there- fore not in the position of a daughter, can be conveyed by him by mancipatio. (G. I, 118.) But often the whole aim of mancipatio by parents and coemptionatores is to release those persons from the rights enjoyed over them, as will appear more clearly below. (G. i, 118 A.) Rights and Duties. Those who were in mancipio were said to be in the place of slaves (servorum loco). But the holder was not permitted to ill-use them, from which it may be inferred that mancipium resembled a pledge more than a sale. And lastly, we should observe that those we hold in mancipio must not be treated with insult ; or if we do, we shall be liable to an actio injuriarum. For no long time indeed are men kept in that condition ; but MANCIPATIO. 229 usually mancipatto is merely for form's sake, and is over in an instant, — unless, indeed, when it is the consequence of some wrong {ex noxali causa) (G. I, 141.) Investitive Facts. A. Mancipation (Mancipatio). Mandpatio is, as we have said above, a fictitious sale ; and the right is peculiar to Roman citizens. The process is this : — There are summoned as witnesses not less than five Roman citizens above the age of puberty, and another besides, of the same condition, to hold a balance of bronze, who is called the libripens. This last, who receives the object in mandpio, holding a piece of bronze {aes), speaks thus : — " I say this man is mine ex jure Quiritium, and he has been bought by me with this piece of bronze and balance of bronze." Then with the piece of bronze he strikes the balance, and gives the piece of bronze, as if the price to be paid, to him from whom he receives the object in mandpio. (G. i, 119.) The aes of the Roman coins was bronze, a mixture of copper, tin and lead. Brass \prichalcurti) was a mixture of copper and calamine or zinc. The reason for using a piece of bronze and a balance is this : — That of old the only money in use was of bronze— the as, namely, the double as, the half as, and the quarter ; but no gold or silver coin, as may be seen by the XII Tables. And the worth and (purchasing) power of those coins depended not on number, but on the weight of bronze. The as, for instance, weighed one pound, the double as {dipondius) two — whence its name, a name still in use. The half as, too, and the quarter, had a fixed weight in pro- portion to their amount as fractions of a pound. And the money, too, of old, when paid, was not counted, but weighed. And hence slaves entrusted with the management of money wgre called, and are still called, dispensatores (weighers). (G. i, 122.) If, however, any one should ask wherein a woman that has made a coemptio differs from one conveyed by mandpatio, the answer is this : — A woman that has made a coemptio is not dragged down to the condition of a slave. But men or women conveyed by mandpatio by parents or coemptiona- tores are placed in the position of slaves ; and so fully is this the case that from him that holds them in mxincipio they can take neither an inheritance nor legacies unless the same will at the same time ordain that they shall be free,— the very law that applies to the condition (;)^wo»a) of slaves. And the reason of the difference is plain ; for parents and coemptionatores receive them in mancipio with the very same words with which they receive slaves ; and this is not the case in coemptio. (G. i, 123.) Divestitive Facts. A. Modes of Kelease. Persons in causa tnancipii since they are looked on as standing in the position of slaves, are manumitted by vindicta, by entry in the census, or by will, in order to make them sui juris. (G. i, 138.) 230 MANCIPIUM. B. Restraints. But to this case the lex Aelia Sentia does not apply ; therefore no limit of age is required from either the manumitter or the manumitted. Nor is it even asked whether the manumitter has a patron or a creditor. And the number limited by the lex Fufia Caninia does not apply to these persons. (G. I, 1 39-) Nay, more : Even against the will of him that holds them in tnancipia they may be entered in the census, and so gain their freedom. But with one exception,— when the father has conveyed a son by mancipaho on the express condition that he shall be reconveyed to him ; for then the father is held to reserve in a measure his own potestas in the very fact that he recovers by mancipatio. And again, a son cannot gain his freedom by being entered in the census against the will of the holder in viancipio, if his father has sur- rendered him on the ground of some wrong-doing (ex noxali causa) ; if, for instance, the father has been condemned on the score of a theft by the son, and has surrendered the son by mancipatio to the pursuer ; for the pursuer has him instead of money. (G. i, 140.) Remedies. A. In respect of rights and duties. For injury done to the maiMpium an action lay for damages against the person that held the mancipium by the person that had given the mancvpium {actio injuriarum). [G. 1, 141.) B. In respect of investitive facts the remedy was doubtless the vmdicatiOf or real action ; but Gains is silent on the subject. Effixti Hibission. RIGHTS IN REM TO THINGS. FIRST SUBDIVISION. INDEPENDENT EIGHTS— i.e., CREATED FOR THEIR OWN SAKE. I. — Ownership. Dominium. Definition. In the Roman Law, dominium is used sometimes with a narrower, and sometimes with a wider, signification. In the wider signification, the law of ownership includes everything that is brought under the third division of rights in rem — namely, all rights in rem over things. In this sense, ownership is contrasted with ohligatio, which is nearly equivalent to rights in personam. (D. 44, 7, 3.) But dominium is generally used with a more restricted application, as the name for the largest interest in things, as opposed to the lesser interests. It " denotes a right — indefinite in point of user, unrestricted in power of disposition, and unhmited in point of duration — over a determinate thing." (Austin's Jurisprudence, 817.) Such is the correct notion to start with, but we shall find cases where a person is called owner, whose rights are not so unlimited as the definition requires. Rights and Duties, The rights of an owner may be briefly comprised under two heads^a right to the exclusive use of the thing belonging to him, and a right to alienate it. These two rights do not neces- sarily go together, but they are generally united in the Roman law. The chief instances of incapacity of owners to alienate will be examined elsewhere ; at this stage they need only be enumerated. 232 OWNERSHIP. 1. Persons of unsoxind mind, or prohibited by order of a court from the management of their property {cui bonis interdicitur). 2. Now we must note that a pupil can alienate nothing without the autho- rity {auctoritas) of the tutor. (G. 2, 8, 2.) Now we must note that a woman or a pupil can alienate no res mancipi without the authority of the tutor. A res nee manci;pi a woman can alienate, but a pupil cannot. (G. 2, 80.) PufAl, tutor are explained in (Book II. Div. II., Tutda). Res mancipi will be explained presently. {Dominium. Investitive Facts.) 3. A husband (see Dos) cannot alienate the immoveables brought by a wife as part of her dowry. On the other hand, the agnate that is curator of a madman may alienate his property under the statute of the XII Tables. And a procurator, too, may alienate the perishable property of the principal that has entrusted him with its management. (G. 2, 64.) These exceptions serve to illustrate the generality of the rule that every owner had unrestricted power of alienation ; and we need not at present further consider this element of ownership. The next question is, What is the nature of that exclusive use that constitutes ownership, and in what manner may the owner's rights be violated 1 The answer embraces necessarily an account of the wrongs that may be done to an owner in respect of his property. In enumerating these it is convenient to adapt our arrangement to the distinction between moveable and immoveable things. Immoveable things are such as land, and whatever is fixed in or to it; moveable things cannot be more clearly explained than by their name. They are such things as may be moved from place to place, as furniture, horses, cattle, slaves, garments, wine, corn, etc. First, Eights to Moveables. A. Rights of the owner (dominus). A right to a moveable may be violated in two ways : (1) It may be taken away from the owner ; and (2) without being taken away, its usefulness may be impaired. A wrong to an owner of a moveable may be, therefore, an offence against possession, or an offence against the usefulness of the moveable. (a.) Deprivation of Possession. In two ways an owner may be deprived of his moveable— by force or by fraud, against his will or without his consent. The former is robbery ; the latter, theft. We shall first state the law regarding theft. I. Theft (furtum). A doubt was at one time entertained THEFT. 233 whether theft was not an offence applicable also to immove- ables. (D. 41, 3, 38.) Sabinus thought it was, but the Pro- culians, whose opinion is sanctioned by Justinian, relying upon the etymology of the word (from fero, to carry off), held that theft was an offence against moveables only. (D. 47, 2, 25.) The Roman jurists did not, however, fall into the error made by Lord Coke and his successors in England, of treating things attached to immoveables as partaking of the same character, and of holding that stealing them was a mere trespass, not theft. It was held that trees or growing fruit might be the object of theft (D. 47, 2, 25, 2), and so, likewise, stones, sand, or chalk dug up and carried away. (D. 47, 2, 57.) The term {furtum) comes either from furvus (black), because theft is done in secret, and in the dark, and often by night ; or from fraus (fraud) ; or from/erre, that is, to carry off; or from the Greek, fiup, — their name for thieves, which comes itself from i (I carry off). (J. 4, i. 2.) Theft {furtum) is the deahng with an object, or with its use or pos- session, with intent to defraud,— an act forbidden by the law of nature. (J- 4, I, !•) In the corresponding part of the Digest, it is added that the appropriation must be for the sake of Rain ^ucri faeiendi causa) ; (D. 47, 2, 1, 3), and, in some instances, paina were taken to show that although there was an apparent absence of personal gain, as when the thief stole a thing with the intention of making a present of it to another, yet there was a real benefit to the thief in the credit he obtained for generosity. (D. 47, 2, 54, 1.) The desire of gain is almost necessarily the motive to steal; but even if such desire were absent, the act ought apparently still to be considered theft. The definition of theft given in the Institutes may be accepted as it stands, for the essential elements of theft are (1) an actual handling or dealing with the thing (i.e., an overt act as distinguished from mere intention) ; (2) that it should be done without the consent of the owner ; (3) and the knowledge of the thief that he has no such consent. a. The constituent elements of Theft. 1. Theft of a moveable (furtum ret). 1°. There must be an actual handling or exercise of physical power over the thing (contrectaiio). A mere intention to steal, whether uttered in words (D. 47, 2, 52, 19) or not (D. 47, 2, 1, 1), is not theft. A by telling a he induces B to make a promise to C. This is not theft, because there is a mere promise to perform, not anything capable of being touched or dealt with. (D. 47, 2, 75.) A sells B's slave without E*s knowledge or consent, but the slave continues in B's possession. This is fraud, but not theft. If, however, A detained B's slave and sold him, it would be theft. (C. 6, 2, 6.) A, pretending to be B's creditor, requests B to make payment of the debt to 0. If the payment is made by B to C in A's presence, it was the same as if the money were given by B to A, and by A to C, and the offence was theft ; but if the payment was made in A'a absence, it was not theft, inasmuch as the money was never handled by A at aU. (D. 47, 2, 43, 2.) 2 34 OWNERSHIP. A deposits with B a box for safety during his absence. On his return, B falsely denies the receipt of the box with the intention of cheating. This is not theft, for a mere intention is not enough to constitute theft ; but if B deals with the box, as by concealing it, then B is guilty of theft. (D. i7, 2,1,2; D. 47, 2, 67, pr. ; D. 16, 3, 29, pr.) 2°. The contrectatio must be without the consent of the owner {invito domino). The owner is understood to forbid if he does not consent. (D. 47, 2, 48, 3.) This, of course, is merely an aspect of the rule, that no wrong can be done to a man with his consent. A intends to make B a present of a walking-stick. B, without knowing A's inten- tion, desires to appropriate it, and carries it away. Although B was guilty of a fraudulent appropriation, his act was not theft, on account of the consent of A, althougli such consent was unknown to B. (D. 47, 2, 46, 8.) A ship is in danger of being wrecked, and amongst other things a cask of wine is thrown overboard near the shore. Titius, who sees the vessel in distress, watches the cask, and when it is driven ashore, carries it home and consumes the wine. This is theft. There may have been no concealment in the manner of carrying off the cask, but it was against the wishes of the owners, and therefore theft. (D. 47, 2, 43, 11.) And even though a man believes that it is against the owner's will that he is dealing with property lent him free, still if the owner is in fact willing, it is said there is no case of theft. And hence this question has been raised [and decided]. If Titius solicits Maevius' slave to steal certain property of his master's, and to bring it to him ; and the slave reports this to Maevius ; and Maevius, wishing to arrest Titius in the very act of wrong-doing, allows the slave to take certain property to him, then is it to an actio for theft or for corrupting the slave {servi corritpti) that Titius is liable, or to neither.'' [And the answer is, to neither ; not for theft, because it was not against the owner's will that the property was dealt with ; and not for corrupting the slave, because the slave is none the worse.] (J. 4, i, 8 ; G. 3, 198.) This doubtful point was referred to us, and we looked through the dis- cussions on it by the old jurists ; some of whom allowed neither action, some that of theft only. But we set our face against such subtlety, and by our decision formally settled that both actions are to be given. For although the slave is net one whit the worse for the solicitations, and therefore the rules under which the actio servi corrupti is brought in do not altogether meet the case ; yet the design of the corrupter 'to ruin the slave's upright- ness is brought in so that he is exposed to a penal action, just as if the slave had in fact been corrupted. For a criminal attempt of this sort must not go unpunished, lest it be repeated by some one on another slave that can be corrupted. (J. 4, i, 8.) Closely akin to those cases are the instances where an ov/ner parts with his property voluntarily, but under a false pretence. When the false pretence was the personation of a person that had a legal claim, the rule seems to have been applied, that he that is deceived does not cousent. But other false pretences THEFT, 235 could only be dealt -with as fraud, giving rise to an action on that ground (aetio de dolo), and did not fall under the head of theft. A, a slave, goes to a money-lender, and procures an advance of money on the representation that he ia free. This is not theft, but simple fraud (dolus). (I). 47, 2, 52, 15.) A obtains a loan by falsely pretending (1) that he is rich, or (2) that he will spend the money on merchandise, or (3) that he will give good securities, or (4) that he will immediately repay it. This is not theft, but would support an action for fraud (D. 47, 2, 43, 3.) Seius arranges to give a loan to Titius, a respectable citizen. Pomponius, knowing that Seius is not personally acquainted with Titius, takes to liim another Titius, a man without character or means, and succeeds in obtaining the loan, the proceeds of which he shares with the spurious Titius. Titius commits theft, and Pomponius is an accomplice. (D. 47, 2, 52, 21.) A slave accustomed to collect money due to his master is manumitted, and, conceal- ing the fact, recovers sums from the debtors of his master. This is theft, because it is a personation of one entitled to collect money. (D. 47, 2, 66, 3.) Gaius appoints Sempronius his procurator to collect his debts, and notifies the fact to his debtors. Titius goes round, and, pretending to be Sempronius, obtains payment to himself. This is theft. (D. 47, 2, 80, 6.) 3°. To constitute theft, the thief must know that he has not the consent of the owner {fraudulosa contrectatio). There is no theft without an intention to deprive a person of his property, or of the enjoyment of it. In this respect theft corresponds to injuria. Theft is an intentional violation of a man's right to his moveable property ; injuria is a wilful infraction of a man's right to his own person, safety, or reputation. A picks up in the street a ring that he knows to be B's, intending to return it to B. This is not theft. (D. 47, 2, 43, 7.) A thief breaks a casket and carries off the jewels. He is not guilty of stealing the casket, but he is of stealing the jewels. (D. 47, 2, 22, pr.) A gives B some money to carry to 0. B carries it, gives a portion to C, and keeps the rest for his own use. This is theft. (C. 6, 2, 7.) But if B was not bound to deliver the identical coins, it was merely breach of contract. (D. 17, 1, 22, 7 J D. 47, 2, 43, 1.) A lent B weights that were too heavy for the purpose of weighing articles bought by B. The vendor can sue B for theft, and also A, if A knew B's intention to cheat. The reason is that the vendor did not intend to part with the possession of his property beyond the just weight ; and the excess beyond that was therefore stolen. (D. 47, 2, 52, 22.) 2. Theft of the use of a thing {furtum usus). Theft, in its general sense, includes not only the taking away of what is another's in order to deprive him of it and keep it, but all dealing with what is another's against the owner's will. Thus it is theft for a creditor to make use of a pledge {pigntts) ; for a man with whom anything is deposited, to make use of that thing ; for a borrower that has received something to use, to put it to 236 OWNERSHIP. any use any other than that for which it was given. It is theft, for instance, if a man receives plate, to be used at a dinner he is going to give his friends, and then carries it off to the country with him ; or if he has a horse lent him free (commodatmn) for a ride, and takes it beyond a certain distance — as in the case mentioned in the old writers, where the man took the horse into battle. (J. 4, 1,6; G. 3, 195-196.) It is decided, however, that those that put things lent them free for one use to another use, are not to be held guilty of theft unless they know that they are acting against the owner's will, and that he, if he knew it, would not allow them ; and if they believe that he would allow them, they are clear of the charge. And the distinction is certainly an excellent one ; for where there is no intention to steal (affectus fura7tdi) [wrongful intent {dolus malus)\ there is no theft. (J. 4, i, 7 ; G. 3, 197.) 1°. CoNTKACi OF Deposit. —It was the essence of thia contract that the person with whom anything was deposited should not use it ; his sole duty was to keep it. The question is, what use of it amounts to theft, and what only to breach of contract ? The difficulty is that every use implied an absence of authority, and therefore a prohibition (prohibet qui non consentit). Suppose a ring were left in deposit, and the receiver wore it, there can be no doubt that this breach of contract would throw on the receiver the risk of the thing ; and if it were lost by accident, he would be obliged to pay for it ; whereas if he had not worn it, he would not have been liable without being guilty of fraud. But would it be theft ? It all depends, says Justinian, on the intention. If the receiver knew that the depositor would never have allowed him to wear it, then he is simply taking advantage of his position to cheat the owner of the use of the thing. (D. 13, 1, 16 ; D. 47, 2, 76, pr.) 2°. CoNTKAOT OF LoAN. — This differs from deposit, inasmuch as it implies a limited or prescribed use granted to the borrower, who takes advantage of the possession given him to use the thing for a different purpose. The case in the text where A, on the pretence of giving a supper, borrows plate and carries it on a journey, illustrates the idea of a theft. If A had borrowed the plate bona fide, having no ulterior purpose, but afterwards, being suddenly called away, presumed that the lender would allow him to take the plate with him, he committed no theft ; but as he exceeded the limits prescribed, he rendered himself liable for all loss by accident. 3. Theft of possession. Sometimes, too, a man may commit a theft even of his own property ; as when a debtor removes by stealth what he gave a creditor as a pledge [or when I carry off by stealth property of mine of which some one else is possessor in good faith. And hence it is held that if a man hides his own slave that comes back to him, while possessed by some one else in good faith, he commits a theft]. (J. 4, i, 10 ; G. 3, 200.) 1. Theft from oeeditor. The equity of this case is manifest. The creditor has a right to the pledge in his possession until the debt is discharged, and to permit the owner to carry the thing off by stealth would be to allow him by fraud to deprive his creditor of his security. But the provisions of the Roman law went much further. Even if the thing pledged remained in the possession of the debtor, and the debtor fraudulently disposed of it, he committed theft. (D. 47, 2, 66, pr.) The contract of pledge gave the creditor a right in rem to the thing pledged, and a wilful violation of this right was, as in other cases, treated as a theft. Titius let to Sempronius a farm, and, according to the usual custom, an agreement THEFT. 237 was made that the crops (fntotue) should be a security for the rent. Sempronius secretly carries away his crop to deprive Titius of his security. This was theft. (C. 47, 2, 61, 8.) 2. Bona Fioe Possessok. — A bona fide possessor is one that has received a thing belonging to another in such a manner as to justify him in believing himself to be owner. The owner had a remedy against him for the recovery of the thing, but, as decided by Gaius, if he fraudulently carried it off, it was theft. A thief or other person that possessed what he believed to belong to another {mala: fide possessor) could not bring an action for thefb, although he had sufficient right to the possession to support an action for the recovery of the thing itself {condictio furtiva). (D. 47, 2, 12, 1 ; D. 47, 2, 76, 1.) /3. Persons (not owners) that could bring an action for Theft. 1. Persons having rights in rem to things. 1°. One that had a usufruct — i.e., the right to the use and pro- duce of any property for life or a definite period — could bring the action of theft even against the owner. If the owner was not the thief, both he and the usufructuary could bring the action. (D. 47, 2, 46, 1.) 2°. The person that was entitled to the use only, not the produce (usuarius), had the same rights in this respect. (D. 47, 2, 46, 3.) 3°. The bona fide possessor, and 4". The creditor. The actio furti is open to any one that has an interest in the safety of the thing stolen, even though he is not the owner. And therefore it is open to the owner only if it is to his interest that the thing should not be lost. (J. 4, I, 13; G. 3, 203.) Hence it is agreed that a creditor can bring the actio furti for a pledge that has been stolen, even although he has a debtor able to pay ; for it is his interest rather to rest his claim on the pledge, than to bring an actio in personam. And so entirely does this hold, that although it is the [owner, i.e., the] debtor himself that has stolen the thing in pledge, none the less the creditor may avail himself of the actio furti. (J. 4, I, 14; G. 3, 204.) Thus several persons may have an action for theft when a thing is stolen. A gives his slave to B in security for a debt, but retains possession. Afterwards A delivers the slave to C in usufruct. The slave is stolen. has an action for damages for what he loses by the theft. (D. 47, 2, 46, 1.) B has also an action for theft for the value of the slave, not of the debt (D. 47, 2, 87) ; and if there remains anything over, A has an action for the amount by which the value of the slave exceeds that of the debt. (D. 47, 2, 46, 4.) 2. Persons having an interest in a moveable in consequence of a contract. 238 OWNERSHIP. 1°. Letting to hire (Locatio-conductio). And again if a fuller or tailor takes clothes to be cleaned and done up or to be mended for a fixed price, and they are stolen from him, it is he, and not the owner, that has the aMo fiirti. For the owner has no interest m seeing that the property is not lost, since he can recover in court by an actio locati from the fuller or tailor all that is his. And a purchaser in good faith too, if the thing he bought is made away with, may (although he is not its owner) avail himself in any case of the actio furti just as a creditor might. But the fuller and tailor, it is held, can avail themselves of the actio furti only if they are solvent ; that is, able to pay the value of the property to the owner. For if not, then the owner, since he cannot recover from them what is his, may himself bring the actio furti; for in this case the safety of the property is his interest. And it is the same if the fuller or the tailor is only partly solvent. (J. 4, I, 15 ; G. 3, 205.) Theft created a presumption of negligence. (U. 47, 2, 14, 12 ; D. 47, 2, 14, 10 ; D. 17, 2, 52, 3.) 2°. Loan ( Commodatum). All that we have said of the fuller and the tailor ought to be applied also, the ancients thought, to the borrower (cui commodata res est). For as they take pay, and therefore are answerable for the safe-keeping of the thing ; so he, by enjoying the advantage of its use, necessarily makes himself answer- able in like manner. But our wisdom has amended this, among our other decisions. And now the owner has the option of bringing an actio commodati against the borrower if he wishes, or an actio furti against the man that stole his property. But after choosing one of these two, the owner cannot change his mind and have recourse to the other. If he has chosen to proceed against the thief, then he that received the thing to use is .entirely freed. But if, again, the lender proceeds against him that received the thing to use, then in no way can he avail himself of the actio furti against the thief The borrower, however, when sued for the thing lent him, may have this action against the thief, if only the owner knew that the thing was stolen, and yet proceeded against him to whom it was lent. But if he was ignorant and in doubt whether the property was not with the borrower when he brought the actio commodati., and afterwards, on ascertaining the fact, wished to give up that action, and to have recourse to the actio furti, then full leave is granted him to do so, and to proceed against the thief without let or hindrance. For he was still in a position of uncertainty when he brought the actio commodati against him that received the thing to use. If, however, the borrower has already compensated the owner, then in any case the thief is free from an actio furti on the part of the owner ; and in the owner's room comes the borrower that has made compensation to the owner for the thing lent him. And it is plain, further, beyond all doubt, that if at first the owner brings the actio commodati in ignorance that the thing has been stolen, and afterwards, when he knows this, proceeds against the thief instead, that in any case he is freed that received the thing to use, no matter what the issue of the owner's action against the thief. And the same rules hold whether the man that received the thing on loan is partly or entirely solvent. (J. 4, I, 16 ; G. 3, 206.) THEFT. 239 When the owner secretly carried off the thing lent from the borrower, it was not theft, unless the borrower had a balance of claim against him for expenses, in which case he had an interest in the retention of the thing, and conld sue the owner for theft. (D. 47, 2, 15, 2 ; D. 47, 2, 59.) 3°, Deposit. He with whom a thing is deposited is not answerable for its safe-keeping, but is liable only for his own acts of wilful wrong-doing {dolo malo). And therefore, if the thing is stolen from him, since he is not liable to an actio depositi for its restoration, and thus has no interest in its safety, he cannot bring an actio furti, but the owner can. (J. 4, i, 17 ; G. 3, 207.) These cases, where a person whose interest in a thing is based wholly on a relation of contract can bring an action for theft, seem to be opposed to the general conception of theft ; namely, as an offence against a right in rem. The hirer or borrower, however, has certainly a right in rem to the thing hired or borrowed, derived from the consent of the letter or lender, and limited thereby. The hirer enjoys by a species of delegation the owner's right to the possession of the thing. Hence, a person in the absence of the owner, and therefore without his authority, undertaking the custody of his pi'operty (negotiorum gestor), although responsible for every- thing that was stolen through his fault, could not sue the thief. (D. 47, 2, 85.) In like manner a tutor, whose powers were conferred on him by law, and were not derived from the con- sent of the pupil, could not sue for theft of the pupil's property, although he was bound to make good the loss. It could not be said that the pupil had delegated to the tutor the right of possession, and with it the right to sue the thief that deprived him of the possession. But in these eases the owner could not require the tutor or agent to make good the los.s, without first giving up his rights of action against the thief. (D. 47, 2, 53, 3.) 3. A person having only a right in personam in respect of a thing, could not bring the action for theft. A bequeaths Stichus to B. Before Stichus is delivered to B he is stolen. B has no action for theft. (D. 47, 2, 85.) A sells Stichus to B, but before delivery Stichus is stolen. B, inasmuch as he does not become owner until Stichus is delivered to him, cannot sue the thief. He can, however, under the contract, require A to allow him to sue the thief in As name. (D. 47, 2, 14, 1.) This opinion was not held by Paul, who argued that both purchaser and vendor could sue the thief, inasmuch as each had an interest in the safe delivery of the slave. (Paul, Sent. 2, 31, 17.) A sells Stichus to B, and B carries off Stichus furtively, without paying the price. B commits theft. (D. 47, 2, 1 4, 1 ; D. 47, 2, 80, pr.) 240 OWNERSHIP, y. Abettors of Theft. 1. What is abetting? Sometimes a man is liable to an actio furti that has not in person com- mitted a theft ; as, for instance, he that has aided and advised a theft. But, certainly, he that has lent no aid {ope) to the commission of a theft, but only- advised and encouraged {consilio) the thief, is not liable to the actio furti. Among these are to be reckoned the man that knocks money out of your hand in order that another may make off with it ; or that stands in your way in order that another may steal what is yours ; or that puts your sheep or oxen to flight that another may take them as they flee— as in the case in the old writers of the man that put a herd to flight by means of a red cloth. But if any such act is done wantonly, and not to aid in the commission of a theft [we shall see whether the tttilis actio under the lex Aquilia ought to be given — for the lex Aquilia de damno punishes even carelessness], an actio injactuin ought to be given. He too aids and advises the commission of a theft that places ladders under the windows, or breaks open the windows or a door in order that another may commit a theft ; or that lends iron tools to break open a house, or ladders to put under windows knowing for what purpose they are lent. (J. 4, I, II ; G. 3, 202.) A tame peacock has escaped, and A pursues it until the bird is exhausted and i$ caught by B. A is liable for theft. (D. 47, 2, 37.) A persuades B's slave to run away. This is not theft ; but if the slave carries with him any of his master's property, A is said to abet the theft. (D. 47, 2, 36, 2.) 2. Responsibility of abetting. But when Maevius aids Titius in committing a theft, both are liable to the actio furti. (J. 4, i, 11.) Each person abetting or aiding a theft is responsible as if he alone had done it; so that payment by the others of the penal- ties they have incurred does not exonerate him. This rule, which was adopted from a feeling of hostihty to thieves, pressed with great hardship on a man when several of his slaves were concerned in the theft, of a single article. {Si familia furtum fecisse dicetur, D. 47, 6.) The Prsetor, there- fore, gave an option to the master, either to surrender all the slaves that had been concerned in the theft, or to pay the amount that a single freeman would have had to pay if he alone had committed the theft. (D. 47, 6, 1.) Every master got the benefit of this option, if the theft had been committed without his knowledge or against his orders. It may be added that the same option was given to the master when several of his slaves had committed damage (damnum injuria), (D. 9, 2, 32), or robbery (D. 47, 8, 2, 15), but not when the offence was against the person of a freeman (injuria). (U. 47, VI BONORUM RAPTORUM. 24 1 10, 34.) In this latter case the responsibility of the master was estimated as if each slave were free. It is to be noted also that a person might be responsible for abetting a thief when the principal was not. Persons in the potestas of parents or masters, if they steal from them, commit a theft, and the thing talcen becomes stolen property ; and no one, therefore, can acquire it by ustuapio before it returns into the owner's power. But the actio furti does not arise, because on no ground can an action arise between them. If, however, some one else has aided and advised the theft, since a theft is actually committed, he is accordingly liable to the actio furti J because, in truth, the theft was accomplished by his aid and advice. (J. 4, I, 12.) 3. Vicarious responsibility. And, again, the master of a ship, or an innkeeper, or a livery-stable keeper, is liable to an actio quasi ex maleficio for any loss suffered by wilful wrong or theft committed in his ship, or inn, or stable : provided always that the wrong-doing {maleficiujii) is not his personal act, but that of some one em- ployed by him in the management of the ship, or inn, or stable. For since in this case there is no action against him ex contractu, and since he is to some extent in fault for employing wicked servants, he is liable to an actio quasi ex maleficio. In these cases it is an actio in factum that is open, — a remedy given to an heir, but not against an heir. (J. 4, 5, 3.) 4. And finally, we must observe, the question has been raised whether a person under puberty, that takes away what is another's, commits a theft. It is held [by most] that as theft essentially implies a theftuous aim, a person under puberty incurs an obligatio on such a charge only if very near the age of puberty, and well aware, therefore, of the wrongful nature of his acts. (J. 4, I, 18 ; G. 3, 208.) II. RoBBEKT. Vi bonorum raptorum. Like furtum, this offence is confiued to moveables. (C. 9, 33, 1.) A robber is liable also to an actio furti. For who deals with what is another's more against the will of the owner than he that robs by force .? And therefore he is rightly called a shameless thief. There is, however, a special action grounded on that offence which the Prastor brought in, called vi bonorum raptorum.?- (J. 4, 2, pr. ; G. 3, 209.) This action, however, is open only against him that forcibly carries off goods with the intention to do a wilful wrong {dolo male). He, therefore, that is led by some mistake to think a thing his own, and in his ignorance of law carries it off by force in that spirit, supposing that an owner may take away what is his even by violence from its possessors, ought to be acquitted. ' The edict referred to is in the following terms : — " Si cui dolo malo, hominibus coactis damni quid factum esse dioetur, sive cujus bona rapta esse dicentur : in eum qui id fecisse dicotur, judicium dabo." This edict was probably introduced in the Praetorship of LuouUus, B.C. 77. According to the construction put upon it by TJIpian, a person acting alone was liable to the action : Jiominibus coactis was not essential. (D.47, 8, 2,7.) 242 OWNERSHIP. And in accordance with this, he that has carried off goods by force in that same spirit is not liable to an actio fitrti. (J. 4, 2, i.) A tax-gatherer carries off cattle of a farmer to satisfy a claim that turns out to be unfounded. He does not commit robbery, because he believes he has a right. (D. 47, 8, 2, 20.) In this action it is not essential that the property should be in bonis of the plaintiff. For whether it is in bonis or not, if only it is ex bonis (was part of his goods), the action will stand. And so, if anything has been borrowed or hired by Titius, or is even left in pledge or deposited with him on such terms that he has an interest in keeping it from being taken away — if, for instance, in the case of a deposit, he has promised to answer for negligence {culpa) — or if he is possessor in good faith, or has a usufruct or any other right creating an interest in preserving the goods from the robber — then we must say that to him this action is open. And by it he gains not ownership, but only what he, as victim of the robbery, claims to have had taken away from among his goods — that is, from among his substance. And generally we must say, that whatever grounds give rise to an actio furti in case of secret theft, those same grounds will support this actio for any one (if open force is used). (J. 4, 2, 2.) But a thoughtful care for such cases as these may only open up a way for robbers to satisfy their greed and pass unpunished. And therefore a wiser provision has been made in this respect by the constitutions of our imperial predecessors. For no one is allowed to take by force anything that is moveable or self-moving, even although he thinks that same thing his own. And if any one acts contrary to the statutes, if the thing is his own, then he ceases to be owner ; and if it is another's he must first restore the thing, and then make good also its value. And this applies not only to moveables that can be taken away by force, but (as the constitutions declare) to cases of forcible entry on any landed property, in order to stop men from every form of robbery on such pretexts. (J. 4, 2, i.) This remedy was introduced by Yalentinian Theodosius and Aroadius a.d. 389. (C. 8, 4, 7.) Previous to this enactment, a pei-son recovering his property by violence lost possession only, and thereby the position of defendant in an action for the recovery of the property. (b.) Offences against Usefulness. {Damnum Injuria.) Provision was made in the XII Tables for redressing wrong- ful damage to property, althougli there is some doubt as to the exact terms. Subsequent laws seem to have been made, but they were all abrogated by the lex Aquilia upon which hence- forth the law of wrongs to property depends. It was a plebis- citum carried by Aquilius, a tribune of the Plebs (B.C. 287). The terms of the lex AquiXia are given in the Digest. Lex Aquilia capito primo cavetur : Qui servum servamve, alienum alienamve, quadrupedem vel pecudem, injuria occiderit, quanti id in eo anno plurimi fuit, tantum aes dare domino damnas esto. (D. 9, 2, 2, pr.) Tertio autem capite ait eadem lex Aquilia : Caeterarum rerum, praeter hominem et pecudem oocisos, si quis damnum alteri faxit, quod usserit, fregerit, rupei-it DAMNUM INJURIA. 243 injuria, quanti ea res erit in diebua triginta proximis, tantum aes domino dare damnas esto. (D. 9, 2, 27, 5.) In its terms the Aquilian Law did not apply to injuries to freemen ; but, by a Praetorian extension, was made also to embrace that class of wrongs. It applied also to immoveables, as will be afterwards noticed ; but in the main it was con- fined to damage to moveable property, whether slaves, animals, or inanimate things. a. The constituent elements of wrongful harm. 1. The acts or defaults that constitute wrongful harm. The actio damni injuricE is established by the lex Aquiha. The first chapter provides that if any one wrongfully {injuria) kills a slave or four- footed beast reckoned among cattle belonging to another, he shall be con- demned to pay to the owner the highest value that property bore within the year preceding. (J. 4, 3, pr. ; G. 3, 210.) And the aim of the statute in providing not absolutely for four-footed beasts, but only for those that are reckoned among cattle {pecudes), is this : — It would have us know that the provision does not apply to wild beasts or to dogs, but only to those animals that can properly be said to graze {pasci) — horses, for instance, mules, asses, oxen, sheep, she-goats. Swine, too, it is held, are included, for they come within the term cattle, seeing they too graze in flocks. And so Homer says in the Odyssey, in a passage cited by Aelius Marcianus in his Institutes — " Him you will find sitting near his swine ; and they are grazing (i/i^ovra;) near the rock Korax, hard by the spring Arethusa." (J. 4, 3, i.) Elephants and camels, because beasts of burden, are included in this chapter. (D. 9, 2, 2, 2.) The second chapter of the lex Aquilia is not in use. (J. 4, 3, 12.) This chapter referred to adstipulati'o. (See Book II. Div. I., Accessory Contracts.) The third provides for every other kind of damage. Therefore if a man wounds a slave, or a four-footed beast reckoned among cattle, or wounds or kills a four-footed beast not reckoned among cattle, as a dog, or wounds or kills a wild bea^t, as a bear or lion, this chapter establishes an action to be brought against him. And wrongful damage {damnujn injuria datum) to all other animals, and also- to anything without life, gives rise to a claim under this part of the statute. For if anything is burned or smashed {ruptum) or broken, an action is established by this chapter. The one term ruptum might indeed suffice for all those grounds of action, for it means spoiled iforruptuni), in any way. And therefore not only burning and breaking, but cutting too, and crushing and spilling and destroying, or mak- ing worse in any way, are included under this term. Nay, an opinion has been given that if a man puts anything into another's wine or oil to spoil its natural goodness, he is liable under this part of the statute. (J. 4, 3, 13; G. 3, 217.) According to the interpretation of this law, only those injuries were understood as included that were caused by the- body to the body {eo-rpore corpm-i). But this narrowness was removed by the Prsetor. But it has been held that under this statute there is a direct action only if the man does the damage directly with his own body. And therefore 244 OWNERSHIP. against him that does damage in some other way utiles actiones are usually given. If, for instance, a man shuts up another man's slave or cattle so as to starve them to death, or drives a beast so furiously as to founder it, or terrifies cattle into rushing over a cliff, or persuades another's slave to climb a tree or go down a well, and he in climbing or going down is either kdled or injured in some part of his body, then a utilis actio against him is given But if a man thrusts another's slave from a bridge or from the bank into a river, and the slave is drowned, then, from the very fact that he threw him in, it is easily seen that it was with his body he did the damage, and there- fore he is liable under the lex Aquilia. But if it is not with the body that the damage is done, and no one's body is injured {nee corpore nee corpori), but in some other way damage has befallen some one, then as the aetio Aquilia is not enough, whether direct or utilis, it is held that the guilty person is liable to an actio in factum. For instance, if a man, moved by pity, frees another's slave from his fetters in order that he may run away. (J- 4, 3) i6; G- 3. 219.) VUlh Actio. An actio was said to be utilis when it was granted in cases to which it was not strictly applicable through the intervention of the Praetor. The object was accomplished by a modification of the formula by words wide enough to apply to the case it was intended to cover. The precise form in which this was done is not known ; no example of a formula of the kind is to be found in the sources. But it is likely that the alteration was slight and consistent with the original terms of the action. In the case of the lex Aquilia, the Praetor extended the scope of the statute by giving a remedy {utilis aetio) in case of indirect damage. The construction put upon the statute limited its application to direct damage. A curious parallel is to be found in English law, by the introduction of the action of trespass on the case, by the side of the original action for trespass. The word " utilis " is worthy of notice ; very frequently the Praetorian innovations were said to be *'utilitatis causa," No more striking example could be quoted of the wide and flexible authority exercised by the Praetor. Actio in factum. It would appear that cases arose within the mischief intended to be redressed by the lex Aquilia, but not covered by the statute, nor by the wider phraseology of the actio utilis. For these cases the Praetor introduced, says Pom- ponius (D. 19, 5, 11), actiones in factum accomodatas legi Aquiliae, elsewhere said to be ad exemplum legis Aquiliae. (D. 9, 2, 53.) Probably the name actio in factum was due to the circumstance that the Praetor did not attempt to meet the case by a variation of the terms of the statute, but stated in the formula that if the fact was so-and-so, then the judex should have power to condemn the defendant to pay compen- sation. Thus all reference to the authority of the statute was left out. Whether this was the case or not, cannot confidently be determined in the absence of examples of formulae in the actio utilis and the actio in factum respectively. Moreover, once the Preetor definitively altered the law, especially under the later Roman procedure, not much practical importance attached to mere difference of form of expression in the several actions. This may enable us to understand the conflict between the statement of the text as to the distinction between actio utilis and actio in factum, in the case of the lex Aquilia, and the examples cited from the Digest infra. The jurists keep up the distinction clearly between direct damage provided for by the statute, and damage that was not direct, but whether in the latter case it was actio utilis or actio in factum they did not take the trouble always to distinguish. But the statement in the text doubtless represents the correct theoretical distinction. A pours B's corn into the river and destroys it. This case is covered by the terms of the statute. (D. 9, 2, 27, 19.) DAMNUM INJURIA. 245 A strikes B's money out of his hand, and it falls- into a river and is lost. In this case there lies an actio in factum. (D. 9, 2, 27, 21 ; D. 19, 5, 14, 2.) A gives B's oats to his own horse, or drinks B's wine. As no damage was done to the oats or wine, the injury is indirect. UtUis actio. (D. 9, 2, 30, 2.) A midwife gives her patient poison by pouring it down her throat. This is a direct injury under the statute. (D. 9, 2, 9.) But if she merely gave it to the patient, who drank it herself, it is indirect, and there lies an actio in factum. (D. 9, 2, 7, 6.) A lights a fire, which it is B's duty to watch. B falls asleep, and in consequence the house is burnt. It may be said B did nothing, and A did no wrong. The injury being indirect, there lies against B the utiZis actio. (D. 9, 2, 27, 9.) A smoked B's bees, and drove them away or killed them. Ulpian says, as A did not kill them, but merely created the means of their death, the remedy is not by the direct action, but by an actio in factum. (D. 9, 2, 49, pr. ) This decision disagrees also with the distinction made by Justinian in the text, for when they are killed, the harm is done to the bodies of the bees. A held a slave while B killed him. B committed a direct injury, A only contributed to it indirectly. Against A lies an actio in factum. (D. 9, 2, 11, 1.) A scares a horse on which the slave of B is riding, and the slave is thrown off into a river and drowned. Against A lies an actio in factum. (D. 9, 2, 9, 3.) A cuts a rope by which a boat is moored ; the boat drifts and is lost. Against A lies an actio in factum^ (D. 9, 2, 29, 6.) A drives his cattle into B's field without B's authority, and allows them to eat the grass. Against A lies an actio in factum. (C. 3, 35, 6. ) A sets on a dog that bites B. If A held the dog and set him on, the injury is direct ; but if he did not hold the dog, the action is in factum. (D. 9, 2, 11, 5.) 2. The damage must be capable of being measured in money in order to support an action on the lex Aquilia. But when the damage cannot be so estimated, recourse may sometimes be had to the remedy for injuria. Thus, if a blow or injury to a slave does not depreciate his value in the market, it is not damnum; it may, however, be injuria. If the slave requires medical attendance, then he is considered as receiving damnum. (D. 9, 2, 27, 17.) It may, indeed, happen that some injuries (as castration) enhance the pecuniary value of a slave ; and in that case the remedy of the master is to sue for the wrong to the person {injuria). (D. 9, 2, 27, 28.) 3. The right that an owner has against men generally is not that the usefulness of his moveables shall not be impaired by any act- of theirs ; that would be putting it too wide, for men are not responsible for accident; but his right is that they shall not, by their malice- or negligence, impair the usefulness of his property. This delict is accordingly wider than injuria. There can be no injuria without intention ; damnum injwia may result from carelessness only. Hence a noticeable difference. A mistake as to the character of the person insulted or assaulted sometimes removed the attack from the category of injuria. But if a, man kills a slave under the belief that he is a freeman, 246 OWNERSHIP. be does not escape paying damages to the owner of the slave for his loss. (D. 9, 2, 45, 2.) He kills wrongfully {injuria) to whose malice (dolus) or negligence death is due ; nor is there any other statute to punish damage done otherwise than wrongfully. And therefore he goes unpunished that without negligence or wilful wrong does damage by some accident. (G. 3, 211.) And he that kills by accident is not liable under this statute, if only no negligence is shown on his part For otherwise, under this statute, a man is liable for negligence quite as much as for malice. (J. 4, 3, 3.) Therefore, if a man is playing with javelins, or practising, and pierces your slave as he is passing, a distinction is made. For, if the man is a soldier, and in the Campus Martius, or any other place where men usually train, the act does not imply negligence on his part ; but if any one else does such a deed, then he is chargeable with negligence. And the same rule of law applies to the soldier too if he does the deed in any other place than that set apart for soldiers to practise in. (J. 4, 3, 4.) And again, if a pruner, by breaking down a branch from a tree, kills your slave as he passes, then if this is done near a public road or one used by the neighbours, and he did not first shout out so that an accident might be avoided, he is cnargeable with negligence. But if he did first shout out and the slave did not care to take heed, the pruner is free from blame. And so too if he happened to be cutting at a place quite off the road or in the middle of a field, although he did not first shout out ; because there no out- sider had any right to go to and fro. (J. 4, 3, 5.) And further, if a doctor, after operating on your slave, fails to see to the healing of the wound, and therefore the slave dies, he is chargeable with negligence. (J. 4, 3, 6.) Want of skill, too, is reckoned as negligence; if, for instance, the doctor kills your slave by bad surgery or by giving him wrong drugs. (J- 4i 3, 7-) And if mules that the driver from want of skill cannot hold in run over your slave, the driver is chargeable with negligence. And even if it was from want of strength that he could not hold them in, though another stronger man could have, he is liable for negligence all the same. And the same decisions apply to the rider that cannot keep in his horse, whether from want 01 strength or from want of skill. (J. 4, 3, 8.) A sets his stubble or thorns on fire, and the flames are carried so far as to bum B's corn or vines. Is A responsible ? It depends on the circumstances of the case. If it was a windy day, and A did not take precaution against the fire spreadiiio-, or if he has not watched it, he is liable. But if he took all reasonable care, and a sudden gust of wind carried the flames, he is not. (D. 9, 2, 30, 3.) Thej that place traps to catch animals in roads or pathways are responsible for all damage ; but not if the traps are in places usually chosen for the purpose. (D. 9, 2, 28.) If, however, a person that has no right to place traps does so, and cattle grazing on the adjoining land have been caught in them, the person that set the.traps is responsible. (D. 9, 2, 29.) CONTRIBUTORT NEGLIGENCE. — Even a person negligently- causing an injury is relieved from blame if the damage is DAMNUM INJURIA. 247 accomplished only by the concurrent negligence of the sufferer. Hence there was no remedy when the sufferer had the power to escape from the danger, and did not exert himself to do so. He could only claim compensation when he either did not foresee the injury, or could not have helped himself if he had foreseen it. (D. 9, 2, 28, 1.) 4. In certain cases, when a man was so situated that he could not help inflicting some injury upon another's property in order to avoid a greater to his own, he was allowed with impunity to do that injury. A house might be pulled down to prevent the spread of flames from a fire ; and even if the precaution proved to be unnecessary, the owner of the house had no redress, unless it had been pulled down in an irrational panic, and not from a reasonable view of the danger. {D. 9, 2, 49, 1.) A ship is driven in a storm among the ropes anchoring another vessel, and it cannot be extricated except by cutting the ropes. The owner of the vessel in danger has a right to cut the ropes, and does not subject himself to any action for damages. The same rule applied when a vessel without any fault had got entangled among fisher- men's nets. It could cut its way out. (D. 9, 2, 29, 3.) /3. What persons (besides owners) may stie for wrongful harm? As in the case of furtum, the delict of damnum injuria might be committed against any one having a right in rem to a thing, although not owner (doininus). Under the Aquilian law, indeed, this was not so ; the only person that had a remedy under that enactment was the owner. (D. 9, 2, 11, 6.) Bat just as the Praetor gave a remedy for indirect as well as direct damage, so he provided a remedy to persons having an interest in the use- fulness of the property, although their interest fell short of full ownership. 1. The bona fide possessor had, Ulpian tells us, an actio in factum against all that did harm to his moveable property, even if it was the owner himself. (D. 9, 2, 17.) 2. The fructuarius and usuarius also had a remedy (ittile Judicium) after the analogy of the Aquilian law {ad exemplum legis AquilioB), even against the owner. (D. 9, 2, 11, 10 ; D. 9, 2, 12.) Hence if the owner has killed a slave that he bad given in usufruct to another, he must give compensation. 3. To one having a servitude. A has an aqueduct over B'» land, and it is pulled down by C According to a rule hereafter to be more fully explained, the aqueduct, being attached to B's land, belonged in law to B. A, however, can biing an action {actio utUis) against C for the damage. (D. 9, 2, 27, 32.) 248 OWNERSHIP. 4. Secured creditor. The right of a creditor to the thing pledged may be as effectually impaired by injuring the thing as by stealing it. He has, therefore, the same action as a bona fide possessor, even against the owner. (D. 9, 2, 17.) He may sue for the amount of his interest in the debt, and the owner may sue for the balance, if any. (D. 9, 2, 30, 1.) 5. Borrower. The borrower of clothes destroyed while in his custody by another has no remedy. The action must be brought by the owner (dominus). (D. 9, 2, 11, 9.) B. Duties of the owner of animals (res se moventes). I. Pauperies. On account of irrational animals that from wantonness or heat or their savage nature have done damage {pauperies), a noxalis actio is set forth in the statute of the XII Tables. (But if those animals are given up in satisfaction of the wrong, then the defendant is free, for so the statute expressly provides.) Suppose, for instance, that a kicking horse or an ox in the habit of goring has kicked or gored a man, then this action lies. But it applies to those animals only that are stirred up contrary to the nature of their kind ; for if they are wild beasts by blood, the action is void.' If, therefore, a bear escapes from his owner and then does harm, his former owner cannot be sued ; for he ceased to be owner when the wild beast escaped. Pauperies is damage done without injuria on the doer's part. For indeed no animal can be said to do an injuria, seeing it lacks sense. So much for the noxalis actio. (J. 4, 9, pr.) The Xn Tables gave an action if a quadruped had done harm. (&i quadrwpes pauperiem feciase dicetur.) (D. 9, 1, 1, pr.) If any other animal than a quadruped did the injury, an action was also provided by the Prsetor (utilis actio). (D. 9, 1, 4.) This rule applies only to tame animals, not to wild, for the reason stated in the ■ text. The analogy with noxa is kept up. Noxia is when a slave does that which in a freeman would be wrong ; pauperies is the damage done by an animal contrary to its usual nature, and therefore bearing a kind of resemblance to wrongs. If a tiger destroys a human being, it but acts according to its nature ; but when an ox gores, the act may be regarded as a breach of the good behaviour that is its second nature. In another point, the same analogy was preserved. The responsibility for the mischief followed the animal, and fell upon the person to whom for the time it belonged [noxa caput sequitur). (D. 9, 1, 1, 12.) No action lay if the animal were irritated or roused by another. (Paiil, Sent. 1, 15, 3.) Thus when a horse was struck by a dolo or a spur, and reared and kicked a person, it did not PAUPERIES. 249 commit pauperies. The injury was not the result of an oTitbreak of unusual badness, but was due to the mismanagement of the horseman; and therefore the owner of the horse is not re- sponsible, but only the person that irritated the horse. So if the fault is with the driver, or the mischief results from the beast being overloaded, or from the nature of the place where it happens, no responsibility attaches to the owner, but compensation may be demanded from the person in the wrong. (D. 9, 1, 1, 4.) II. Edict of the .iEdile in regard to animals that do not fall under the head of pauperies. It must be borne in mind, too, that an edict by the .(Ediles forbids us to keep a dog, a boar, a wild boar, a bear, or a lion, where there is a path in common use. And if despite this we do so, and a freeman suffers hurt, the owner will be condemned to pay such a sum as the judge shall think fair and right ; while for all other damage the owner must pay double the loss. And beside these actions allowed by the .fidiles, the ac/zo de pauperie too will stand. For when several actions, especially if penal, bearing on the same matter, meet, recourse to one never does away with another. (J- 4, 9, I-) Justinian omits the penalty of 20 solidi for killing a freeman. When a dog is chained in a house, and some one stumbling on it accidentally is bitten, the owner is not liable (D. 9, 1, 2, 1) ; but if the owner takes it into a place where he ought not, or by not keeping it suiSciently in hand allows it to slip, he is responsible for his ueghgence and must pay all the damage ; nor does he escape by the surrender of the dog. (D. 9, 1, 1, 5.) Second, RIGHTS TO Immoveables. A. Eights of owner against all men generally. (a.) Deprivation of simple possession. I. By Fraud. Removing landmarks (de termino moto). An immoveable, from its nature, cannot be stolen. Theft, therefore, has no application to land. There is, however, an analogous offence — removing the landmarks, and stealing land by inches. We are told by Dionysius Halicarnassus (Antiq. Rom. 2, 75) that Numa made a law on the subject. Although Numa may be regarded as a myth, there can be no doubt that as soon as private property in laud was recognised, the offence of removing landmarks had to be provided for. Numa, we are told, ordered every man to mark the boundary of his land, and to set up stones, which were made sacred to Jupiter Ter- 250 OWNERSHIP. minalis, and that, once a-year, on a day appointed, the people Bhould assemble and offer up sacrifices of grain and fruits at the boundaries. This is the mythical origin of the feast of the Terminalia. If anyone dared to remove or shift a landmark, he was devoted to the god that watched boundaries, and could be killed by anyone with impunity. The same sanction was extended to the Acfer Romanus, and the same punishment de- nounced against those that took from it to increase their ager privatus. The Agrarian law passed by Caius Caesar established a fine of 50 aurei for every landmark thrown down or shifted, and allowed anyone to bring the action. (D. 47, 21, 3, pr.) Nerva allowed a master to pay the fine, if his slave had removed a landmark without his knowledge ; and if the master refused, the slave was condemned to death. (D. 47, 21, 3, 1.) Hadrian made the offence a crime. (D. 47, 21, 2.) II. By Force. (De vi et vi armata.) As there could be no theft of an immoveable, so there could be no robbery of it. Still an owner might be ejected from his lands by force, and this constituted an infraction of his rights, for which a remedy was provided, not by the usual method of actions, but by interdict. (D. 43, 16, 3, 15.) 1. The ejectment of any person from an immoveable by force, with or without weapons, was a wrong remediable by interdict. The essential characteristic of it was, however, that it was available for a mere possessor, whether he was owner {dominus) or not. But it may be regarded as part of the legal protection of owners, for of course an owner out of possession could not be dispossessed by violence or in any other way. 2. A distinction was drawn between force with weapons {vis armata) and force without weapons {vis cottidiana). The most important distinction between the two forms of force was this : any possessor, however unjust his possession, was entitled to protection against armed violence ; but a person that had acquired possession by fraud or force, or was a mere tenant-at- will of the ejector, had no redress if he were dispossessed by force without weapons. (D. 43, 16, 14.) An interdict for recovering possession is usually given when a man has been ejected by force from the possession of a farm or a house. He has then given him the interdict Unde vi [which commences, Unde tu ilium vi dejecisii\. (J. 4. 1 5- 6 ; G. 4, 1 54.) By it the ejector is compelled to restore possession, if only the ejected did DISSEISIN. 251 not get possession from his opponent by force, by stealth, or by leave {nee vi nee clam nee precario). But if he did, he can be ejected with impunity. (G. 4, 1 54-) Sometimes, however, the Praetor will compel me, when I have ejected a man that got possession from me by force, by stealth, or by leave, to restore possession, — as, for instance, when I have ejected him with arms. For on account of the aggravation of the offence I must suffer punishment so far as to reinstate him in possession. (G. 4, 155.) Thus a person forcibly dispossessed could resort to simple force, without weapons, to recover possession. This did not, however, interfere with the right of self-defence. An armed attack could be repelled by arms ; and even if, in the vicis- situdes of the conflict, the possessors should be turned off their own land, they still had a right to use arms, if possible, to get back. The whole fight must, however, be a single transaction ; if, being turned out, the owner retired, and after recruiting his forces renewed the conflict, he would not be justified (non ex intervallo sed ex continenti). (D. 43, 16, 3, 9.) But in the time of Justinian this distinction was no longer regarded. By the interdict Unde vi the ejector is compelled to restore possession, even although the ejected got possession from him by force, by stealth, or by leave. But under our sacred constitutions, as we have said above (p. 242), if any man seizes on a thing by force, then if it is part of his goods he is deprived of its ownership ; if it belongs to another, he is compelled first to restore and then to pay its value to the victim of his force. And further, he that ejects anyone from possession by force is liable wnAsx ^& lex Julia devi for employing force, either private or public. Force is private if no arms are used ; but if arms are used to drive a man out of possession, then the force is public. And by the name arms is to be understood not only shields and swords and helmets, but also clubs and stones. (J. 4, 15,6 ; G. 4, 155.) If there are several ejectors, and only one has a rod or sword, it gives the char- acter of armed violence to the attack. (D. 43, 16, 3, 3.) Even if they came imarmed, but took them up in the fight (D. 43, 16, 3, 4), or brought arms and refrained from using them, it was armed force. (D. 43, 16, 3, 5.) It was essential, however, that possession should be gained by the exercise of force, and not by mere threats. (D. 43, 16, 3, 7.) (b.) Eights to the enjoyment and use of an immoveable. I. Secretly cutting down trees (arhorum ficrtim caesarum) (D. 47, 7) was a special ofience created by the XII Tables, but scarcely distinguishable from theft. When anything attached to an immoveable was removed, it was at once regarded as a moveable, and the person that took it as a thief. If the person that cut or destroyed a tree had no intention to steal, but had a simple desire for mischief, then he was responsible 252 OWNERSHIP. for damnum injuria. Now, as in cutting a tree a person could be actuated only by one of those two motives, either stealing or mischief, there would seem to be no necessity for creating the special offence arhorum furtim caesarum. The penalty fixed by the XII Tables was changed by the Pr«tor into a penalty of double the value of the trees. (D. 47, 7, 7, 7.) II. Secretly or forcibly interfering with an owner in the use of his land. (Interdict quod vi aut clam.y 1°. What acts constituted a wrong remediable by this inter- dict ? The interdict quod vi aut clam applied only to immove- ables (quaecunque in solo vi aut clam fiunt, D. 43, 24, 1, 4), and provided generally for most injurious acts done thereto. (D. 43, 24, 20, 4.) A pours something down B's well, and spoils the water. (D. 43, 24, 11, pr.) A has pushed B's vines on to his (A's) own land, and they have taken root, so that B has lost the right to remove them. (D. 43, 24, 22.) A carries away the stakes supporting B's vines. (D. 43, 24, 11, 3.) A pulls down B's house. (D. 43, 24, 7, 9.) A carries away B's tiles lying ready to be placed on his house ; this is theft. (D. 43, 24, 9, pr.) If, however, the tiles are on the house (I). 43, 24, 7, 10), whether actually fixed to the roof or simply lying thereon ( D. 43, 24, 8), it is not theft, but a, wrong remediable by the interdict. A lops the branches of B's trees. (D. 43, 24, 9, pr.) A removes from B's land or house any fixture {aliquid aedibus adfixum). (D. 43, 24, 9, 2.) This does not include keys, door-bars not fixed to the door, lattices or windows not fixtures. (D. 43, 24, 9, 1.) A goes upon B's farm and scatters the dung from his dung-heap. If A scattered it over fields already manured, which might be injured from the excess, it was a violation of B's right to his immoveable. (D. 43, 24, 7, 6.) A ploughs B's meadow, or digs a, ditch in his land. (D. 43, 24, 9, 3 ; D. 43, 24, ■ 22, 1.) But this was not an oifence when done by a tenant in due course of cul- tivation, even against the wishes of the owner, unless harm was done by it. (D. 43, 24, 7, 7.) A lops pollards (silva caedua) belonging to B. If they are unripe, it is an offence (D. 43, 24, 18, pr.) ; if mature, no harm is done to the owner, and there is no offence, unless A intends to carry them off for his own use ; in which case he commits theft. 2°. To constitute a wrong, the injurious acts must be done by force or secretly ; that is, as interpreted by the jurists, against the will or without the consent of the owner. Ulpian says the definition of Quintus Mucins Scaevola satisfied him. A person does anything by force {vi) when he does what he is forbidden to do by the owner. (D. 43, 24, 1, 5 ; D. 60, 17, 73, 2.) Three definitions are given in the Digest of secret damage. A person does "■ thing secretly [clam) when he does that which he knows to be disputed, or likely to be made the subject of dispute {Quintus Mucius Scaevola, ' Ait Prcetor : Quod vi aut dam actum est, qua de re agitur, id quum cxpericndi potestas est, restituas. (D. 43, 24, 1.) DAMAGE TO IMMOVEABLES. 253 D. 50, 17, 73, 2) ; or when he does something without the knowledge of his adver- sary, and has not informed him of it, provided he either expected, or might reasonably expect, a dispute with him (D. 43, 24, 3, 7, Cassius) ; or when he conceals an act from a person that he knows would forbid it, and either thinks, or has reason to think, that it would be forbidden. (D. 43, 24, 3, 8, Aristo.) As in the case of theft, the remedy here described may be resorted to by anyone having an interest in the immoveable, even against the owner. (Non solum domino praedii sed etiam his quorum interest opus non factum esse.) (D. 4i3, 24, 11, 14.) Hence by the usufructuary. (D. 43, 24, 12.) III. In certain cases the interdict uti possidetis, although having essentially a different scope (see Possessio, Appendix to Dominium), was admissible as a remedy for injurious acts done to land. To prohibit a man from building on his own ground was in a sense robbing him of possession. (D. 43, 17, 3, 2 ; D. 41, 2, 52, 1.) So when a tenant (inquilinus) refuses to allow the owner to enter and repair. (D. 43, 17, 3, 3.) When a neigh- bour places his rafters partly on my wall and partly on his own, he may be compelled to take them off by the interdict uti possi- detis. (D. 43, 17, 3, 9 ; D. 43, 17, 3, 6.) IV. Damage. Damnum injuria. The action founded on the Aquilian law, which has been explained in its application to moveables, was also available for similar damage done to immoveables, as setting a house or vine- yard on fire (D. 9, 2, 27, 7), or pulling down a house. (D. 9, 2, 27, 31 ; G 3, 35, 2.) B. Eights of owners of conterminous immoveables. I. " The Pr^tor says, when a tree from your house hangs over his house, if it is your own fault that you do not take it away, I forbid the use of force to hinder him then from freely taking it away and keeping it himself." (D. 43, 27, 1.)^ When a tree growing upon A's land overhangs the field or building of B, if A does not cut it down, he must suffer B to do so. In the case of a house, the rule is subject to no qualification, but in the case of a field it applies only to pruning trees to the height of 15 feet from the ground. (D. 43, 27, 1, 7.) The earliest law was in the XII Tables, and the object was to ' Ait Proetor : Quae arbor ex aedibus tuis in aedes illius impendet, si per te atat quominus earn adimas, tunc quominus illi earn arlorem adimere aiiqne habere, liceat vim fieri veto. 254 OWNERSHIP. prevent fields being injured by the shade thrown from trees. (D. 43, 27, 1, 9.) II. A right to gather fruits falling on another's land {de glande legenda). " The Praetor says, when acorns from his land fall on yours, I forbid you to use force to hinder him from freely picking them up and carrying them away every third day." ^ (D. 43, 28, 1.) The word acorn (glans) used in the interdict covers all fruits. (D. 50, 16, 236, l.)i III. Protection from flooding by rain water (aquae pluviae arcendae. D. 39, 3.) In the absence of a servitude no owner had a right to the rainfall from the lands of an adjoining proprietor. Every owner had a right to the water that fell on his own land (D. 39, 3, 1, 11), and to keep it back, even although he had been accustomed to let it pass on to his neighbour. (D. 39, 3, 21.) So when a man by digging on his own land dried up his neigh- bour's well, his conduct was not actionable. (D. 39, 3, 1, 12.) But every landowner had a right to prevent any change in his neighbour's land by which rain water not hitherto running on to his land was made to pass on to it. (D. 39, 3, 1, 2 ; D. 39, 3, 1, 22 ; D. 39, 3, 1, 14.) There was no remedy against the overflow of water from thermal springs (D. 39, 3, 3, 1), nor when buildings were injured, for the action was given for the protection of fields. (D. 39, 3, 1, 17.) But an owner had a right to alter the state of his land, so as to throw rain water on his neighbour when it was required for the purpose of cultivation. (D. 39, 3, 1, 15.) Thus, he could make any works for the purpose of reaping the fruits of his land (D. 39, 3, 1, 7), including under that designation the whole produce of land, such as chalk or stones, as well as grapes or corn. (D. 50, 16, 77.) Ditches made for the purpose of drying the land were also within the exception (D. 33, 3, 1, 4); not, however, to let the water run on to his neighbour, but to sink into the ground ; for, says Ulpian, no one has a right to improve his land by making his neighbour's worse. If the owner of the land that sufi"ers from the incursion of rain water has given his consent to the opera- • Ait PrcEtor: " Glandem quae ex illkia agro in tuum cadat, quomimts illi tertio quoque die legere, auferre liceat, vim fieri veto." OCCUPATIO. 255 tion that has caused the mischief, he has no remedy. (D. 39, 3, 19.) Nor is there any remedy when the construction of the works was authorised by the State (D. 39, 3, 2, 3), or had existed from beyond the memory of persons aUve. (D. 22, 3, 28 ; D. 39 3, 2, 3.) INVESTITIVE, DIVESTITIVE, AND TRANSVESTITIVE FACTS. Having examined the rights and habihties of an owner, we have now to inquire into the ways in which these rights may be acquired, transferred, or extinguished. Throughout this part of the exposition it is convenient to assume that the investitive or divestitive facts operate without restriction, and afterwards to point out the restrictions to which they are sub- ject. The following is the arrangement : — Investitive Fact. — Occupatio. Divestitive Fact. — Derelictio. Tkansvestitive Facts. A. Facts belonging to the ancient law [ex jure civUi). I. MaTicipatio. II. Cessio injure, III. Usvcapio. IV. Adjudicatio (see joint-ownership). V. Legatum. B. Facts belonging to the law as expanded and settled in the time of Justinian [ex jure gentium). I. Accessio. II. Traditio. III. Prescriptio. Resteaints on Investitive and Tbansvestitive Facts. A. Pex*sons that cannot be owners. I. Slaves. The Peeulium of slaves. II. Persons subject to the patria potestas. Peeulium castrense, etc. III. Wives subject to Tnanus. Dos, Parapfierna, Donatio propter nupiias. B. Things that cannot be owned. I. Res communes. II. Res publicae. (Puhlicae Viae; Puhlica Jlumina.) III. Res universitatis. IV. Res divini juris ; sacrae, sanctae, religiosae. C. Restraints on conveyance without valuable consideration. {Donatio.) Extension oe Investitive and Tbansvestitive Facts — Agency. Investitive Fact. I. Occupatio is the taking possession of what belongs to nobody (res nullius) with the intention of keeping it as one's property. 256 OWNERSHIP. The phrase " thing belonging to no one " (res nullius) is used in two very different senses. Thus we are told that — Things sacred, devoted, and hallowed belong to no one. For what is Heaven's by right is included in no one's goods. (J. 2, i, 7.) In a sense, wiat .Tustinjan here states is perfectly true. Things consecrated to the Church are not private property ; they do not belong to any specified individuals. But they are the objects of rights closely resembling ownership, and should not be classed with things that usually are objects of private property, but which for a time may happen to have no owner. The phrase " a thing belonging to nobody " should be restricted to things capable by appropriation of becoming the objects of private pro- perty. If the terms employed in the Institutes were correct, the maxim of Roman law, that what belongs to no one (res nullms) becomes the property of the first one that takes possession of it, would no longer be true.^ Occupatio, as a mode of acquisition, existed in the following cases : — 1. Living Things. — All creatures untamed that live in the air, on the earth, or in the water, become the property of the person that first takes or catches them. (D. 41, 1, 1, 1.) And by natural reason we acquire not only what becomes ours by delivery, but also what we have made ours by occupatio. For previously such things belonged to no one ; as, for instance, all that we take by land, by sea, or in the air. (G. 2, 66.) Wild beasts, therefore, and birds and fishes— all animals, that is, that are born on sea or land or in the air — as soon as any one takes them, become at once his property by the Jus Gentium. For what formerly belonged to no one, is by natural reason given up to him that takes possession {pccupanti). And it makes no difference whether one takes the wild beasts and birds on his own lands or on another's. Clearly, however, he that enters on another's land to hunt or to snare birds may be forbidden to enter by the owner, if seen in time. (J. 2, i, 12.) For other instances, see Acquisition of Possession. 2. Precious Stones in a state of nature. Pebbles, precious stones, and the like, found on the sea-shore, become at once by the/«j- naturale the property of the finder. (J. 2, i, 18.) An island that springs up in the sea (this happens at times, though rarely) belongs to the (first) occupier, for it is believed to be no one's. (J. 2, i, 22.) 3. Treasure-trove {Thesaurus). Treasure-trove is treasure deposited in a place for so long a time that no one can tell who is the owner of it.'' When treasure has been hid in the earth for safety, it is not treasure- trove, unless it is so ancient that the owner of it is unknown. ' Quod enim nuUius est, id rations naturcdi occupanti conceditur. (D. 41 1 3,) 2 Thesaurus est vetiis quaedam, deposUio pecuniae, cujus non extat memoria, ut jam dominum non haheat, (D. 41, 1, 31, 1.) DERELICTIO. 257 A person bought a house, and sent a workman to repair it. The workman found money hidden. If it were money that the previous owner could identify as his — as having been lost or left by mistalie — it must be restored to him. (D. 6, 1, 67.) Treasures that one finds in ground of his own, the late Emperor Hadrian, following what naturally seems fair, gave up to the finder. And his decree was the same with regard to things found by chance in a place that is sacred or devoted. If, again, a man finds treasure in another's ground when not engaged in searching for it, but by chance, he must give up half to the owner of the soil. And, similarly, if a man finds treasure in ground belonging to the Emperor, half goes to the finder, and half, as Hadrian decreed, belongs to the Emperor. And again, similarly, if a man finds treasure in ground that belongs to a city, or to the fiscus, half belongs to himself, and half to the Jiscus or city. (J. 2, 1, 39.) 4. Things were res nullius if their owners had relinquished possession of them with the intention of abandoning the ownership. 5. The property of an enemy captured in war was said to belong to nobody, and therefore to become the property of the captors by the right of occupation. All that is taken from the enemy becomes ours by natural reason. (G. 2, 69.) And again, all that we take from the enemy at once becomes ours by the yus Gentium. So far does this rule extend that even freemen, if taken, are reduced into slavery to us. And yet they, if they escape from our power and return to their own people, regain their former status. (J. 2, i, 17.) Immoveables taken by the Romans from an enemy were not treated as res nullius ; for they were not left as prize to the actual ca])tors, but were reserved for the State. When an enemy had driven the Romans out, but was afterwards ex- pelled, the lands were restored to their former owners, and were not appropriated by the State. (D. 49, 15, 20, 1.) Movealjles belonged to the individual captors, subject to the rules of prize. If they were the spoil of a common movement, they must be divided according to the rules of war ; but when they were captured by the enterprise of the individual soldier, he was not obliged to share them with his neighbours. This seems .to be the reconciliation of the apparently conflicting passages. (D. 49, 14, 31 ; D. 41, 1, 51, 1.) Divestitive Fact. I. Dereliction. And on this principle it seems quite true to say also, that if a thing is regarded by its owner as abandoned, then any one that takes possession forthwith becomes its owner. And it is regarded as abandoned when its R 258 OWNERSHIP. owner has thrown it away with the intention that it shall no longer be part of his property ; he ceases, therefore, at once to be the owner. (J. 2, i, 47.) But the case is quite different if goods are thrown overboard in a storm, in order to lighten the ship ; for they still belong to their owners. For it is manifest that they are thrown overboard not with any intention not to keep them, but in order that both owner and ship may the better escape the dangers of the sea. And therefore, if when they are cast ashore by the waves, or are still floating about at sea, anyone takes possession and carries them off with an intention to make gain out of them, he commits a theft. And a closely allied case is that of things that fall from a carriage in motion without the owner's knowledge. (J. 2, I, 48.) Covild a slave be a derelict? Or did a slave abandoned by his master become free 1 In certain cases where a sick slave was abandoned he acquired his freedom. But apparently a slave might be treated as derelict. (D. 9, 4, 38, 1.) Sempronius claimed Thetis as his slave, on the ground that Thetis was the child of his female slave. In defence it was proved that in a previous action brought by the nurse of Thetis for the maintenance of the child, the nurse had been told by Sempro- nius to deliver up the child to Lucius Titius, the father of the child. Lucius Titius, having paid the money demanded by the nurse, manumitted Thetis before the Presi- dent of the province. Was this valid ? Paul answered, that as Sempronius seemed to have treated Thetis, the child of the female slave, as a derelict, the manumission by Lucius Titius was perfectly valid, inasmuch as he had acquired the ownership of Thetis by occupatio. (D. 41, 7, 8.) Transvestitive Facts. The modes of conveyance in the Roman law fall into two gi'oups, which are distinguished from each other, according to the view of Justinian, by their origin ; some descending from the civil law (ex jure civili), others from the Jus Gentium. But " delivery " (traditio), which forms the characteristic mode of conveyance of the Jus Gentium, had a place, although a very restricted one, in the oldest law of Rome. The older modes of conveyance may be called formal, as contrasted with the later and non-formal. Austin enumerates among the elements constituting owner- ship, the unrestricted power of disposition. Historically, this is a relativelj' modern part of ownership. Ancient society, and in this expression Rome is to be included at some time prior to the XII Tables, admits slowly the power of free alienation. The chief influences retarding the growth of individual owner- ship are three. (1) In the case of land, tribal ownership pre- cedes ownership by households, and that in turn precedes ownership by individuals. It is only when the clan or tribe THE POWER OF ALIENATION. 259 ceases to be an effective power, and its place is taken by the higher organisation of a State, that households are permitted to deal with their share of the tribal land as separate property. (2) The joint or single family continues to be a corporate" owner, long before the head of the family is allowed to act as owner instead of as manager of the household estate. The joint family exists where the natural family is not broken up on the death of the father, but continues to enjoy the property imdivided, under the management generally of the eldest male. In India the joint family is still a living institution ; but our acquaintance with Roman history begins at a point where the joint family, if it ever existed among that people, as it probably did, was forgotten. (3) When alienation is allowed to the head of tlie family, frequently " ancestral property " is excluded from its operation. Our acquaintance with Roman law commences at too late a period to enable us to reconstruct from Roman sources a history of the steps by which individual ownership was established. At the time of the XII Tables, the paterfamilias is owner and not a mere manager or trustee of the family property. The power of testation is expressly recognised both in respect of familia and pecunia. There can be little doubt that at the date of the XII Tables, these words indicate two kinds of property. Familia may be compared with the '' ancestral estate " of Hindu law, and Pecunia with self-acquired property. But we have no positive information to justify any definite opinion. At all events, we can go so far as to say that " booty " was probably the fii'st case in which the right of the warrior to free disposi- tion was recognised. The spear was for ages the symbol of dominium ex jure Quiritium ; and the name Quirites means spearsmen. We are reminded that it was in the case of prize of war thaX filiifarnilias were first allowed to hold private property, and there is nothing unlikely in the supposition that the first case where the paterfamilias was permitted to act as owner instead of manager, was with respect of things taken in war. Gains says the ancients considered those things to be emphati- cally their own which they had taken from an enemy, and accord- ingly a spear was set up in the Centumviral Court, as it were to keep in mind the origin of private property. (G. 4, 16.) One of the most ancient species of Conveyance is the Partition of an Inheritance {judicium familiae erciscundae, i.e., dividundae). When a family broke up on the death of a pater- 26o OWNERSHIP. familias, if the sons could not agree as to the division, an appeal to some tribunal was necessary. The shares were allocated by a judicial decree. The transition was easy from the real to the fictitious use of a tribunal as a means of guaranteeing a per- son to whom property was transferred. In the Roman law, cessio in jure was resorted to freely as a mode of conveying pro- perty, and if a conjecture may be hazarded, property that was otherwise inalienable. Mr Poste (Gains, 2d edit, 171) thinks this form of conveyance older than mancipatio, which was intro- duced as a less inconvenient form, and confined to certain things. It is true that cesdo in jure could be employed not merely for the conveyance of res mancipi, but for res incorporates, such as tittela legitima, ususfructus, hereditas (G. 2, 153, Ulp. Frag. 19, 11 ; 11, 6), urban praedial servitudes (G. 2, 29), manumis- sion of slaves (p. 174), and emancipation of children under potestas (p. 212). The fact that cessio in jure could be applied to res mancipi as well as in the other cases, naturally sug- gests that it alone was at first employed ; but the informa- tion we possess hardly justifies us in accepting such a sugges- tion as proved. Looking to the heterogeneous character of the purposes for which cessio in jure was employed, the probability is that it was a device used for enabling alienation to take place where the law did not admit alienation. If mancipatio was introduced in the manner stated, it is rather difficult to understand why it should have been confined to rural servitudes. Moreover, there seems ground for believing that in the case of corporeal res nee mancipi, the ancient mode of conveyance was Delivery. (See infra). A. Formal Conveyances {Ea: jure civili). I. Mancipation (Mancipatio). Res mancipi are transferred to another by mancipatio ; and for this reason, indeed, are called res mancipi. And wherever mancipaiio\ii:>\dL% good, 171 jure cessio also holds good. (G. 2, 22.) What the process is, has been told in an earlier part of our commentaries. (G. 2, 23.) The form of conveyance has already been described under " Mandfium." In that way persons, both slave and free, are conveyed {mancipantur) ; and animals (including oxen, horses, mules, asses), for they are res mancipi. La,nded property too, whether in town or country, if res mancipi (as Italian lands, for instance, are), is usually conveyed in the same way. (G. I, 120.) But if a res mancipi is transferred neither by mancipatio nor by in jure cessio. . . . And further, we must observe that nexus is peculiar to Italian soil, and is inapplicable to provincial. For nexus can be applied to land only when it is res mancipi; and provincial soil is a res nee mancipi. But MANCIPATIO. 261 provincial soil tliat has the jus Quiriihtm, stands in the position of Italian soil, and therefore can be conveyed by mancipatio. (G. 2, 26. 26*, 27, as restored by Huschke.) And again, of things moveable, or rather self-moving, the following are res mancipi: slaves, male and female, and those tamed animals that are broken in as beasts of draught or of burden — oxen for instance, horses, mules, asses. Rural praedial servitudes are res mancipi j but urban servi- tudes are nee mancipi. Stipendiary and tributary provincial lands are also nee mancipi. (G. 2, 15.) Now the teachers of our school think that these are res mancipi from the moment of their birth. But Nerva, Proculus and the other authorities of the opposing school, think they are res mancipi only if broken in ; or if so excessively wild that they cannot be broken in, that they become res mancipi on reaching the age at which such animals are usually broken in. (G. 2, 15-*.) On the other hand, wild beasts are res nee mancipi, as bears, lions ; and also those animals reckoned with wild beasts, as elephants and camels ; and this is not affected by the fact that these animals are sometimes broken in as beasts of draught or of burden. And further, some of the smaller animals, — even of tamed animals, some of which, as we have said above, are res mancipi, — are classed as res nee 7nancipi. (G. 2, 16.) And, again, almost all incorporeal things are res nee mancipi, except servitudes over landed property in the country. These are res mancipi, although reckoned with things incorporeal. (G. 2, 17.) The passages from Gaius manifestly show that the group called res mancipi was based upon no logical considerations, but must be ascribed to the accidents of history. It included some moveables, as it were, capriciously, and immoveables partly by a geographical and partly by an arbitrary boundary. The res mancipi are characterised by the circumstance that they include things known to the Komans in the earliest times, and not such as became known only when they carried their conquests out of Italy. Thus immoveables out of Italy were res ncc mancipi; elephants and camels, although beasts of burden, are also res nee mancipi, because they were introduced at a late period. The circumstance that rights of way and rights to water-courses are res mancipi, but not rights to lights and others that arise only in crowded cities, shows that the group of res mancipi was formed when the Romans were in » purely agricultural stage. The costlier jewels (as to pearls, see Pliny, 9, 35, 53) were excluded, because they were unknown at the time when the distinction was made. May not gold and silver have been omitted for the same reason ? TJlpian and Gaius agree in stating that delivery (traditio) is the appropriate mode of conveyance of res nee mancipi. (Ulp. Frag. 19, 7 ; G. 2, 19.) " If I deliver to you a garment, or gold, or silver, whether by way of sale or gift, the thing becomes yours without any formality." (G. 2, 20.) It could hardly have been otherwise. Even at the stage when the paterfamilias is regarded not as owner, but as a mere manager, of the joint family property, he must have had power to receive or deliver the numerous articles required in the daily course of life. It would have been impossible to have recourse to cessio in jure ioi these innumerable little transactions. The probability is that the notorious and troublesome fonn of mancipatio was only required in the trans- fer of articles forming the permanent stock or capital of an agricultural community, as land, slaves, cattle, beasts of burden or draught ; where the right of the patcr- fam,ilias to alienate might not be so fully recognised. At all events, the requirement of mancipatio indicates that great publicity and solemnity were necessary to assure a purchaser, and to relieve him of all dread of disturbance from those whom the pater- 262 OWNERSHIP. familias represented. Once, however, the power of alienation was completely established, the cumbrousness of the mancipatio made it unpopular, and it was not required in the case of new articles of property introduced among the Komans ; notwithstanding that in the case of urban servitudes and camels, the reason of the distinction would have classed these with res mancipi. A distinction of some importance existed between moveable res mancipi and immoveable res mancipi. Moveable res man- cipi could not be transferred unless in the presence of the parties ; and so far was the origin of the word {manu capere) regarded, that not more could be conveyed than could be held in the hand. But immoveable res mancipi need not be in the presence of the parties, but might consist of parcels in diiferent parts of the country. (Ulp. Frag. 19, 6.) But in one point the conveyance of landed property differs from the con- veyance of everything else. For persons, both slave and free, and animals too that are res mancipi, must be present in order to be conveyed ; and not only present, but actually grasped by the receiver of what is given mancipio, from which comes the term for such conveyance, mancipatio, the thing being taken in the hand. But landed property is usually conveyed in absence. (G. I, 121.) The mode of conveyance that superseded mancipatio was "de- livery." As delivery could take place only when the parties were on or near the land to be transferred, it was often less con- venient than mancipatio. Hence there continued to be a reason for keeping alive the ancient mancipations for land in Italy. II. In jure OESSIO. Title by a fictitious surrender in court. 1. Injure cessio takes place thus : Before a magistrate of the Roman people, as the Prsetor, or before the president of a province, the man to whom the thing is being granted appears holding it, and makes his claim thus : " This slave, I say, is mine, ex jure Quiritium" Then after he has made his claim, the Prsetor asks him that grants it whether he will make a counter claim. And when he says no, or remains silent, then the Praetor makes over the pro- perty to the claimant. This is called a legis actio, and can take place even in the provinces before their Presidents. (G. 2, 24.) Often, however, indeed almost always, we use mancipatio. For when we ourselves can do it by ourselves before our friends, it is needless to seek out a harder way of doing it before the PrjEtor, or the President of a pro- vince. (G. 2, 25.) Three persons were thus required ; the owner who conveys {cedens), the purchaser (vindicans), and the Prsetor, who gives judgment (addicit). (Ulp. Frag. 19, 10.) It was "■ mode of alienation applicable both to res mancipi and res nee mancipi, to cor- poreal and incorporeal things. Thus a usufruct, or inheritance, or legal tutelage of a freedwoman, can be conveyed by this mode. (p. 260.) 2. Restriction special to in jure cessio. And finally, it must be observed that persons in -potestate, in manu, or in mancipio, can acquire nothing by itijure cessio. For since such persons can BONITARIAN OWNERSHIP. 263 have nothing of their own, it follows that they can of themselves claim nothing as their own before a court of law injure. (G. 2, 96.) BoNiTARiAN Ownership. And next, we must note that among aliens there is but one form of ownership {dominium). So that in each case a man either is the owner, or is in no sense an owner. And this was the law formerly among the Roman people ; for in each and every case a man either was owner ex jure Quiritium, or was in no sense an owner. But afterwards ownership parted into two kinds ; so that one man may be owner ex jure Quiritium, and another have the property in bonis. (G. 2. 40.) For if I transfer to you a res mancipi neither by ma7icipatio nor by injure cessio, but by simply handing it over, then the thing becomes yours in bonis, but will remain mine ex jure Quiri/ium until you by continued possession acquire it by usucapio. For as soon as the full time for usucapio has run, the thing is yours at once by absolute right, that is, both in bonis and ex jure Quiritium^ just as if it had been tj-ansferred by mancipaiio or injure cessio. (G. 2, 41.) The aim of the law of prescription (usucapio) was to heal defective titles ; the conditions under -which it applied will be stated presently. But a question arises, what were the rights of a purchaser, for example, that had obtained possession of a slave bought and paid for, but had not taken a conveyance by mancipaiio or cesnio in jure'? After the period uf M,s7icapjo had expired, he was owner (dominus ex jure Quiritium), and was entitled to all the remedies provided by law for owners ; but suppose, before that time had expired, some one, making an adverse claim, took away the slave, what remedy had the pos- sessor 1 He could not sue as owner, because he was not owner ; he could not sue the adversary as a robber, because the adver- sary set up a bona fide claim to the slave. It is possible that when interdicts were introduced (see p. 372, Fossessio), the purchaser was protected against violent dispossession ; but this remedy had imperfections of its own, and was subject to this special disadvantage, that it was not available against every possessor. In justice, however, a buyer, in the case supposed, ought to have as complete a remedy as if he were actually owner; and such a remedy was finally supplied by the Praetor by the aid of a fiction. Of the same kind is the actio called Publiciana. For it is given to a man that seeks to recover property of which he has lost possession ; property delivered to him for some lawful reason, but which he has not yet acquired by usucapio. Now he cannot in the intentio claim it as his ex jure Quiritium. By a fiction, therefore, he is held to have acquired it by usucapio, and being thus made quasi-owner ex jure Quiritium, he puts forward an intentio worded as follows : " Let there be a judex. If the slave that Aulus Agerius 264' OWNERSHIP, bought and had delivered to him had been in his possession for a year, if, in that case, the said slave, about whom the action is brought, would be his ex jure Quiritium, and so on." ^ (G. 4, 36.) For the meaning of intentio, see Book IV., Proceedings m Jure. Now those actiones of which we have spoken, and any like ones, are grounded on statute and on the jus civile. But there are other actions introduced by the Prastor in virtue of his jurisdiction ; actiones both in rem and in personam. And of these we must give instances in order to show what they are. Often, for example, the Prastor allows an actio z« rem, in which either the plaintiff affirms that he has acquired by quasi-«J«ira//o what he has not acquired by usucapio ; or, on the contrary, the possessor says that his adversary has not acquired by usucapio what he has so acquired. (J. 4, 6, 3.) For suppose that another's property is handed over to a man on a lawful ground, in the case of a purchase (for instance), a gift, a dowry, or legacies, and he has not yet become its owner. If now, by accident, he loses pos- session of that property, he has no direct actio in rem to recover it. For the actiones set forth by the jus civile are open only to those that claim as owners. But because it was doubtless hard that in such a case an action should be wanting, the Praetor brought in an action in which he that has lost possession affirms that he had acquired that property by usucapio, and so claims it as his own. And this is called the Actio Publiciana, because it was first put forth in the edict by the Praetor Publicius. (J. 4, 6, 4.) Cicero mentions a Quintus Publicius as Prsetor about B.C. 66. (Pro Clueutio, 45.) Some writers think it was introduced much earlier by another Publicius. After the Actio Publiciana was introduced, a buyer, without taking a title by mancipation, became, for nearly all purposes, owner. He could not, until his title was perfected, convey the property by mancipatio or cessio in jure to another ; but he could practically accomplisb the same object by simple de- livery. Why then, it may be asked, did the cumbrous form of mancipation survive"? Why did it continue to be employed until, at least, the time of Gains, and probably many years afterwards? A reason has been already mentioned why, in the case of land, mancipation should have been maintained. A conveyance of land by mancipation could be effected at any distance from the land, but a conveyance by simple delivery required t© be on the spot. In the case of slaves a different reason existed. No one but a legal owner (dominus ex jure Quiritium) cou:ld employ a piiblic mode of manumission ; under the Empire, the utmost that a person could do, whose title was not perfected by usucapio, was to make his slave a Latin (Laiinus Junianus). (G. 1, 17; G. 1, 33-35.) In every other ' Judex esto. Si quern, liomincm, Aulus Agerius emit (et is) d traditus est, anno posse- disset, turn si cum homimem, de guo agitur, ex jure (iuiritium ejus esse oporteret et reliqua. BONITARIAN OWNERSHIP. 265 respect, however, the imperfect was as good as the perfect title. The owner of a slave, sold and delivered, although he remained technically owner (domiims ex jure Quiritium), was not permitted to exercise any of the rights of an owner. (G. 1, 54.) Thus if an inheritance were left to the slave, it became the property of the buyer, not of the owner, who retained a mere naked title without any beneficial interest. (G. 2, 88 ; G. 3, 1C6.) In the time of Gaius the mancipatio was still employed, and the technical difference between Quiritarian and (as it has been termed by modern writers on law) Bonitarian ownership was still maintained. But between the time of Gaius and Justinian the mancipatio fell into desuetude ; and even the very name, so redolent of antiquity, of the old owner [dominus ex jure Quiritium) had become a puzzle to lawyers. Justinian tells us that the old distinction was obsolete, and he ordered the phrase dominus ex jure Quiritium to be expunged from the legal vocabulary, as serving no purpose but to perplex students on their first acquaintance with the law. (C 7, 25, 1.) The old Publician Action was, however, still referred to, and the edict of the Prsetor is quoted by Justinian.^ " I will give an action toany one that demands that which has been delivered to him on some lawful ground by another than the owner, and of which he has not acquired the ownership by usucapio." (D. 6, 2, 1, pr.) As given by Justinian, the edict omits words that must have at one time been in it, " or by an owner without mancipatio or cessio in jure,'' or words to that effect. By means of the Publician Action, therefore, any one could recover pro- perty from third persons if he had all the requisites of a title by usucapio, except only the lapse of the necessary time. III. Usucapio. Usucapio is the acquisition of ownership by possession for the length of time required by law.^ (Ulp. Frag. 1, 9, 8.) The full time for usucapio of moveables is a year, but of lands or houses, two years. This is provided by the statute of the XII Tables. (G. 2, 42.) And this rule vi'as adopted lest the ownership of property should remain too long imcertain. For the space of a year or two years — the time in ^ Si quis id quod traditur ex justa causa non a domino et nondum usucaptum petet, judicium dabo. ^ Usucapio est adjectio dor/iinii per continuaiioncm possessionia ttinporis Lege dqiniti. (U. 41, 3, 3.) 266 OWNERSHIP. which a possessor was allowed to acquire by usucapio—wzs long enough for an owner to look after his property. (G. 2, 44.) 1. The conditions necessary to acqiiisition per usucapionem. 1°. A certain length of possession. There is no difficulty in measuring the time, one or two years as the case may be, when the thing remains continuotisly in the possession of one person for the whole time ; but does the time run when the thing has passed out of the possession of the first holder? The answer to this question depends upon several circumstances. When the times of possession of two holders may be counted together to make a title, there is said to be an addition of possession {accessio possessionis). The following passage in the Institutes has suggested a doubt whether accession of this nature was permitted in usucapio, or whether it was first introduced when the newer kind of pre- scription — called long possession — was brought in. Cujas thought that the passage implied that no accession existed in the case of usucapio, but it seems hardly credible that the purchaser could not count the time of the vendor ; and the conjecture of Vinnius that Justinian refers to his usucapio of moveables in three years may be accepted as a' way out of the difficulty. Long possession that had begun to the profit of the deceased goes on without a break to his heir or bonorum possessor, and that though he knows the estate is another's. But if the possession by the deceased began unfairly, the heir or bonorum possessor, though ignorant of this, cannot profit by the possession. And a constitution of ours has settled that in usucapio too the like rules shall be observed, so that the time goes on, being reckoned without a break. (J. 2, 6, 12.) (1°.) Universal succession. — In this case the rule is as stated by Justinian. The good or bad faith of the universal successor is immaterial. Hence, if the deceased bought a slave that he believed to belong to the seller, but his heir knows that it did not, his heir may nevertheless continue the usucapio, a.\id. become owner when the necessary time has elapsed. The reason is, that the good faith required to support usucapio relates to the moment at which the possession is acquired; if the possessor afterwards discovers that he is mistaken, he is not hound to give up the thing he has bought. The knowledge of the heir, who is regarded not as a new person, but as continuing the legal personality of the deceased (D. 44, o, 11), is equivalent to USUCAPIO. 267 such a subsequent discovery on the part of the deceased, and therefore does not affect his title. A thing has been bought by the rfeoeased, but not been delivered to him in his life- time. It is first given to the heir, and the heir knows that it does not belong to the seller. The possession of the heir is tainted with bad faith from the first, and con- sequently he takes no advantage from the good faith of the deceased. (D. 41, 3, 43.) A person has kept a slave that he knew to belong to another, and dies. His heir is ignorant of the fact. The bad faith of the deceased prevents the heir acquiring it per usucapionem. (C. 7, 30, 3.) (2°.) Singular succession. Buyer and seller too reckon their times jointly, as the late Emperors Severus and Antoninus laid down in rescripts. (J. 2, 6, 13.) When a person acquires possession from another by gift, purchase, or otherwise than by universal succession, the bad faith of one does not vitiate the title of the other. Hence, if both possessors hold in good faith, the time of each is added to make usucapio ; but if either holds in bad faith, only the time of possession of the other is reckoned. (C. 4, 48, 3 ; D. 41, 4, 2, 17.) A acquires possession of a moveable in good faith, and after six months pells it to B, who, after keeping it five months, sells it to C. If B and C are ignorant of any defect in the title, C becomes owner in a mouth. (D. 44, 3, 15, 1.) 2°. The possession must be uninterrupted. An interruption of possession is called usurpatio (D. 41, 3, 2), and is either physical interruption (iiaturalis usurpatio), or legal interruption, when a hostile claim is set iip. (1°.) Natural or physical interruption {naturalls usurpatio) occurs when the possessor is ejected by force, or when a move- able is carried away by force or fraud. (D. 41, 3, 5.) A obtains a gift of a slave from one whom he believes to be owner, and within a year manumits the slave per vindictam. The donor of the slave was not really the owner. The manumission is not valid, because A was not owner {dominus ex jure Quiritiiim) ; but it interrupts the possession, as A deliberately resigned his right to the slave. (D. 41, 6, 5.) ' Exceptions. — Possession was not lost when a thing was pledged. The creditor had possession both in law and in fact, but his interest was not in the possession for its own sake, but merely as security for his claim, and for the purpose oi usucapio the possession of the owner was not regarded as interrupted. (D. 41, 3, 1(3.) The same rule was observed when an immoveable was let to a tenant-at-will (precarium). The tenant had, as will be shown 268 OWNERSHIP. afterwards, legal possession, but still it was not an interrnption to break the mucapio. (D. 41, 2, 36.) But if the creditor parts with the possession to another, by selling the thing pledged or otherwise, the usuoapio is broken. The same rule applies when the possession of a moveable is parted with on loan or for deposit ; the usucapio is not broken unless the borrower or depositee delivers the moveable to another. (D. 41, 3, 33, 4.) (2°.) Legal interruption (civilis naurpatio). Usucapio, properly speaking, was not interrupted by legal proceedings. (D. 41, 4, 2, 21; D. 41, 6, 2.) But in consequence of the general rule that judgment in an action proceeded on the facts as they existed at the time of the commencement of the action {litis contestatio), (Book IV., Litis Contest?), if the period of usucapio had not then expired, the owner could recover his property, although it had expired before judgment was given. 3°. The possessor, to become owner by usucapio, must believe at the time he obtains possession that he has a legal power of disposition {bona fides). (D. 41, 4, 2, pr. ; D. 18, 1, 27.) We may acquire by usucapio even things delivered to us by one that was not their owner, and that whe;her they are res mancipi or res nee mancipi, if only we received them in good faith, believing that he that delivered them was the owner. (G. 2, 43.) The belief, if erroneous, must have reference to a fact ; if it arose from a mistake in law, it profits the possessor nothing. (D. 41, 3, 31.) Seius buys a thing from a person that he knows has been interdicted by the Praetor from disposing of his property. He cannot gain by usucajno. (D. 41, 3, 12.) Titius purcha-ses a slave from a boy that he knows is a pupil, under the mistake in law that a pupil can sell without the consent of his tutor. Titius is not a bona fide possessor, and does not acquire by usucapio. (D. 41, 4, 2, 15.) At what moment must the good faith {bona fides) exist? Upon this question a controversy existed between the two schools of the Sabinians and Proculians. The difference of opinion came out most distinctly in the case of sale. When the price was agreed upon by the buyer and seller, the buyer at once acquired a right to the delivery of the thing ; but until it was delivered, he had no right, as against the world, to the thing itself. Which point, then, ought to be selected as the moment at which good faith should be required? — the moment of sale, when the right to delivery was acquired, or the moment when, by delivery, possession was actually obtained? The USUCAPIO. ' 269' Proculians urged that the time of sale ought to be looked to ; the Sabinians, the time of delivery; and this opinion, Ulpian tells ns, was adopted. Hence if between the time of sale and delivery the buyer came to learn that the seller was not owner, he obtained a possession tainted with a knowledge of illegality, and therefore failed to acquire by usucapio. (D. 41, 3, 10; D. 41, 3. 15, 3.) In the case of moveables, the good faith of the possessor seldom availed him anything, because moveables, if disposed of unlawfully, were generally regarded as stolen, and, as will be seen presently, stolen goods could not be acquired by usucapio. But sometimes it is otherwise. For if an heir, in the behef that a thing lent or hired out to the deceased or deposited in his hands forms part of the inheritance, sells that thing to some one that receives it in good faith, or gives it away as a present or as a dowry, there is no doubt that the receiver may acquire it by usucapio, since the thing is no way tainted by theft ; seeing especially that the heir that alienates in good faith, believing it to be his own, commits no theft. (J. 2, 6, 4 ; G. 2, 50.) And again, if the man that has the usufruct of a female slave believes her offspring is his, and sells or gives it away, he does not commit theft. For there is no theft where there is no theftuous aim. (J. 2, 6, 5 ; G. -i, 50.) And in other ways it may happen that a man may transfer to some one what is a third person's, yet without any taint of theft ; and so the possessor may acquire it by usucapio. (J. 2, 6, 6 ; G. 2, 50.) A farm that belongs to another anyone may obtain possession of without force, if it is lying neglected by the carelessness of its owner, or by his death without leaving a successor, or by his long absence. If, then, such a possessor transfers it to another that receives it in good faith, this new possessor will be able to acquire it by usucapio. And even although he that obtained pos- session of the farm while it was unoccupied knew that it belonged to some one else, yet this does not impair the claim to usucapio of the possessor in good faith. For the opinion is now quite set aside, that a farm can be the object of theft. (G. 2, 51.) Exceptions. — In some cases hona fides was not required. (l°.) On the other hand, again, it happens that a man that knows he is in possession of another's property may acquire it by usucapio. An object, for instance, forming part of an inheritance, if the heir has not yet obtained pos- session, anyone may possess. For he is allowed to acquire it by usucapio, if the object is such as to admit of usucapio. And this kind of possession and usucapio is ca.\\ed pro herede (in room of the heir). (G. 2, 52.) And so far is this allowance carried, that even landed property may be acquired by usucapio in a year. (G. 2, 53.) And the reason why even in the case of landed property the one year's usucapio obtains is, that formerly inheritances themselves were believed to be acquired as it were by usucapio, by possession of the inherited effects. (And that of course in a year ; for the statute of the XII Tables ordained that landed property should require 2 70 OWNERSHIP. two years for usucapio, all other property one year. An inheritance, then, seemed to fall under the '' all other property ; " for it is not landed, seeing it is not even corporeal). And though the later belief was that inheritances could not be acquired by usucapio, yet in regard to all property forming part of an inheritance, even landed property, the period of a year for usucapio remained. (G. 2, 54.) And the reason why so unscrupulous a possession and consequent acquisi- tion were allowed at all was this : — the ancients wished heirs to enter on inheritances with all speed, that there might be persons to perform the sacred rites then observed with the utmost care, and that the creditors might have some one from whom they could obtain what was theirs. (G. 2, 55.) This kind of possession and of usucapio also is called lucraiiva (gainful). For in it a man knowing that something is another's, yet makes gain there- from. (G. 2, 56.) But in our day it is no longer gainful. For at the instance of the late Emperor Hadrian, a Senaius Consulium was passed declaring that such acquisitions might be recalled. The heir, therefore, by laying claim to the inheritance, may recover the property from him that has acquired it by usucapio, just as if it had never been so acquired. (G. 2, 57.) But if there were a heres necessarius in existence, by the strict rule of law no one else could acquire the property by usucapio pro herede. (G. 2, 58.) These passages anticipate some observations that fall to made in regard to the history of Inheritance. (See Book III.) (2°.) Again, if property is mortgaged to the people, and is sold by them, and the owner comes into possession, in this case usureceptio is allowed. For land, however, it requires two years. This is the meaning of the common saying, that after a public sale of lands {praediatura), possession is regained by use {usurecipi). For he that buys from the people is called praediator. (G. 2, 61.) The meaning of this appears to be, that if the buyer does not turn out the owner within two years after the sale, he forfeits his purchase. 4°. Justus Titulus. Possession by mistake, on some untenable ground {error falsae causae), does not give rise to usucapio. As, for instance, when the possessor has not bought a thing, but thinks he has bought it ; or has not been given it, but thinks he has been given it. (J. 2, 6, 11.) The most usual case where this mistake arose was when a thing was conveyed to a man in a way that would have made him owner, but for the fact that the person executing the conveyance had no riglit to alienate the thing. This was not an error falsae causae. If there was no intention to transfer the ownership, as when possession was given to a mortgagee, there could not be a Justus tilulus, and the mortgagee did not acquire by usucapio. (D. 41, 3, 13.) 2. Special restrictions on acquisition by usucapio. A. As to persons. 1°. Certain persons could not be deprived of their property by adverse possession, on the ground that they were not in a posi- tion to assert their rights. The theory upon which usucapio was USUCAPIO. 271 based, was the presumed neglect of the owner. If an owner, after being allowed a reasonable time to discover and claim his property, made no claim, it was but fair that the innocent possessor should obtain a perfect title. If, however, the true owner were in a position where he could not protect his inter- ests, it was reasonable that the adverse operation of usucapio should be suspended until such time as his disability was re- moved. The suspension ought not, however, to go beyond that limit. (D. 4, 6, 37.) Hence the following persons were allowed to rescind a title acquired by usucapio, if they applied within one year from the time their disability ceased. (C. 2, 50, 3.) (1°.) Persons under the age of twenty-five years could rescind a title, even if their interests ■were looked after by tutors or curators, if the Prstor thought the application was made on good grounds. But if they were not defended, they were entitled absolutely to rescind the acquisition. (D. 4, 1, 8.) (2°.) Persons absent on the service of the State. This includes soldiers on actual service (D. 4, 6, 45), (not on furlough, D. 4, 6, 35, 9), army doctors (D. 4, 6, 33, 2), Governors of Provinces, and other officials (D. 4, 6, 36, 3), and the wives of such persons. (C. 2, 52, 1.) Their privilege lasted from the time they left home until they returned. (o°.) Persons in custody {in vinculis), or captured by brigands or pirates. (D. 4, 6, 9.) (4°.) Persons living in slavery (D. 4, 6, 11) until an action is brought claiming freedom. (D. 4, 6, 12.) (5°.) Captives taken in war. (D. 4, 6, 1, 1.) 2°. Certain persons cannot acquire by usucapio. On the contrary, again, if a man away in the service of the commonwealth or in the enemy's power acquires by usucapio the property of a citizen at home, then the owner is allowed, when once the possessor has ceased to be away in the service of the commonwealth, to lay claim to the property within a year, and rescind the usucapio. And the form of the claim is this ; the owner affirms that the possessor has not got the property by use, and that it is therefore his. And this sort of action, the Prastor, moved by a like desire for fairness, puts within the reach of certain others also, as one may learn from the larger volume of the Digest or Pandects. (J. 4, 6, 5.) This is the converse case. In the former, an absent owner was allowed to rescind a title acquired by usucapio, because he was not in a position to prevent the acquisition; in this case, an owner at home was allowed to rescind a title acquired by a person that, being absent, could not be sued. In the second case, the ground of relief was th^t, owing to his being beyond the jurisdiction, or from some other cause, an action could not sooner be brought. (D. 4, 6, 21, pr.) Thus rescission was granted a'^ainst Consuls or Prtetors after their year of office, because previous to that time they could not be sued ; but not against patrons at the instance of freedmen, or parents at the instance of children, because the Prsetor in those cases could allow an action if he thought fit. (D. i, 6, 26, 2.) In like manner, insane persons, or children that acquired by usucapio, could be sued after their disability was removed, and the acqui- sition rescinded. (D. 4, 6, 22, 2.) Again, the same remedy availed against those that by craft had prevented an action being brought against them. (D. i, 6, 24.) 2 72 OWNERSHIP. The action employed in these oases, and introduced by some Praetor, was called A ctio PuUiciana rescissoria. It must be brought within a year from the removal of the disability {C. 2, 50, 3), and it could be brought against the heirs of the persons that acquired by umcapio. (D. 4, 6, 30 ; D. 50, 17, 120.) B. As to things. As usucapio was a mode of acquiring ownership {dominium ex jure Quiritium), it follows that whatever things were incapable of being held in such ownership, were not susceptible ol usucapio. 1°. But sometimes, notwithstanding the utmost good faith in the possessor of a thing, usucapio never begins to run. As, for instance, when he is m possession of a freeman, of something that is sacred or devoted, or of a runaway slave. (J. 2, 6, i ; G. 2, 48.) 2°. Estates in the provinces, too, do not admit of usucapio. (G. 2, 46.) 3°. And formerly the res mancipi belonging to a woman in the tutela of her agnates could not be acquired by usucapio unless she had delivered them by authority of the tutor; for so the statute of the XII Tables provided. (G. 2, 47.) 4°. Property belonging to o\xr fiscus cannot be acquired by usucapio. But Papinianus gave a written opinion, that if unclaimed property has not yet been reported to "Cae. fiscus, any portion of it delivered to a purchaser in good faith may be acquired by him by usucapio. And so the late Emperors Pius Severus and Antoninus have declared in rescripts. (J. 2, 6, 9.) An edict of the late Emperor Marcus provides that the purchaser of an- other's property from xhe. fiscus may, when once five years have passed since the sale, successfully resist the owner of the property by an exceptio. And a constitution of Zeno too, of blessed memory, has provided well for those that receive anything from the fiscus by sale or gift, or any other title. For it provides that they are at once free from all concern, and must come out successful, whether they are sued or themselves go to law ; while against the sacred majesty of the Treasury an action may be brought at any time within four years by those that think that in virtue of their rights as owners, or as mortgagees of the property alienated, some actions are open to them. Our own imperial constitution too, lately published, makes the same regulations with regard to those that receive anything from our palace or that of the Empress {venerabilis Augustae), as are contained with regard to ahenations by 'Ca.t.fiscus in the constitution of Zeno just mentioned. (J. 2, 6, 14.) And last of all, it must be observed that the thing ought to be free from any taint in order that the purchaser in good faith, or other possessor on lawful grounds, may acquire it by usucapio. (J. 2, 6, 10.) 5°. Sometimes, however, notwithstanding the utmost good faith in the possessor of another's property, the time for usucapio never begins to run. (G. 2, 45.) For things stolen or possessed by force cannot be acquired by usucapio, not even if possessed in good faith during the long time of which we have spoken. For in the former case it is restrained by the statute of the XII Tables and the lex Atinia, in the latter by the lex Julia et Plautia. (J. 2, 6, 2 ; G. 2, 45.) And the bearing of tlie saying that in the case of things stolen or pos- USUCAPIO. 273 sessed by force lisucapio is forbidden by law [by the law of the XII Tables], is, not that the thief or possessor by force cannot in person acquire by usucapio (for, on another ground, usucapio is not open to them, because, namely, they are possessors in bad faith) ; but this — that no one else, although in good faith he buys or on other grounds receives from them, can have any right to acquire by usucapio. And hence, in regard to moveables, usucapio ■ by a possessor in good faith must be rare. For he that sells, or on any other ground delivers what is another's, therein commits a theft. (J. 2, 6, 3 ; G. 2, 49-50.) The Itx Atinia seems to have extended the law of the XII Tables to the case of ionafide possessors. It was passed about B.C. 198. A tutor fraudulently sella part of the property of his pupil. A tutor had a power of sale only so long as he acted in good faith in the administration of his pupil's property. The moment he attempted to cheat his pupil he was regarded as a th^ef, and the thing parted with was stolen goods [res furtiva). Hence It could not be 'aic^uired by a possessor even if ignorant of the fraud. (D. 41, i, 7, 3.) *" A tutor, in disregard of the express order of the Will by which he was appointed, jSoJd some slaves that on account of their skill the testator ordered to be kept for his ' heirs, to a purchaser ignorant of the prohibition : there can be no usucapio of the slaves. {C. 7, 26, 2.) A slave, to defraud his master, carries off some of his separate estate [peculium), and delivers it to G-aius. As soon as it is delivered it becomes stolen property, not susceptible of itsucapio. This is the more noteworthy, because as between the master and the slave such malversation did not constitute theft. (D. 47, 2, 56, 3.) A has stolen and carried off wool, and has made it into a garment. The owner of the wool can recover the garment, because there is no usucapio. (D. 41, 3, 4, 20.) A female slave is stolen by Balbus, and while in his possession gives birth to a child. Balbus sells the child to Titius, who is ignorant of the theft of the mother. The owner of the female slave can recover the child from Titius, because on account of the theft there is no usucapio. (C. 6, 2, 12.) A mare is stolen, and sold by the thief to a purchaser ignorant of the theft. The mare gives birth to a foal. The foal belongs to the purchaser (as soon as born), because it is considered part of the produce {fructus) of the mare. But the child of a female slave was not regarded in that light (as fructus), and hence the difference in the result. (D. 41, 3, 4, 18 ; D. i7, 2, 48, 6.) A female slave is stolen, and sdd by the thief to a purchaser ignorant of the theft She gives birth to a child. The purchaser has no right to either, and acquires none by usucapio. But if the slave had not conceived until she was in the possession of the buyer, her child would belong to him by usucapio (D. 47, 2, 48, 5) ; unless he discovered the theft before the birth. (D. 41, 3, 4, 18.) A sheep is stolen, and its wool clipped by the thief. The wool is not susceptible of usucapio. But if the sheep is shorn by a purchaser ignorant of the theft, the wool, as part of the produce {fructus), becomes his property at once without any usucapio. (D. 41, 3, 4, 19.) Sometimes even a thing stolen or possessed by force may be the object of usucapio. If, for instance, it comes back under the power of the owner, the taint attaching to the property is cleared away, and usucapio goes on. (J. 2, 6, 8.) It was necessary that the owner should not merely regain possession of the thing stolen, but also know that it had been stolen. (D. 41, 3, 4, 12.) This was provided for by the Ux Atinia. (D. 41, 3, 4, 6.) If the owner knew where the S 2 74 OWNERSHIP. stolen goods were, go that he could hring an action to recover them, he was con- sidered to have possession of them within the meaning of that enactment. (D. 50, 16, 215.) 6°. Immoveables taken by force. (Res immobiles vi possessae.) The sections above quoted refer to immoveables taken by force, as regulated by the lea Plautia (the date of which is sup- posed to be B.C. 89), and the lex Julia, supposed to belong to the reign of Augustus. As regards landed property, usucapio goes on more easily. A man may, for instance, without force, obtain possession of a spot left un- occupied by reason of its owner's absence or neglect, or because he has died and left no successor. The man, personally, no doubt, is a possessor in bad faith, for he knows that he has seized on land belonging to another. If, however, he delivers it to a third person that receives it in good faith, then that third person can acquire the property by length of possession, for he received it neither stolen nor possessed by force. For the opinion of some of the old writers, who thought a farm or a piece of land might be the object of theft, is now extinct. And the imperial constitu- tions provide that possessors of landed property ought in no case to be deprived of a long and undoubted possession. (J. 2, 6, 7.) A drives B out of possession, but does not himself enter. C, finding the land vacant, enters and takes possession. C is not a hofia fide possessor, and therefore cannot acquire by usucapio. He knows he is not owner. Before B returns, C sells to D, who is not aware of the nature of his possession. D can acquire by usucapio. (D. 41, 3, 4, 22.) The purgation is the same as in the case of stolen property. (D. 41, 3, 4, 26.) (See pp. 273-274.) B. Tbansvestitive Facts ascribed to the Jus Gentium. I. Accession {Accessio.) The doctrine of accession is the counterpart of occupation. By occupation, what belongs to nobody is acquired ; by acces- sion, what belongs to somebody is given to a new owner. This occurs when that which belongs to one person is so intermixed with the property of another, that either it can- not be separated at all, or cannot be separated without inflicting damage out of proportion to the gain. Upon this state of facts two questions arise — (1) Who is owner of the joint whole? and (2) What compensation, if any, must be made to the loser"? The answer to the first question is to be found in the idea of Principal and Accessory. This idea is very simple in many cases ; thus, dress exists for men, not men for dress ; buttons exist for coats, not coats for buttons. That ACCESSIO. 275 which can exist withmit another, but that other cannot exist "without it, or that for whose sake another exists, is the princi- pal to which the other is the accessory. It was laid down that the owner of the principal became the owner of the accessory. This technical rule sufficed to determine the technical question — which of the two is owner? but it leaves untouched the important practical question, what compensa- tion ought to be gi%'en to the loser ? As a general rule, it would be inequitable to deprive an owner of his property with- out compensation, merely from the accident of its becoming attached to, or mixed up inseparably with, the property of anotlier. In considering the cases stated in the Roman law, these two questions must be kept broadly separate. 1. Accession of land to land. 1°. And further, what a river adds to your field by alluvia is by the Jus Gentium acquired by you. And by alluvia is meant a latent increase ; and an addition by alluvia is an addition so gradual as to be at each moment imperceptible. (J. 2, i, 20 ; G. 2, 70.) But if the violence of the river sweeps away a part of your land and bears it over to your neighbour's land, where it rests, then plainly it still continues yours. (J. 2, I, 21 ; G. 2, 71.) But it is evident that if it sticks to your neighbour's land for a long time, so that the trees carried away with it strike root into his land, then from that time those trees are acquired for your neighbour's land. (J. 2, i, 21.) 2° If an island rises in a river, as often happens, its ownership depends on its position. If it lies in mid stream, it is common to the landowners on both banks of the river, in shares proportioned to the extent of each owner's lands, as measured along the bank. But if it is nearer one side than the other, it belongs solely to the landowners along the bank on that side. (J. 2, I; 22 ; G. 2, 72.) And if a river forks at any point, and the branches meet lower down, so as to make some one's land an island, then that land continues to belong to its former owner. (J. 2, i, 22.) An island floating on reeds or shrubbery belongs to the public, and not to either of the riparian proprietors ; because it is not connected with the laud, and the water in the river is public. (D. i\, 1, 65, 2.) Proprietors on the same side of the stream share an island according to the extent of their lands, measured by a straight line across the river from their boundary. (D. 41,1, 29.) If an island rises in a stream so that it belongs wholly to the owner on one side of the bank, and then another in the middle, is the line from which the measure is to be taken the bank or the island? It was held to be the island. {D. 41, 1, 65, 3.) 3°- But if a river altogether abandons its natural bed and begins to flow elsewhere, then that former bed belongs to the landowners on both banks of the river, in shares proportioned to the extent of each owner's lands as 276 OWNERSHIP. measured along the bank. And as for the new bed, it becomes subject to the same rights to which the river itself is subject ; that is, it becomes public property. But if, after some time, the river returns to its former bed, the new bed in turn comes to belong to the landowners on the bank. (J. 2, 1. 23-) ^ , „ Clearly the case is different when any one's land is entirely flooded. For flooding does not change the nature of the lands ; and therefore, if the water falls, it is plain that the lands belong to their former owner. (J. 2, I, 24.) An island rises in a river so as to belong wholly to A, the owner of one of the banks. Then the river deserts its old channel, and runs entirely between the island and A's bank. A retains the island and his share of the deserted channel. (D. 41, 1, 56, 1.) Exception. — These rules, relating to the accession of land to land, apply only to those lands whose boundaries are natural objects {arcifinii agri), such as a river, wood, or mountain. When land was held in specified quantities {agri assignati or limitati), the accessions belonged to the State, and not to tlie owners of the lands. These lands, apportioned in quan- tities, were generally obtained by conquest, and given away by the State, which reserved its right to accessions. (D. 41, 1, 16.) In one passage it is stated, however, that such acces- sions were regarded as nobody's land {res nullius), and be- longed to the first occupant. (D. 43, 12, 1 , 6.) It is manifest also that in accessions of land to land there was no room for compensation. Thus alluvial deposits come from the lands of many people, nobody could tell where. 2. Accession of moveables to land. 1°. Buildings to land. (1°.) The question of ownership. Besides, what anyone builds on our soil, although he builds it in his own name, by the Jus Naturale becomes ours. For all that is on the soil goes with the soil (superficies solo cedit). (G. 2, 73.) When a man builds on his own soil with materials that belong to another, then he is regarded as the owner of the building. For all that is built on the soil goes with the soil {pmne qicod inaedificatur solo cedit"). And yet he that was owner of the materials does not cease to be their owner. But, meanwhile, he can neither reclaim them {vindicare), nor bring an action for their production, because the statute of the XII Tables provides that no one can be forced to take out of his house a timber {tignurn), though belonging to another, that has once been built into it. The statute gives, however, an action for double its value, called actio de tigno injuncto ; and under the term tignum all building materials are included. Now the aim of this pro- vision was to avoid the necessity of having the buildings pulled down. But if for any reason the building comes down, then the owner of the ACCESSIO. 277 materials, if he has not already obtained the double value, may reclaim his own or bring an action for its production. (J. 2, 1, 29.) A contractor that builds with his own material for the owner of the land, a3 soon as the stones are fixed with mortar, loses his ownership in the material, which now becomes attached to the ownership of the land. (D. 6, 1, 39.) Tifcius places a new barn, made of wood, on the land of Seius. It is not fixed but moveable. It does not become the property of Seius. (D. 41, 1, 60.) (2°.) Compensation to the owner of the materials. (a) When the owner of the land takes material belonging to another without his consent, he is liable to a penalty of double the value of the things taken. (/3) When the material is fixed on the land by a person in possession, who believes himself to be owner, but against whom an action is brought by the true owner, the possessor can resist the action, unless compensation is given him. On the contrary, if a man builds a house with his own materials on an- other man's soil, then the house belongs to the owner of the soil. But in this case the owner of the materials loses his rights as such, because it is understood that they were alienated by his own will, supposing, that is, that he was not ignorant that he was building on another man's soil. And there- fore, although the house comes down, he will not be able to reclaim the materials. But of course it is agreed that if the man that builds has been put in possession, and the owner of the soil claims the house [or farm] as his, but will not pay the price of the materials and the workmen's wages [or other expenses on the building, the plantations, or the cornfields], then he may be repelled by the plea (excepHo) of fraud (dolus malus), seeing the builder was a possessor in good faith. (J. 2, i, 30 ; G. 2, 76.) A bona fide purchaser that, after notice of the insufficiency of his title, builds on the land, cannot resist an action by the owner, who refuses to give compensation : only he is allowed to take down the building at his own cost and carry it away. (D. 6, 1, 37.) (7) When a bona fide possessor has given up or lost posses- sion he has no remedy, and cannot obtain compensation unless his expenditure has been made with the knowledge of the owner. A person is in possession as heir, and repairs the family mansion ; he cannot re- cover his expenses except by keeping possession. (D. 12, 6, 33.) A husband or wife builds on ground received from the other as a gift. The gift of the ground is void (see Donations between Husband and Wife), but the house could be preserved by pleading fraud. (D. ii, 4, 10.) If I have given anyone property, but have not yet delivered it, and he to whom I have given it, although possession has not been delivered, builds on that spot with my knowledge, and if after he has built I have obtained possession, and he claims from me the property given him, and I plead in bar that the gift was void as exceeding the limits fixed by the lex Cincia, then can he plead fraud in answer to my plea ? Cer- 27S OWNERSHIP. tainly, for I acted fraudulently in suffering him to build and now withholding his expenses. (D. 44, 4, 5, 2.) (8) For if he knew that the soil was another's, his own negligence in rashly building on a soil that he was well aware was another's may be brought up against him. (J. 2, i, 30.) It ia stated, however, by Antoninus (a.d. 214), that if the building has fallen into ruin, the material, even in this case, returns to the former owner, provided that the original intention of the builder was not to make a present of the material to the owner of the land. (C. 3, 32, 2.) See, however, D. 41, 1, 7, 12. A constitution of Gordian (a.d. 240) makes a distinction between necessariae and uiiZes im-pensae. Necessary expense is to prevent deterioration ; beneficial expense is to promote improvement. A mala fide possessor can claim for necessary expenditure ; but in regard to beneficial expenditure, he ia permitted to carry away the improve- ments only, if he can do so without damaging the property. (C. 3, 32, 5 ; D. 5, 3, 38.) One of two joint owners of a piece of land builds upon it. Although, in a sense, this is building on another's land, yet the other owner could not reclaim the land without paying the cost. (C. 3, 32, 16.) These ru]es as to compensation apply only where the parties claim under hostile titles ; they have no application to such a relation as Landlord and Tenant. If a tenant has made a door or anything else joined to a building, he has a right to take it away, although it be a fixture, provided he gives security not to damage the house, but leave it as he found it. (D. 19, 2, 19, 4.) Whatever a farmer does to the land for its improvement, either by building or otherwise, gives him a title to compensation if such improvements have not been part of his bargain. (D. 19, 2, 55, 1.) A farmer that was not compelled by his agreement to plant vines did so, and increased the letting value more than 10 aurei yearly. The farmer in an action for rent brought against him can set off this improvement. (D. 19, 2, 61, pr.) 2°. Trees and plants to land. (1°.) Ownership. If Titius places in his soil a plant belonging to another, it will become his. If, on the contrary, Titius places a plant of his in Maevius' soil, the plant will belong to Maevius, provided that in both these cases the plant has taken root ; for until it takes root it continues to belong to its former owner. (J. 2, I, 31 ; G. 2, 74.) So completely, however, is its ownership changed from the moment it takes root, that if a neighbour's .tree so presses th<^ earth belonging to Titius as to take root in his field, we say that it is thereby made Titius' tree. For reason refuses to regard the tree as belonging to anyone except the owner of the field in which it has taken root. And, therefore, if a tree placed close to a boundary strikes its roots into a neighbour's field, it becomes com- mon property. (J. 2, I, 31.) And on the same principle as plants that unite with the earth go with the soil, so corn too that is sown is understood to go with the soil. (J. 2 1 ^2 • G. 2, 75.) ACCESSIO. 279 A difference existed between the case of buildings and plants. Even if the tree was afterwards torn up, it did not revert to its former owner. After it had fed on the soil, it was not exactly the same thing that was planted ; and it would be absurd to allow a man to recover, after thirty or forty years, a full-grown free, becauso the sapling from which it grew had been his property. (D. 41, 1, 26, 2.) The assertion in the text seems to be opposed to D. 47, 7, 6, 2, which states that although a tree near a boundary sends its roots into the neighbour's soil, it neverthe- less remains the property of the owner of the soil in which it first grew. The text is therefore explained as referring to those cases only where the tree is on the land of one man, and the roots wholly, or nearly so, in the land of his neighbour. (2°.) Compensation. (a) The owner of the land has sown or planted with what belongs to another. If he knew that the seeds or plants belonged to another, he commits theft ; if he did not, he must simply pay the owner their value. (D. 6, 1, 5, 3.) (/3) But as he that has built on another's soil can defend himself against a claim for the building on the part of the owner of the soil by means of the plea of fraud, as we have said, so by the aid of the same plea he can protect himself that has sown another's farm in good faith at his own expense. (J. 2, I, 32.) (y) A bona fide possessor, after eviction, and (S) a mala fide possessor, were subject to the same rules as in the case of buildings fixed on laud. 3. Accession of moveables to moveables. 1°. Writing on paper. (1°.) Ownership. Writing, too, although of gold, goes with the paper or parchment in like manner ; just as all goes with the soil that is built on it or sown therein. And, therefore, if on your paper or parchment Titius has written a poem, a history, or a speech, the owner of this work is not Titius but you. (J. 2, i, 33 ; G. 2, 77.) (2°.) Compensation. But if you claim your books or parchments from Titius, and are not ready to pay the expense of the writing, Titius will be able to defend himself by the plea of fraud ; if, that is, it was in good faith that he obtained possession of those papers or parchments. (J. 2, I, 33 ; G. 2, 77.) This is the same principle as in the previous cases. A man writes on paper that he believes to belong to himself ; it does not. He can resist the action of the owner, unless payment is made for the writing. It would seem, however, that if the owner had obtained possession there was no remedy. If the writer knew the paper did not belong to himself, then he could not complain of forfeiting his labour. 2°. Pictures. If any one paints on a surface {tabula) that belongs to another, some thmk the surface goes with the picture ; others that the picture, whatever it be, goes with the surface. But to us it seems better that the surface should go 28o OWNERSHIP. with the picture [an inversion of the usual rule, for which it is hard to give an adequate ground] ; for it is absurd that a picture by Apelles or Parrhasius should go as a mere accessory to a most worthless surface. And hence, when the owner of the surface is in possession of the picture, if the painter claims it without paying the price of the surface, he can be repelled by the plea of fraud. If, again, the painter is in possession, it follows that a utilis actio against him will be given to the owner of the surface ; and in that case, if the owner does not pay the expense of painting, he can be repelled by the plea of fraud — if, that is, the painter was a possessor in good faith. For it is manifest that, if the surface was stolen, whether by the painter or by some one else, the owner of the surface may bring an action for theft. (J. 2, 1,34; G. 2, 78.) It is at this point— pictures — that the doctrine of accession breaks down. Canvas can exist without the picture, but not the painting without the canvas ; and therefore, logically, the canvas is the principal, and the colouring the accessory. But this result was too absurd. The value of the picture was in general so much greater than the worth of the canvas, that to have adhered to logical consistency would have involved a sacrifice of real justice. Gains is at a loss to give a reason for the excep- tion of pictures ; and his only fault is, that he was not bold enough to disregard the merely logical distinction of principal and accessory in the case of writings also. 4. Accession of labour to moveables. {^Specification Hitherto the examples of accession have been instances of mere mechanical adhesion ; but the same idea was applied w^here, by means of labour, raw material had been made to change its character, and become a new manufactured article. This is specification, or making a new article. 1°. Ownership. When any finished article is made by one man out of material belonging to another, it is a common question which is the owner by natural reason ? is it the maker, or rather the owner, of the material? If, for example, a man makes out of my grapes, or olives, or ears of grain, wine or oil or flour ; or out of my gold or silver or bronze, some vessel ; or mixes my wine and honey into mead, or uses my drugs to make up a plaster or eye-salve, or my wool to make a garment ; or out of my timber frames a ship, a chest, or a seat ; — [then is the product made out of my property his or mine ? Some think we ought to look to the materials or substance ; that is, that the owner of the materials is owner of the product. Such was the opinion of Sabinus and Cassias. Others hold that the product belongs to the maker ; and this is the view taken by the authorities of the opposing school.] After the many doubts raised on both sides by the schools of Sabinus and Pro- culus, a middle opinion has been adopted. For it is held that if the finished product can be resolved into its materials, then the former owner of the materials is to be its owner ; if it cannot be so resolved, then the maker rather is to be its owner. For instance, a vessel can be melted down and resolved into the original shapeless mass of bronze or silver or gold ; while wine or oil or wheat cannot return to the earlier form of grapes or olives or ears of grain. But if a man makes any article partly out of his own materials, partly out of another's— out of his own wine, for instance, and ACCESSIO. 251 another man's honey makes mead, or out of drugs partly his own and partly another's makes a plaster or eye-salve ; or out of wool partly his own and partly another's makes a garment — there can be no doubt in this case that the maker is to be the owner ; for he has not only given his work, but also supphed part of the materials. (J. 2, i, 25 ; G. 2, 79.) Merely disengaging the grains from the ear does not, however, constitute a new species. (D. 41, 1, 7, 7.) 2°. Compensation. If, however, a man weaves purple belonging to another into a garment of his own, then, although the purple is the most costly, it goes with the garment as an accessory. But the former owner has an action for theft against the man that stole it ; and also can bring a condictio, no matter whether he, or some one else, was the actual maker of the garment. For though things that have perished cannot be reclaimed (vindicari), yet a condictio may be brought against thieves, and against certain other possessors. (J. 2, i , 26 ; G. 2, 79.) If the specificator believed that the material belonged to hira, he could not be sued for theft, but must give compensation. Confusion or mixture. Confusio, commixtio. Tliis is the case when things are mixed up without forming a new article. If two different owners choose to mix their materials — if they mingle their wines, for instance, or melt down lumps of gold and silver together — then the whole product is owned by both in common. And if the materials differ in kind, and therefore a distinct sort of thing is made — as mead, for instance, from wine and honey, or electrum from gold and silver — still the rule of law is the same ; for in that case, too, it is undoubted that the finished product is owned in common. And if it was by chance, and not by the owner's choice, that the materials, whether different or of the same kind, were mixed, the rule is still held to be the same. (J. 2, i, 27.) If, now, Titius' wheat is mixed up with your wheat by your choice, the whole will be owned in common ; for the separate bodies — that is, grains — that belonged distinctively to each, have been brought into union by your choice. But if the mixture takes place by accident, or is Titius' doing with- out your choice, then the whole is not regarded as owned in common ; for the separate bodies retain their own nature. And by accidents such as those the wheat is no more made common than a flock would be if Titius' sheep were mixed up with yours. But if either of you two keeps the whole of the wheat, an actio in rem for his due share of the wheat is open to the other. And it falls within the province of the judge to determine, at his discretion, the quality of the wheat belonging to each of you. (J. 2, I, 28.) Confusio is generally used with reference to the mixture ot liquids ; commixtio, of solids. The distinction taken is this : if the things are mixed by the consent of owners, tlie product belongs to them in common ; in other words, there is no room for accession. It is only when the consent of one of the owners 282 OWNERSHIP. does not exist, that a question of accession really arises. Then if the things are inseparable, the ownership is in common ; if not, each retains his property in the things, and can sue by the ordinary action for the recovery of property — the vindicatio. (D. 6,1,5,1; D. 6, 1,3, 2.) II. — Deliyert ( Traditio). From what we have said it appears that alienation takes place sometimes by the Jus Naturale—^js,^ for instance, by delivery : sometimes by the Jus Civile, as in mancipatio, in jure cessio, and usucapio, the right to which is peculiar to Roman citizens. (G. 2, 65.) By delivery also, according to the Jus Nalurale, we acquire property. For nothing is so agreeable to natural fairness as that the wish of the owner that wishes to transfer what is his to another, should be held valid. Cor- poreal things, therefore, of whatever kind, can be delivered, and by delivery be alienated from the owner. (J. 2, I, 40.) 1. The conditions necessary to acquisition by delivery. (1.) Transfer of possession. The transferrer must put the transferee in a position to deal with the thing to the exclusion of everybody else. This might be accomplished in the various ways, enumerated postea " Acquisition of Possession." Delivery by transfer of title-deeds. — It is stated in a constitu- tion of Severus and Antoninus (C. 8, 54, 1), that a gift and delivery of the title-deeds of slaves were equivalent to a gift and delivery of the slaves themselves. If this be taken as a fair and complete statement of the law, it would be an extreme instance of symbolical delivery. Savigny and others contend with great vehemence that the text is incomplete, and that it must be understood as implying that the slaves were in the presence of the parties at the making of the gift. Ac- cording to the view of these authors, the case stated is an example of delivery longa manu. There is some difficulty in acquiescing in this opinion, inasmuch as it attributes the opera- tive part of the transfer to something not mentioned in the text, and denies any eiiect to the words that profess to give a complete account of the transfer. Except by delivery, in the time of Justinian, property could not be conveyed. A mere agreement without delivery of pos- session, even if in writing, did not operate as a transfer of ownership.! (c. 3, 32, 27.) But to this rule an exception existed in the case of Societas. Traditionilus et usucapioniims dominia rerum non nudis pactis iransfei-untur. C. 2, 3, 20.) TRADITIO. 283 At no period in Roman law was a written document attest- ing a delivery necessary ; but such documents were commonly made as a sure record of the fact. (C. 7, 32, 2 ; C. 4, 38, 12.) It may be added that a delivery never gave the transferee any greater right than the transferrer possessed.^ (D. 41, 1, 20, pr.) Hence land subject to a right of way passes to the transferree burdened therewith. (D. 41, 1, 20, 1.) (2.) The delivery must be made with an intention to transfer the ownership. That, but nothing more, was required. It was not necessary that there should be any consideration, any quid pro quo, for the transfer. Usually, however, some con- sideration existed, and the delivery took place in consequence of a previous contract of sale {pro emptore), or legacy (pro legato), or bargain for a dowry (pro dote), or in payment of a debt (pro sohito) ; but there need be nothing more than a pur- pose of liberality (pro donato). The Eoman jurists expressed the relation of such facts to delivery in a somewhat peculiar way. They said that mere delivery (nuda traditio) was not a transvestitive fact of ownership, unless supported by what they called a justa causa or Justus titulus. A justa causa was one of the circumstances above mentioned — sale, legacy, dowry, pay- ment of debt, or free gift. It is more accurate to say that these are simply facts from which an intention to transfer ownership may properly be inferred. If A delivers a ring to B, there is no presumption that B is owner ; but on proving that the ring was bequeathed to B by a testator to whom A is heir, the nature of the transaction be- comes at once apparent. Again, if it is proved that A intended to make a gift of the ring to B, the meaning of the transaction becomes clear. If, on the other hand, the ring was given to B in loan, or for safe custody, the conclusion would be that A remained owner, and that the delivery of the thing did not transfer the ownership to B. The exposition of the Roman jurists is better suited to a practical lawyer than to a student of jui-isprudeuce. In proving ownership, what a Roman lawyer had to consider was the delivery of possession, and a justa causa, i.e., one of the facts that conclusively proved an intention to transfer. The real potent element is not the change of possession, but the inten- tion of the owner to transfer his property ; the delivery is ^ Nemo plus juris ad cdium transferre potest quam ipse haberet. (D. 50, 17, 54.) 284 OWNERSHIP. mei-ely a mode of unequivocally attesting the change; it marks the precise moment when a mere intention or obligation to deliver the ownership passes into an actual transfer of the ownership. The intention to transfer the ownership must exist at the time that delivery is made. Thus, if a person sold a slave that he knew to belong to another, but the slave was not delivered until the owner had ratified the sale, the delivery transferred the ownership. (D. 41, 3, 44, 1.) Nay, further, sometimes the wish of the owner, though its object is an indeterminate person, transfers the ownership of property. Praetors, for instance, or Consuls that throw gifts among the crowd, are ignorant what each member of the crowd is going to catch. And yet because it is their wish that what each catches should be his, they make him owner on the spot. (J. 2, I, 46.) (3.) Delivery does not transfer ownership (in the case of a contract of sale) until the price is paid. If things are given by way of a gift or a dowry, or on any other ground, they are undoubtedly transferred. But things sold and delivered are not acquired by the buyer until he has paid the seller the price, or in some other way satisfied him, as by getting a surety or giving a pledge. This is indeed a provision in the statute of the XII Tables ; and yet it is rightly said to be brought about by the Jus Gentiuin, that is the Jus Naturale. But if the seller is willing to give it to the buyer on credit, then it must be said that the thing sold becomes at once the property of the buyer. (J. 2, I, 41.) According to the construction put upon sale by the Koman law, the seller was understood not to intend to part with his property until he had got his money. If before receiving the price, or accepting something in lieu of it, he delivered the thing, he was understood to have done so without the intention of transferring the ownership. If the goods were sold on credit, the seller was regarded as parting with the ownership in confidence that the buyer would pay him, electing to accept a right in personam as against the buyer, instead of retaining his right in rem to the thing. The exceptional character of sale in regard to delivery is thus apparent, and not real. The intention to part with the ownership was held not to attach to the fact of agreement for sale but to the fact of payment ; and hence, in the language of the Roman writers, sale was not a justa causa unless coupled with payment of the price. In other cases, as in "if t dowry, etc., the transfer of ownership coincided with the delivery of possession. There was another peculiarity in the Law of Sale. When the title of the purchaser was completed by the delivery to him of the thing sold and the payment of the price, his ownership was regarded as dating not from the delivery or payment, whichever happened last, but from the date of the contract. The delivery and the payment had a retroactive effect, and made the buyer practically owner from the date of the sale TRADITIO. 285 Now, as sale is a contract formed by consent alone, the date of the sale is the moment when the thing to be sold and the price to be paid for it were agreed upon. (0. 4, 48, 1; D. 18, 6, 8.) The evidence of this retroactive effect is clear. In the first place, the buyer was entitled to all the produce and accessions {fructus et accessiones) of the thing from the date of the sale ; and (2) if the thing perished without fault imputable to any one, the loss fell entirely on the buyer, for res pent domino. 1°. The buyer was entitled to all the produce and accessions of the thing sold from the date of the sale, as the work of slaves, the offspring of slaves or animals, and all fruits not gathered. (Paul, Sent. 2, 17, 7.) Also, any inheritance or legacy given to a slave belongs to the buyer (D. 19, 1, 13, 18 ; D. 28, 5, 38, 5) : and he alone has the right to sue foi; harm done to the pro- perty. (D. 19, 1, 13, 12.) But if it were agreed between the buyer and seller that the seller should have the produce until the thing sold was delivered, then the sale had no retroactive effect. (Vat. Frag. 15.) In such a case the buyer would be free if the thing perished or were lost before delivery. (D. 50, 17, 10.) 2°. The property sold remained at the risk of the buyer from the date of the sale ( periculum rei). (C. 4, 48, 4 ; D. 18, 6, 7.) When once the contract for purchase and sale is made (and this is fully done, as we have said, as soon as the price is agreed on, if the business is transacted without writing), the thing sold is at the buyer's risk, although not yet delivered to him. Therefore, if the slave dies or is injured in any part of his body, if the house is either in whole or in part consumed by fire, if the field is either in whole or in part borne away by the violence of a river, or by reason of a flood or a whirlwind that dashes the trees to the ground, is lessened or changed for the worse — in all these cases the loss falls on the buyer, and he must needs pay the price, although he has not obtained the property. For all that befalls it, without fraud or negligence on the seller's part, leaves the seller free from responsibility. And if, after the purchase is made, any addition is made to the field by alluvion, that is the buyer's profit : for he that runs the risk ought to have the profit. (J. 3, 23, 3.) If, however, a slave that has been sold runs away or is stolen, without any fraud or negligence on the seller's part coming in, we ought to look carefully whether the seller undertook to guard him till delivery. For certainly if he did, the risk of such an accident lies with him ; if he did not, he will be free from responsibility. And so too with all other animals and things. The seller's action to reclaim the property, and his condictio^ he must make over to the buyer ; because certainly he that has not yet delivered the property to the buyer is still himself the owner. (J. 3, 23, 3A.) Lucius Titius bought lands in Germany, and paid a part of the price. He died, and his heir was sued for the residue of the price. His heir pleaded that the lands by a 2 86 OWNERSHIP. decree of the Emperor had been partly sold and partly given to veterans as prize. But Paul said this waa no defence. The eviction was not due to anything existing at the date of the sale, but to a subsequent act of the sovereign ; and therefore the losa fell on the buyer, who, although he could not get his lands, must still pay the price he promised. (D. 21, 2, 11.) Titius sells his slave Stichus, along vpith his peculium, to Gaius. Before Stichus is delivered to Gaius, he steals from Titius property that is not recovered. Gaius must suffer the loss, and Titius may deduct the amount stolen from the peculium. (D. 19, 1, 30.) If, however, the 'parties agreed that the thing sold should remain at the risk of the seller (D. 18, I, 78, 3; D. 18, 6, 1), their agreement was binding. But, independently of the agreement of the parties, in certain cases the risk remained with the seller. (r.) Res fungiUles. When the things sold were fungible, i.e., dealt with by number, weight, or measure (res quae pondere numero, mensura consistunt). In this case the principle is the same, but the date of the liability of the buyer is altered. It is not the date of the sale, but the time when the things are actually weiglied, numbered, or measured, that fixes the liability. (D. 18," 1, 35, 5 ; D. 18, 1, 3-5, 7.) If, however, fungible things are sold en bloc {per aversionem, D. 18, 1, 62, 2) as " all that lot of wine, or oil, or corn," they are at the peril of the buyer from the date of the sale, for such a contract differs in no respect from a sale of land or houses. (D. 18, 6, 1 ; D. 18, 6, 4, 2.) Wine sold becomes sour. If the wine was sold en bloc, the loss falls upon the buyer ; but if the agreement was for so many ampJwrae (not specifying which), the loss falls upon the seller, unless the amphorae had been selected. (Vat. Frag. 16.) If a flock is sold for one sum, the loss falls on the buyer from the date of the sale : if at so much a-head, then only from the time they are selected. (D. 18, 1, 35, 6.) (2°.) Conditional sale. When the sale is conditional, i.e., de- pends on some event future and uncertain, the rule is somewhat more complex. If the thing sold perishes altogether before the event occurs, the seller suffers the loss ; if it does not perish wholly, but is impaired or deteriorated, the loss falls on the buyer. (1). 18, (J, 8, pr. ; C. 4, 48, 5.) The reason is that, if the thing does not exist when the event happens, the seller cannot fulfil his obligation, because there is nothing for him to deliver ; but if the thing exists in however bad a state, be can deliver it, and acquit himself of his promise. (3°.) Sale of option. If the agreement were that the buyer should have the choice of two things, and one perished, the buyer took the other ; if both perished, he must pay the price agreed upon. (D. 18, 1, 34, 6.) TRADITIO. 287 2. Restrictions on delivery. 1°. There is a great difference between res mancipi and res nee maticlpi. For the latter can be transferred by bare delivery to another, if only they are corporeal, and so admit of delivery. (G. 2, 18-19.) Therefore, if I deliver to you a garment, or gold, or silver, whether by way of sale or gift, or on any other lawful ground, the thing becomes yours with- out any legal formality. (G. 2, 20.) And so too with landed property in the provinces, whether it pays taxes or tribute. Now, lands that pay taxes {stipendia7-id) are in the provinces that belong peculiarly to the Roman people. Lands that pay tribute are in the provinces that belong peculiarly to the Emperor. (G. 2, 21.) (P. 72.) Tax-paying and tributary lands accordingly are alienated in the same way. Now the lands so called are provincial , and between them and Italian lands there is now under our constitution no difference. (J. 2, i, 40.) 2°. Incorporeal things clearly do not admit of delivery. (G. 2, 28.) Some things, besides, are corporeal, some incorporeal. Corporeal things are those that by their nature can be touched — a farm, for instance, a slave, a. garment, gold, silver, and in short other things beyond number. Incorporeal again are those that cannot be touched, such as those that consist in a right, as an inheritance, a usufruct, a use ; or obligations in whatever way contracted. And it is not to the point to object that an inheritance includes corporeal things. For the fruits, too, that are reaped from a farm are corporeal ; and what one owes us under some obligation is often corporeal, as a farm, a slave, a sum of money. But the actual right of inheritance, the actual right of usufruct, and the actual right under the obligation, are incorporeal. (J. 2, 2, pr.-2 ; G. 2, 12-14.) " Thing " is a name generally for any object that can be apprehended by the senses, and chiefly the objects of touch. But in this sense the term would not serve the purpose of Gains. Is a contract a " thing " ? If not, how is Contract to be made a department of the law concerning " things " ? This difficulty was overcome in appear- ance by giving to the word " thing " a very wide definition. " Things " were said to be either corporeal or incorporeal. Corporeal things are things that can be touched ; but by incorporeal things the jurists did not mean such things as soul, spirit, light, heat, etc. ; they meant purely fictitious things. Incorporeal things were mere legal entities (g«ae m jure consistunt), such as usufruct, inheritance, oblufatio. But these are not " things " in the ordinary acceptation of the term ; they are bundles or aggre- gates of Rights and Duties. Things are thus divided into two classes : — (1) corporeal things ; (2) inheritance, usufruct, and other legal aggregates. Obviously this division is apparent, not real. We might as well divide animals into — (1) Vertebrata, and (2) Animal functions. But an examination of the Institutes shows that the division of " corporeal things " had really as little to do with " things " as the other division of "incorporeal things.'' What was really discussed under the head of " corporeal things " was ownership (dominium). The jurists were led into this error from the accident that ownership in their law was transferred by the delivery of the thing, whereas lesser rights than ownership were created in a different manner. In English law, where the distinction appears in the contrast of corporeal with incorporeal hereditaments, an estate for life is classed with corporeal hereditaments, because at one time the ordinary mode of cre.^ting such an estate was livery of seisin, the English equivalent of traditio. Usufruct — the Roman equivalent for an estate for life — could not be created by delivery, and accord- ingly it was classed among res incorporales. The association of ideas was strengthened, 288 OWNERSHIP. as Mr Poste points out, by the fact that in actions for ownership, the plaintiff claimed a res, and in actions for usufruct or servitude, he claimed a, jus. III. Prescription. (Possessio longi temporis.) The investitive fact of usucapio was limited in its application As belonging to the civil law, it operated only in favour of citizens, and of those Latins and others that had the commerdum. It did not apply to lands out of Italy, nor, with certain excep- tions, to servitudes. The Praetors supplied those defects^ of usucapio by the theory of possession for a long time. According to Ortolan, this loug possession was of a different character from usucapio. He says usucapio is positive prescription, long posses- sion is negative prescription. Long possession was a plea in de- fence (prescriptio, emceptio) ,'bj which the demand of the plaintiff could be resisted. (C. 7, 39, 8.) This is, however, a very different thing from negative prescription. After the time of prescription had elapsed, the possessor could recover the property, if he lost it, by vindication, the same as an owner. (0. 7, 39, 8, pr.) In two ways a right of ownership may be effectually destroyed — either by the acquisition of an adverse right by another, or by denying the owner an action after a certain length of dispossession. If the latter course is adopted, and the form of the law is — after so many years no action shall be brought — then it is immaterial whether the actual possessor has or has not had it during the whole of that time, or whether he believes it to be his property, or knows that it is not. This plan seems the simplest and most efficacious. But the prescrip- tion or defence of long possession in the Roman law was founded positively on the adverse rights of a bona fide possessor. A bona fide possessor after a certain length of time was con- firmed in his title, as against not only the owner, but all the world. The prescription of long possession was therefore very different from a statute of limitations, and was based on the claims of the possessor, not on the default of the owner, It was, therefore, in essence the same as usucapio. (D. 8, 5, 10, pr.) 1. Comparison of usucapio and possessio longi temperis. (1.) Prescription supplied the deficiencies of wsjicapto. Inas- much as usucapio was a mode of acquiring Quiritarian ownership, it followed that whatever was not an object of that species of ownership was not susceptible of usucapio. Hence lands out of Italy, of which the State retained the ownership, could not be acquired by usucapio, because no private person could be owner POSSESSIO LONGI TEMPORIS. 289 of them. But subject to the claims of the State, the possessors of those lands were virtually owners, and for this important class of property the Praetors and Emperors devised long possession as an equivalent for usucapio. Servitudes also were held to be excluded from usucapio after the lea; Scrihonia; but they were capable of being acquired or lost by long quasi-possession. (D. 8, 5, 10, 1.) Moveables also belonging to cities fell under twenty years' prescription. (Paul, Sent. 5, 4, 4 ; D. 44, 3, 9 ; C. 7, 34, 2.) (2.) Usucapio was for two years in immovables, and one year in moveables. Long possession was for ten years if plaintiff and defendant lived in the same province, twenty years if they lived in different provinces. (Paul, Sent. 5, 2, 3.) But although the time differed, the principle was the same. The object was to allow an owner time enough to see to his rights. In early times, two years was no doubt an ample allow- ance ; but when the confines of Rome extended over Europe and Asia, a very much longer time was necessary. (3.) Usucapio gave ownership, with all the burdens attached to it. Thus if the land were mortgaged, the two years' posses- sion gave the occupant the title of owner, subject, however, to the mortgage. In the same way he took the land burdened with whatever servitudes were attached to it. But long possession availed against both things, if no claim was asserted under them within the specified time. After ten or twenty years of non-claim, a mortgage or servitude was extinguished. (C. 7, 36, 2 ; C. 7, 36, 1 ; D. 44, 3, 12.) (4.) A minor distinction, of no practical moment, is that usucapio was not cut short by the litis contestatio, but only by judgment, although tlie judgment decided according to the rights of the parties as fixed by the time of the litis contestatio. But possession is at once stopped by the litis contestatio (C. 7, 33, 2), although not by mere notice of an adverse title of ownership. (D. 41, 4, 13.) 2. Change by Justinian. The yus Civile established the rule that when a man in good faith bought a thing, or received it as a gift, or on some other lawful ground, from another that was not the owner, in the belief that he was the owner, then he might acquire that thing by use. And the time fixed was for a moveable anywhere one year; for an immoveable two years, but on Italian soil only. The aim of this was that the ownership of property might not be uncertain. When this policy was decided on, the ancients thought the times named above were enough for the owners to look after their property ; but we have de liberately come to a better opinion. And, therefore, lest masters should be T 290 OWNERSHIP. despoiled of their property by undue haste, and lest this boon should be limited to a fixed locality, we have published a constitution on this subject. It provides that moveables may be acquired by use for three years, immove- ables by long possession — ten years, that is, for persons present, twenty for persons absent. And in both these ways, not only in Italy, but in every land swayed by our rule, the ownership of property may be acquired, if only the antecedent ground of possession was lawful. (J. 2, 6, pr.) To this prescription the old characteristics of usucapio attach. It confers the ownership (dominium), and it required the old conditions of bona fides and Justus titulus. Parties were said to be " present " when they both had their domicile in the same province, "absent" if in different provinces (C. 7, 33, 12) ; and if they were domi- ciled partly in the same province and partly in different provinces, the time required was ten years, counting eachtwo years of absence as one of presence. (Nov. 119, 8.) Restrictions on Investitive and Transvestitive Facts. a. persons to whom the ownership of things cannot be given. I. Slaves. — Slaves, as we have seen, had oi-iginallj no rights in respect of their own person; much less, then, in respect of external things. But although a slave could not be owner, nevertheless alienations of property made to him were not void. The slave was regarded as a conduit pipe, through whom acquisitions might flow to the master. Whenever anything was transferred to a slave in such a manner that if he were free he would be owner of the thing, his master became owner of it. (J. 1, 8, 1.) Peculium. There grew up, however, under the sanction of custom and public opinion, a quasi right of property. Masters found it for their interest not to exact the uttermost farthing — not to strip their slaves in all cases as completely bare of things they could call their own as the law allowed. By leaving the slave a. margin of his earnings, which he could by great industry increase, his total earnings would be so much augmented that the master would even profit by the remission. Slaves did a great portion of the intellectual as well as the manual work of Rome; and it was found expedient to reward their zeal and fidelity by allowing them the enjoyment and control of pro- perty. "Whatever was thus allowed them was called peculium. It consisted of the savings made by a slave, or of presents given to him in reward of his services, and which his master was willing he should keep as his own property. (D. 15, 1, 39.) FecuUum is a diminutive form of pecunia, indicating the trifling PECULIUM. 291 importance of its amount. (D. 15, 1, 5, 3.) The pecuUum might consist of land or moveables, or other slaves (in that case called vicarii), claims arising from contract (nomina), etc. (D. 15, 1, 7, 4.) Necessaries that the master was bound to supply- were not considered part of the peculiitm (D. 15, 1, 40) ; but even clothes might 1 u in the peculium if they were given to the slave for his perpetual and exclusive use, and therefore to be kept solely by him. But clothes given by the master for a certain purpose, or to be used only at stated times, as when serving at supper, were not included in the peculium. (D. 15, 1, 25.) Everything, however, turned on the intention of the master. If he intended to surrender to the slave the exclusive control and enjoyment of anything as his quasi property, then it was peculium ; otherwise not. What was the legal character of a slave's interest in his peculium f It must be remembered that a slave had no rights ; he could not sue either his master or any other person ; but for many purposes his acts bound his master. Thus, he might enjoy the power of alienation. This was not considered an essential right of the peculium. (D. 15, 1, 7, 1.) A slave's garments might be treated as peculium to the extent of exclusive custody and use, but not for the purpose of alienation. If, however, the master allowed the slave free administration of his peculium, the slave could alienate any portion of it without the conseut of the master. (D. 15, 1, 46.) If the slave had not obtained full administration, and sold anything out of the peculium, the buyer did not become owner. If the buyer did not know that the seller was a slave, he had bona fide possession, which might ripen by usucapio into ownership. (C. 4, 26, 10.) The power of pledging a thing goes along with, and is in- cluded in, the general power of alienation. (G. 4, 26, 6.) As we shall afterwards see, the peculium was liable for the debts con- tracted by the slave, and for all damages arising out of his conti'acts. The consent of the master and the delivery of the thing to the slave (unless it was already in his possession) created the peculium. (D. 15, 1, 4.) So the expressed intention of the master to put an end to the peculium at once destroyed it even without the necessity of redelivering the things to the master. (D. 15, 1, 8 ; D. 15, 1, 40, 1.) The peculium was also extinguished if the slave ran away or was stolen, or if nobody knew whether he was alive or dead. (D. 15, 1, 48.) 292 OWNERSHIP. II. Persons under the POTESTAS. Filiusfamilias, JiliafamiUas. A JUiugfamiUas wa.6 exactly in the position of a slave as regards property ; whatever would have been acquired by him through any investitive fact, if he had been independent, became the property of his paterfamilias. But by degrees the filiusfamilias obtained some rights of property, although never in Rome to the extent generally admitted in modern systems of law. 1. Peculium. The first mitigation was to allow the filius- familias to, enjoy peculium on the same terms as a slave (D. 15, 1, 1, 5.) Beyond this stage no improvement was made in his lot during the Republic. K filiusfamilias, in. the time of Cicero, even had he filled every office up to the consulship, or had, like Chicinnatus, twice saved the State, was not capable of, in the true sense of the word, owning the smallest coin cur- rent in Rome. 2. Peculium castrense . For the first time, under Caesar or Titus, a soldier filiusfamilias was partially relieved from his proprietary disability in respect of certain acquisitions. The property that he was allowed to enjoy was called peculium castrense, and it may be defined as consisting of whatever he obtained by gift from his parents or relatives for his equipment, or would not have acquired except on service. (D. 49, 17, 1.) Immoveables presented hy a father to his fliusfamilias, a soldier on service, are not part of his peculium castrense, because they have no connection with his service. But immoveables gained by the son as prize of war are part of his peculium castyense. (0. 3, 36, 4.) All that the fZiusfamUias carries with him to war, with the consent of his pcUer- familiaSj is pecvZvum castrense. (D. 49, 17, 4. ) Two comrades in war mal^e a fast friendship, and one leaves to the other his pro- perty by will. This is part of the peculium castrense. (C. 12, 37, 4 ; D. 49, 17, 19, pr.) Even if the testator was merely an acquaintance made through the service, the same result followed. (D. 49, 17, 5.) An inheritance left by the wife of a filiusfamilias on service was decided also to be In his peculium castrense (D. 49, 17, 16, pr. ; D. 49, 17, 13) ; rightly, if the inheritance was given as a sort of prize of valour ; but when no such motive could be assigned, the inheritance did not go to tlae peculium castrense. (D. 49, 17, 16, 1.) The dowry given to a filiusfamilias with his wife is not part of his peculium castrense, because it is got by marriage, not by service on the field of battle. (D. 49, 17, 16, pr.) A friend of a filiusfamilias bequeathed to him a house, and expressly stated in his will that it was to form part of the son's peculium castrense. This declaration has in itself no efficacy. If upon the facts, apart from that statement, the legacy would be held not to fall into the peculium castrense, no effect was given to the declaration. (D. 49, 17, 8.) In respect of his peculium castrense a son is absolute owner, PECULIUM CASTRENSE. 293 anrl he can deal with it as freely as if he were not under the potestas. He can receive such property (D. 49, 17, 5), and siie for it in a com-t of justice even against the expressed wishes of his paterfamilias. (D. 49, 17, 4, 1.) As to his testamentary power, see " Testamentum," under the head " Incapacity of Testator." 3. PecuKum quasi-castrense. By successive enactments the privilege conferred on soldiers of retaining their prizes and equipment in full ownership was extended to persons engaged in the higher civil offices. Coustantine (a.d. 320) enacted that the officials attached to the Imperial Palace (Palatini) should be owners of what they saved out of their salary, or obtained as gratuities from the Emperors, just as in the case of peculiwn castrense. (C. 12, 31, 1.) Theodosius and Valentinian extended the privilege to the officials of the Praetorian Prefect, clerks in the Chancery Court (exceptores), and the keepers of records (scriniarii). (C. 12, 37, 6.) Theodosius II. and Valentinian III. (a.D. 440) seem to have given a wider sweep to the privilege in the case of advocates of the Praetorian Court, or the Court of the City Prefect, giving them exclusive property in whatever they acquired from any soiu-ce. (C. 2, 7, 8.) Leo and An- themius (a.d. 469) allowed bishops, presbyters, and deacons free and full control over their clerical incomes. (C. 1, 3, 34.) To this list Justinian, with his greater zeal for the clergy, added sub-deacons, singers (cantores), and readers (lectores), giving to the clergy of every grade independent ownership over every- thing they acquired, thus rendering them, in regard to property, quite free from the most characteristic right of the potestas. (Nov. 123, 19.) Justinian, also, it must be remembered, released bishops from the potestas altogether. CNov. 81.) He had previously decided in the Code that all gifts from the Emperor or Empress were to be the separate property of the receiver, free from the potestas. (C. 6, 61, 7.) 4. Peculium adventitium. The proprietary disabilities arising from the potestas were broken in upon on another line. The rights of the father were limited with respect to property com- ing to the children from their mother by her last will, or on her death intestate. It seemed natural that the property held by a wife independently of her husband should not become his by her attempting to give it to her children. Constantino (A..D. 319) enacted that a father should have only a life-interest (ususfructus) in the property acquired by his children from their 294 ■ OWNERSHIP.. mother by her testament, or on her death intestate. The father was bound to manage it with all care, and conld not sell it to a purchaser, so as to give him a title even by pre- scription. (C. 6, 60, 1). Arcadius and Houorius (A.D. 395) extended the nile to property coming from the maternal an- cestors beyond the mother, and whether by gift during life or by will. (C. 6, 60, 2.) Theodosius and Valentinian (A.D. 426) gave onlj' a usufruct to the father in the property that a son got through his ivife, or a daughter through her husband. (C. 6, 61, 1.) Lastly, Justinian extended this limited ownership to all acquisitions of the son, except those made from the father's property. Our children of both sexes in our potestas in old times indeed acquired for their parents all that came to them (except, it is true, castrense peculium) without any distinction. And this became the property of the parents so absolutely that they might at pleasure take what one son or daughter had acquired and give it to another son or to an outsider, or sell it, or apply it in any way they wished. This seemed to us harsh ; and therefore, by a general constitution promulgated by us, we have both spared the children and reserved due rights to fathers. For the law as ratified by us stands thus : — If anything comes to the child from the father's property,^ this accord- ing to ancient usage, he is to acquire wholly for the parent ; for what hard- ship is it that what came because of the father should return to the father? If, again, the son acquires anything for himself in any other way,^ the usufruct in this indeed he is to acquire for his father, but the ownership is to remain with himself ; lest what his own toil or good fortune has added to his store should, by passing on to another, prove only a grief to him. (J. 2, 9, i.) Another change made by Justinian may be noticed. Con- stantine allowed a father on emancipating a child to retain a third of his property ; but Justinian changed the rule as follows. (C. 6, 61, 6, 3.) And we have made this arrangement also with regard to that class of cases where the parent, on emancipating the child, retained, if he wished, a third part of all the property that escapes acquisition by him. For under the earlier constitutions he had this privilege — the price, as it were, in a way, to be paid for the emancipation. Now it seemed harsh that the son should, as the result of his emancipation, be defrauded in part of the ownership of his property, and thus by the lessening of his effects lose all the honour conferred upon him by the fact that his emancipation made him sui juris. And there- fore we have resolved that the parent, instead of the third of the goods that he was able to keep as owner, shall keep the half of the goods, not as owner, but in usufruct. For so the son's property will remain with him untouched. ' Hence called ptculmm prof ectitium, because arising from {projicicns) the father's property. 2 Hence called peculium adventitium. . DOS. 295 while yet the father will enjoy a larger amount in coming to control not ■ a third, but a half. (J. 2, 9, 2.) III. WrvES IN MANU and free persons in mancipio were subject to the same proprietary disabilities as slaves or jiliifa- milias (Gr. 2, 86), and like these a wife could have pecuUum. But the institution of the manus disappeared so early that scarcely any interest attaches to it in respect of the law of property. Under the system of free marriage that took the place of manus, a proprietary institution of great historical interest and import- ance grew up. This was the dowry (dos), or contribution made by a wife's family for her support during the time of her mar- riage. At a late period in the Empire a corresponding contribu- tion was sometimes made by the family of the husband (donatio propter nuptias), and that we may consider in connection with the dowry. DOS. Definition. Dos is the property contributed by a wife, or by any one else on her behalf, to her husband, to enable him to support the expenses of the marriage. This definition includes the only essential feature of the dos that need at this stage be considered. Parapkema was that part of a woman's property that she reserved from the dos. The husband had no right to interfere with it or to burden it. (C. 5, 14, 8.) The practice was for a wife to make out an inventory [libellus) of the property she intended to use in her husband's house, if it was not to be in her dos, and to preserve the document after obtaining her husband's signature to it. The husband had no right to such reserved property ; and if he retained it, the wife could sue him by the same actions that she could bring against any other person. (D. 23, 3, 9, 3.) Relation of the Dos to the Manus. — The dos is an institu- tion of considerable antiquity. It is referred to by Cicero (Top. 4) in a manner that would seem to show that it was better understood than the manus ; and it was of such importance that Servius Sulpicius Rufus, who was consul B.C. 49, and died B.C. 42, wrote a book on the subject. That book is lost ; but Aulus Gellius makes a statement, as from the work of Rufus, that securities for the restitution of the dos on the dissolution of marriage were fii'st required when Sp. Carvilius Ruga put away his wife, by command of the censor, for barrenness. There is nothing incredible in the statement that about 200 years after the Decemviral Legislation the dos should have been in existence, as the XII Tables contained a provision by which 296 OWNERSHIP. married women were enabled to escape subjection to tbe manus. The facts, indeed, show that the decay of the manus began at an exceedingly early period ; or, to speak more accurately, the manus never, within the time covered by written records, existed with all the attributes that we must regard as originally inherent in it. The powers of a husband over his wife's person, at least such powers as he had over his children (and we must remem- ber that in law the wife was a daughter), seem to have been reduced almost to nonentity from the earliest dawn of history. It was natural that the emancipation of the wife's person should precede by a considerable interval the emancipation of her property. The interesting feature in the history of the wife's release from the disabilities of the manus is its abruptness, as compared with the liberation of children from the shackles of the potestas. We have traced the steps by which property gained in certain specific ways was withdrawn from the potestas, and the rights of the paterfamilias were ultimately reduced to a usufruct or life- interest, leaving the capital wholly to the children. Very different was the history of the manus. A woman was either wholly in or wholly out of the manus ; either in law the daughter of her husband, subject to his absolute power in regard to con- tract and property, or free and independent, capable of bargain- ing with him on equal terms. Was the transition from one condition to the other abrupt 1 Did the Roman matron emerge at once from slavery and become the equal of her husband? That seems improbable ; and we are left to conjecture by what steps the great change was accomplished. It is probably safe to assume that a wife ceased to be regarded as property when her husband obtained her from her friends without paying for her. A state of the law that was in perfect harmony with the buying of wives, must offend the sense of ]iropriety when marriage was entered into on equal terms. When we come to the Decemviral Legislation, we find no clear evidence of the real purchase of wives, although the form of marriage by sale continued long to exist. The time had there- fore come when the relation of husband and wife in regard to property should be determined by the existing moral standard, and not by an ancient theory surviving merely in a legal formality. The manus must yield to the dos. If we may hazard a conjecture, the dos was at first perhaps scarcely distinguishable from the manus. When a wife married DOS. 297 without the form of confarreatio or coemptio, her husband had no legal right to her property; bjit if she remained with him a year, and did not stay away three nights, she passed iiuder his manus. Perhaps the first bargains were that the husband should have certain property in place of the manus. Whether this ever existed as a distinct stage we know not, but another step in advance, and we are on sure ground. The father gives certain property to the husband to support the wife, on condition that if he (the father) survive the wife, he shall recover from the husband as much as he gave him on the marriage. During the Republic, the husband (even in the absence of the manus) was absolute owner of all the wife's property given to him, subject to an obligation to return the property if the wife should die, leaving her father to claim it. It was not until the Empire that the process was effectually begun that ended in depriving the husband of the character of owner, making him in substance a trustee, with the privilege of taking the annual produce of the property during the con- tinuance of the marriage. 1. Dos prof ectitia is the contribution made by the wife's father, or other asoeBdant on the male side, to the husband for the support of the wife. (D. 23, 3, 5, pr. ; D. 23, 3, 5, 13 ; D. 23, 3, 5, 1 ; D. 23, 3, 5, 6.) 2. Dos adventitia is the contribution made by the wife herself, or by anyone else except her father, or other ascendant on the male side. (C. 5, 13, 1.) 3. Dos receptitia is the contribution made by anyone under (2), with the express agreement that the property shall be returned to such person on the dissolution of the marriage. Eights and Duties. A. Rights of the Husband. I. To the corpus of the property. A distinction must be drawn between permanent and perish- able property. As regards fungible things — i.e., things dealt with by weight, number, or measure {quae pondere, numero, men- sura constant) — the property is given absolutely to the husband, subject to an obligation to return the same kind of things and the same quantities, in certain events, on the termination of the marriage. (D. 23, 3, 42.) Thus, if money is given to the hus- band, it is simply a loan without interest ; he has the use of the money until the end of the marriage, with the chance of never having to restore it. But even in the case of things that admit of being used, and returned after the marriage, as land or slaves, if the husband had the option of returning the things or paying a fixed price, 298 OWNERSHIP. he was absolute owner ; and if the property were accirlentally destroyed, the loss fell entirely upon him. (C. 5, 12, 10.) In this case the property is said to consist of res aesiimatae. (C. 5, 12, 5.) But if it were agreed that the wife, not the husband, should have the option of taking back the things, or their vahie, the husband did not acquire the uncontrolled ownership, (C. 5. 23, 1.) L. Titius accepted from hh wife Seia as part of her dowry a slave Stiohus, taken at valuation {aestimatus), and had possession of him for four years. Did Titius become owner by umcapiol Certainly, if the slave was not stolen (res furtiva) ; and if TitiuB did not know that the slave belonged to another than his wife. The umcapio counts from the marriage. Thus Titius, not Seia, became owner. (I'rag. Vat. 111.) It is in the case of things not fungible, and not taken on valuation, that the much contested question arises — Was the husband owner (dominus), or was his interest confined solely to the rents and produce during the marriage? The true answer to this question must be historical. In the beginning probably the husband was owner, in the fullest sense of the word — perhaps even without any obligation to return the property on the dissolution of the marriage. The first step towards de- spoiling him of the ownership was when the father of the wife giving the dos (and that was doubtless the usual arrangement) insisted upon having it back if he should survive his daughter. Step by step various restrictions were imposed on the husband, until at length, although still called owner, he was divested of nearly every attribute of ownership, and reduced to the posi- tion of a tenant. The difficulties introduced by these gradual changes into the nomenclature of the law are amusingly shown by the irritated and yet half-uncertain tone adopted by Justinian in the constitution in which he deprived the husband of the last rag of ownership. As ownership {dominium) is purely a technical entity, the best test to apply is perhaps the action that the husband could use. The action appropriate to domi- nium was the vindicatio ; and it was settled law (a.D. 287) that to the husband alone belonged the vindicatio (C. 5, 12, 11), and not to the wife. (C. 3, 32, 9.) Justinian, in changing the law, speaks of the ownership of the husband as a legal subtlety that obscured and defaced the true relation, and says that the property in truth (naturaliter) continued in the wife during the whole time. At the same time he shows a curious deference to the prejudices of the profession, so to speak, and endows the wife either with the real action {vindicatio), or, if that is toy DOS. 299 strong, with a first and indefeasible mortgage over it, in pre- ference to all creditors. (G. 5, 12, 30.) A husband could manumit the slaves forming part of his wife's dos, either during his lifetime or by his will. (C. 5, 12, 3.) The only restriction was that, if he were insolvent, he could not give them liberty in fraud of his wife, who was a creditor for their value. (D. 40, 1, 21.) This is a clear instance of the exercise of ownership, because only the dominus ex jure QiiiHtium could give complete freedom to a slave. If a slave were made heir to a stranger, it was only his owner (dominus) that could authorise him to accept the inheritance. This power the husband enjoyed in respect of a slave forming part of the dos. If, however, the husband acted wrongly, and either did not require the slave to enter on a lucrative inheritance, or required him to enter on one that entailed loss, he was responsible for the loss. To avoid this risk, the husband was advised not to take any action himself, but to leave it entirely to his vrife ; if she desired the inheritance, the slave was momentarily delivered to her as owner, on the condition that after the slave had accepted the inheritance, the wife should give him back to the husband, again to form part of the dos. (D. 24, 3, 58.) Alienation by the husband. — The power of alienation is another test of ownership. Undoubtedly ownership may exist without that power, as in the case of children and the insane ; but there is a distinction between a disability imposed, as in these cases, for the benefit of the owner himself, and one imposed on a nominal owner for the benefit of other persons interested in the property. In the latter case it is to a certain extent dis- establishing the so-called owner. For lands given as dowry cannot by the lex Julia be alienated by the husband against the woman's will ; and that though they are his own, and given him as dowry [by mancipatio, or in jure cessio., or usucapio. And whether that rule of law relates to Italian lands only, or also to provincial, is doubted.] Now we, correcting the lex Julia, have put this on a better footing. For the statute applied to landed property in Italy only, and forbade it to be alienated against the woman's will, or to be mort- gaged even with her consent. Both points we have amended. And now it is forbidden either to alienate or to burden {obligatio) even provincial lands ; and neither can go on even with the woman's assent, lest the weakness of the female sex should be turned to the ruin of their substance. (J. 2, 8, pr. ; G. 2, 63.) The lex Julia de adulteriis et de /undo dotali was passed by Augustus. It applied to houses as well as land. (D. 23, 5, 13, pr.) Under the head of dotal land (fundus dotalis) was included land inherited by a slave forming part of the dos. {D. 23, 5, 3, pr.) The changes of Justinian are given in C. 6, 13, 1, 15. On the principle that the greater includes the less, the husband could not burden his wife's land with a servitude, nor could he release a servitude belonging to it. (D. 23, 5, 5 ; D. 23, 5, 6.) A husband acquires the ownership of land belonging to Titius, which is burdened with a servitude in favour of land forming part of his wife's dos. According to the 300 OWNERSHIP. rule of law, when the ownership of the land entitled to the servitude, and of the land burdened with the servitude, united in the same person, the servitude was extinguished. Suppose the wife was divorced or survived the husband and recovered the dotal land, was she deprived of tl.e servitude ? In strict law she was, but her husband or his representative was required to pay damages if he did not re-establish the servitude. (D. 23, 5, 7, pr.) The effect of an alienation by the husband against the lex Julia, and therefore also under Justinian's legislation, was to convey nothing to the transferee if the wife afterwards had any right to recover the land. The alienation was wholly void. (D. 23, 5, 3, 1.) But the husband, if he ultimately became entitled by survivorship to the dotal land, could not avoid his own act by pleading the prohibition of the lex Julia. As against him the alienation was valid. (D. 23, 5, 17 ; D. 41, 3, 42.) II. To the income or produce of the property (fructus). In the case of things reckoned by number, weight, or meas- ure (res fungihiles), or of things taken upon valuation {res aestimatae), the husband's right of ownership is absolute, and applies equally to the thing itself and its produce. But in respect of the property that he must return, or that he may have to return at the end of the marriage, a different rule prevails, and the husband is entitled only to the income or annual produce (fructus). The object was to enable him to defray the expense of the marriage.* In the ease of slaves, the husband was entitled to their services, or to their wages if he let them out ; but not to the children of female slaves. So strongly was it held that the offspring of slaves could not be treated simply as fructus, that even a special agreement between husband and wife to that effect was void. (D. 23, 3, 69, 9.) On the other hand, the young of animals were held to he fructus, and to them the husband was entitled after keeping up the number of the stock. (D. 23, 3, 10, 3.) The distinction thus drawn between slaves and animals is interesting as a mark of the regard paid by the Romans to the dignity of human nature, but does not seem otherwise to rest upon any solid ground. In the case of land, the husband was entitled to the annual crops or rents. He could cut for firewood and lop pollards (silm caedua), but he was not entitled to the larger trees even > Quum enim ipse onera mairimonii mbeat, acguum, est mm cliam frucius percivei-e (D. 23, 3, 7, pr.) DOS. 301 when they were thrown down by the wind. The wife was owner of the trees. (D. 24, 3, 7, 12.) He could open quarries or mines, or work those already opened, but he could not charge the expenditure against the estate. (D. 23, 5, 18, pr. ; D. 24, 3, 8, pr. ; D. 24, 3, 7, 14.) III. Compensation for unexhausted improvements. When a husband was entitled, not to the corpus of the property, but only to its produce, the question arose, what expenditure was he entitled to charge to the estate, and what ought to be defrayed out of the accruing income 1 In other, words, what expenditure must he pay himself, and what could he charge as a debt against his wife, or other person entitled to the property after the dissolution of the marriage? The answer turned upon the nature of the expenditure, and for this purpose the object of the expenditure must be considered. The Roman lawyers contemplated a threefold object : — 1. Necessary expenditure (impensae necessariae) ; that is, out- lay required to prevent the deterioration or loss of the property (impensae, quibus non factis, dos deterior futura sit). (Ulp. Frag. 6, 15 ; D. 50, 16, 79, pr.) Another definition given by Paul throws an instructive light upon it. It is, says that jurist, such outlay as, if not made by the husband, would render him liable in damages to the wife to the extent of the loss caused by his neglect. (D. 25, 1, 4.) Repairing a house. (Ulp. Frag. 6, 15.) Planting new treea in place of those decayed. (D. 26, 1, H, pr.) Building a granary, or even, in some cases, a mill. (D. 25, 1, 1, 3.) Medical attendance on slaves. (D. 25, 1, 2.) Kearing vines, or making nurseries for the use of the land. (D. 25, 1, 3, pr.) Necessary expenditure, although made without the know- ledge or consent of the wife, could be charged against the estate ; but not all necessary expenditure, — not what was spent to get in the crop or other produce, but only what was spent for the permanent improvement of the property. (D. 25, 1, 16.)^ The caution is given that no general and exhaustive defi- nition of necessary outlay can be given, but that each case must be considered with reference to the kind and amount of the outlay (D. 25, 1, 15) ; because if the expenditure is trifling it ought to be charged to current income, and not to ' Nos generaliter d^niemus muUum interesse, ad perpetuam utilitatem agri vel ad earn quae non ad praesentis temporis pertintat, an vera ad praescntis anni fructum. Si in praesentis, eum fructihus hoc compensandum ; si vera non Juii ad praesens taa- tum apta erogatio, necessariis impensia compuiandum. (D. 25, 1, 3, 1.) 302 OWNERSHIP. the corpus of the estate. Thus in the examples above oited of repairs to houses, medicine for slaves, planting vines, etc., if the amount in question is small, it must be charged to the year's produce. (D. 25, 1, 12.) Thus no claim could be made against the dotal estate for expenditure in teaching a slave any art, because the husband had the benefit of the exercise of the art ; but, on the other hand, for the expense of putting out young slaves to nurse, the husband was entitled to compen- sation. (D. 24, 1, 28, 1.) An agreement that the wife should not be liable to make good necessary expenditure was void. (D. 23, 4, 5, 2.) 2. Beneficial (but not necessary) expenditure (utiles im- pensae) is Ihat without which the property will be no worse, but with which it will yield greater produce ; in other words, beneficial expenditure is whatever enhances the selling value (promercalis). (D. 25, 1, 10.) Making a vineyard or oliveyard. (Ulp. Frag. 6, 16.) Putting cattle on land to manure it. (D. 25, 1, 14, 1.) Making a nursery garden. (D. 25, 1, 6.) Building a mill or granary, if the expenditure was not necessary. (D. 50, 16, 79, 1.) In regard to expenditure that was beneficial but not neces- sarj-, the rule was that the wife must not be improved out of her estate, and that no charge could be made against her for such expenditure, unless she had known and approved it. (D. 50, 16, 70, ].) For, says Paul, it would be very hard that a woman should be compelled to sell her property to pay for the improvements that had been made upon it. (D. 25, 1, 8.) Justinian allowed the estate to be charged with all beneficial expenditure, unless the wife had actually or by implication forbidden it. (C. 5, 13, 1, 5.) 3. Ornamental (but not necessary or beneficial) expenditure (impensae voluptariae) is outlay not required to keep the pro- perty intact, not adding to its selling value (D. 25, 1, 10), but only to its beauty or agreeableuess ; as, for example, pleasure- gardens and pictures (Ulp. Frag. 6, 17), baths (D. 25, 1, 14, 2), artificial fountains, ornamenting the walls with marble, etc. (D. 50, 16, 79, 2.) For such outlay the husband can charge nothing against the estate, but he is at liberty to carry off everything that can be separated without damaging the property. (D. 25, 1, 9 ; D. 25, 1, 11, pr.) B. Duties of Husband. I. The husband is bound to take as good care of the dota DOS. 303 property as he does of his own, bnt he is not responsible for accidental loss. Property that is his own absolutely {res fungibiles and res aestimatae) is entirely at his own risk, his obligation to return its value remaining intact, whether the property exists or not. (D. 23, 3, 17, 1 ; D. 24, 3, 11 ; D. 23, 3, 42; D. 23, 3, 10, 1; Frag. Vat. 101.) An agreement that the husband should not be responsible for negligence (culpa), but only for wilful wrong (dolus), was illegal ; but it was competent to the parties to agree that the risk (perioulum) should, or should not be borne by the husband. (D. 23, 4, 6.) But although the husband was not required to take more care of his wife's than of his own property, in one case, the heart, if not the logic, of the jurisconsult dictated an exception. A husband might be cruel to his own slaves, and no one be entitled to interfere ; but if he indulged his savage temper to the injury of the dotal slaves, he was responsible for the damage ; and the jurisconsult assigns as a reason, that conduct towards one's own slaves that can be censured only by opinion, if done to another's slaves is to be punished by law. (D. 24, 3, 24, 5.) According to agreement, a dos included slaves tal^en on valuation (aestlmafa man- cipia), but giving the wife an option, in the event of a divorce, to take the slaves or their value. Some of the slaves had offspring, and on a divorce the wife chose to have back her slaves. Was she entitled to the offspring produced during the mar- riage ? No, says Paul, because the slaves lived at the risk of the husband, since he took them on valuation {aestimata). If he was to suffer the loss, he ought to have the profit accruing to him as owner. (Frag. Vat. 114.) II. To defray the expenses of the mai-riage. The object for which the dos was given to the husband is very clearly established — that he was substantially a trustee for the benefit of his wife. There does not appear, however, to have been any clear and distinct legal process to compel the husband, after getting the dos, to apply it to its proper purpose. He seems, indeed, in ordinary cases, to have been left to his discretion as to the mode of spending the money. The reason was probably that, owing to the almost imre- stricted freedom of divorce, a wife if ill-used had the remedy in her own hands. This may be gathered from the procedure adopted when the wife was insane and incapable of defending herself If her husband refused to divorce his wife in order to keep her dos, and left her without support, the curator of the wife might apply to the courts for a maintenance to the extent 304 OWNERSHIP. of the dos, but not more. If the husband were not trustworthy, the court could order the dos to be taken from him. (D. 24, 3, 22, 8.) Investitive Facts. I. By promise (dictio dotis, stipulatio). The consideration of this topic is postponed till the subject of contract is discussed. II. By giving the property to the husband (datio dotis). The hiisband could be invested with the dos in any of the ways in which any person could become owner. III. Tacit re-settlement. In certain cases, after a divorce, if the parties remarried, the dos was held to be restored, unless it was shown that the parties did not intend the dos to be recon- stituted. (D. 23, 3, 64 ; D. 23, 3, 40 ; D. 23, 3, 30.) A wife, after a divorce, received part of her doSj part remaining with the husband. She married another person, who, however, died. She then returned to her first husband, and no mention was made of the part of her dos remaining in his hands. Once more a divorce occurred between them, and the husband, says Labeo, would have to return that portion of the dos on the same day as he would if the first divorce had not taken place ; for upon the return of the wife, the dos was regarded as continu- ously existing up to the second divorce. (D. 24, 3, 66, 5.) The dos might be made either be/ore or after marriage ; and if made before marriage, could be increased at any time during the marriage. (Frag. Vat. 110 ; C. 5, 3, 19.) If the property is transferred before marriage, the transfer is conditional upon the happening of the marriage. (Paul, Sent. 2, 22, 1.) Hence, whatever produce accrues from the property before the mar- riage takes place, follows the dos, and does not belong to the husband, unless it was agreed that he should have it as an ante-nuptial gift. (D. 23, 3, 7, 1.) Divestitive Facts. I. During the continuance of the marriage. When the hus- band became insolvent, or so poor that he could not pay back the dos at the end of the marriage, the wife had a right at once to recover what she could. (D. 24, 3, 24, pr.) Justinian allowed the wife to sue for the property as owner if her husband became needy; but she was bound to apply the income to keep the husband, herself, and children. (0. 5, 12, 29.) II. Termination of the marriage by the captivity of husband or wife. The dos cannot be recovered merely because one of the parties is captive ; but if the person continues in captivity till death, then the marriage was held to have been dissolved DOS. 305 at the time of the captivity, according to the rule of the lex Cornelia. (D. 24, 3, 10 ; C. 5, 18, 5.) III. The marriage terminated by the death of the wife, leaving the husband surviving. In this case a distinction existed according to the origin of the dos. If the dos was given by the wife's father, or male paternal ancestor (dos profectitia), such person, if alive, could demand it back. If such person were dead, his heirs obtained nothing, and the husband re- mained absolute owner of the dos ; unless he had killed his wife. (D. 24, 3, 10, pr. ; D. 23, 3, 6, pr. ; C. 3, 18, 4.) Even, how- ever, if the father were alive, he could not always claim the dos, for the husband could retain one-fifth of the dos for each child of the marriage : so if there were five children nothing would be returned. (Frag. Vat. 120.) A grandfather (paternal) gives a dos to the daughter of his jUvusfamUuis. The grandfather and daughter die, leaving the jiUusfamiiias surviving. Can he recover the dos ? Yes, even if he were disinherited by his father because it is made on his behalf for his daughter. (D. 37, 6, 6.) Such was the law prior to Justinian ; but he enacted that if the father or male paternal ancestor were dead, the dos should go, not to the husband, but to the wife's heirs (C. 5, 13, 1, 6), and that no deduction should be made by the husband on account of his having children by the marriage. (C. 5, 13, 1, 5.) When the dos was given by the wife, or by anyone other than a male paternal ancestor {dos adventitia), the husband re- tained it himself, unless there was a special agreement that it should go back to the person that gave it, or to such person's heirs {dos receptitia). (Ulp. Frag. 6, 5.) Justinian changed the rule, and gave the dos to the heirs of the wife, unless the person giving the dos had specially agreed that it should go back to him or his heirs. (C. 5, 13, 1, 13.) After the changes introduced by Justinian, the husband surviving was thus in every instance deprived of the dos. IV. Termination of the marriage by divorce, one of the parties being in fault. In this case the rules will be found under the head of DrvORGE. V. Termination of the marriage by divorce, neither of the parties being in fatilt, or by the death of the husband, leaving the wife surviving. These two cases are governed by the same rules. If the wife was sui juris, she alone could demand back the dos, whether it was profectitia or adventitia. Of course, if it was receptitia, it would go back to the donor. (Ulp. Frag. 6, 6 ; U o 06 OWNERSHIP. C. 5, 1 8, 11 ; D. 24, 3, 30, pr. : D. 24, 3, 42, pr.) An agreement that if there were children the dos should remain with the husband, was not valid against the wife surviving (D. 23, 4, 2) ; but it was valid if tlie wife died fii-st, or the divorce occurred through her fault. (D. 33, 4, 1, 1.) An agreement to reserve even a portion of the dos to the children was not valid if the wife sur- vived. (C. 5, 14, .3.) The explanation of this seemingly harsh prohibition must be sought in the strong feeling that prevailed in Rome, that the expense of the children should fall upon the father, and that the wife's property {dos) was not to be charged with the burden of providing for them. The wife's heir had no claim unless the husband failed to restore the dos within the time allowed by law. (Ulp. Frag. 6, 7 ; Frag. Vat. 97.) After Justinian, however, the heir of the wife certainly had an action even if no delay occurred, because in the case of dos adventitia there was an implied stipulation that the wife should get the dos, and the benefit of this stipulation de- scended to her heirs. (C. 5, 13, 1, 13.) Probably a similar con- straction would have been adopted in the case of dos profectitia. If the wife is not sui juris, but under the .potestas of his father, then both together had a right to the dos, whether it were pro- fectitia or adventitia. (Ulp. Frag. 6, 6 ; D. 24, 3, 2, 1.) No re- ceipt was effectual to discharge the husband or his heirs, unless it were signed by both father and daughter. (D. 24, 3, 3.) The consent of the daughter was assumed, unless she distinctly refused. (D. 24, 3, 2, 2.) A father, in virtue of Ilia potestas, sent to his son-in-law, against the wish of his daughter, a bill of divorce. Could the father also demand back the dos be gave with bis daughter ? Paul answered that the effect of the bill of divorce was un- doubtedly to dissolve the marriage, but that the father could not forcibly take away his daughter from the son-in-law, and could not recover the doi from him without her consent. (I'rag. Vat. 116.) Tbie of restoring the Dos. According to TJlpian (Ulp. Frag. 6, 8), fungible things must (in the absence of special agreement) be returned in three portions in three successive years from the dissolution of the marriage. Things not fungible were to be restored at once. Justinian altered the rule, and enacted that moveables, animals, and incorporeal things should be restored -within one year; land or houses immediately. (C. 5, 13, 1, 7.) An agreement that the restitiition of the dos should be de- layed beyond the legal time was void, but not an agreement to hasten the time. (D. 23, 4, 14-16.) DOS. 307 Remedies. A. In respect of Eights and Duties. 1. A husband could, in restoring the dos, deduct the amount he had expended on necessary improvements. (Ulp. Frag. 6, 9 ; C. 5, 13, 1, 5.) For to meet his expenses on the property forming the dowry, the husband is allowed to keep back part. For by the very nature of the right, from the dowry must be subtracted all necessary expenses, as may be learned from the fuller statements in the Digest. (J. 4, 6, 37.) 2. Justinian took away the right of retention in the case of useful expenditure {utiles impensaejf and left the husband to sue, either by (1) actio mandati (the usual action to enforce agency), when the wife consented to the outlay j or (2) by actio nego- tiorum gestorum, when she did not, but had not forbidden the expenditure. (C. 5, 13, 1, 5.) These actions will be explained under the law of contract. B. In respect of Investitive Facts. The husband had the usual remedies of an owner (dominus). (C. 5, 12, 11.) c. In respect of Divestitive Facts. The wife or other person entitled to the dos on the dissolution of the marriage could not take possession of the property without the authority of a judge. (C. 5, 18, 9.) 1. Actio rei uxoriae was the remedy by which a wife or her father could recover the dos from the husband or his heirs. It was an action honac Jidei, that is to say, one in which the judex could take into account equitable considerations, although they were not pleaded im jure. (See Book IV., Proceedings in Jure.) It had, besides, the peculiarity that the husband was not compelled to pay so much aa to reduce him to destitution ; and the same privilege was extended to his sons if heirs, but not to any other persons when his heirs. (D. 24, 3, 12 ; D. 24, 3, 15, 2 ; D. 24, 3, 18 ; D. 24, 3, 54.) And again, if a woman brings an action at law for her dowry, it is held that the husband ought to be condemned to pay only what he can — as much, that is, as his means allow. Therefore if his means are equal in amount to the dowry, he is condemned to pay the entire sum ; but if not, then as much as he can. And the claim for repayment is lessened by his right to keep back part of the dowry. (J. 4, 6, 37.) This was a privilege that the husband could not deprivfe himself of, even by his own agreement. (D. 24, 3, 14, 1.) 2. Actio ex stipulcutu^ or actio in factum praescriptis verbis. (For dos recepticia.) Such was the remedy of anyone that had bargained that the dos given by him to Bl wife should return to him. It was simply the ordinary action for contract. These actions are personal {actiones personales) ; that is, they are to enforce rights in personam merely, not rights in rem. It follows, therefore, that so long as these were the only remedies, the wife's interest in the dos after marriage was not of the nature of ownership (dominium), but rather of mere obligation. This was, however, affected by the prohibition of the lex Julia, which made the husband's alienation void against the wife, and so enabled her, through the medium of a personal action, to recover her property. 3. Changes by Justinian. Justinian abolished the actio rei uxoriae, and decided that the actio ex stipulatu should take its place, but so that every benefit of the former should be attached to the latter. (C. 5, 13, 1, §§ 1, 2, 9-13.) Formerly the action to recover a wife's property {actio rei uxoriae) was one of the proceedings in good faith (ex bonae fidei judiciis). But finding the actio ex stipulatu gave more scope, we have transferred all the rights 308 OWNERSHIP, attaching: to the wife's property to the actio ex stipulatu; but with many distinctions when it is put forth to recover dowries. And rightly as the action to recover a wife's property is thus done away with, the actio ex stipulatu, brought in to take its place, has justly taken the nature of a proceeding in good faith, and is therefore so regarded — but only when employed to obtain a dowry. (J. 4, 6, 29.) He also gave the real actions {vindicatio or actio hypothecaria) to recover the property, whether in the hands of the husband or of another. (0. 5, 12, 30 ; C. 5, 13, 1, 1.) DONATIO PROPTER NUPTIAS. This was a gift from husband to wife, corresponding to the dos, but of immensely less antiquity. The first undoubted notice of it (for we may assume that C. 5, 3, 7 refers to a match being broken off, and not to the dissolution of the marriage) is in A.D. 449, in a constitution of Theodosius and Valentinian, where forfeiture of the donation is taken along with for- feiture of the dos as a punishment for causeless divorce. Justinian says it is, in name and reality, the same as the dos (C. 5, 3, 20, pr.), being a correlative contribution by the husband to the wife. .Justinian gave the wife a real action (vindicatio) against all possessors to recover the property included in the donatio propter nuptias (Nov. 61, 1), and it is not perhaps an unreasonable inference that the wife had the same general powers in respect of such donation as the husband had in respect of the dos. The following passage is given in the Institutes : — There is also another kind of donatio inter vivos, entirely unknown to the old jurists, but brought in after their time by the later of our imperial pre- decessors. This was called the donatio ante nuptias (prenuptial gift), and implied as a tacit condition that it should not be binding till followed up by the marriage. Indeed it was called ante nuptias because it was accomplished before the marriage, and after the celebration of the nuptials no such gift was bestowed. But the late Emperor, Justinus our father, seeing that in- crease of dowries after marriage was allowed, was the first to permit by his constitution that in any such event the donatio ante nuptias might be in- creased also, even though the marriage had already taken place. But the name remained, though now unsuitable ; for it was called prenuptial, while it thus received a postnuptial increase. But we being anxious to sanction a full and final settlement, and carefully suiting names to things, determine that such gifts may not only be increased, but may begin even when the marriage has already taken place. And further, we determine that the gifts shall be called not ante nuptias but propter nuptias, and shall be put on the same footing as dowries in this respect, that as dowries are not only increased but come into being when the marriage has already taken place, so too DONATIO PROPTER NUPTIAS. 309 those gifts brought in propter nuptias may not only precede marriage, but may even after it is contracted be both increased and settled (for the first time). (J. 2, 7, 3.) The children of the marriage had no interest in the donation any more than in the dos. (C. 5, 3, 18.) Justinian also enacted (C. 5, 3, 20, 1) that the same kind of agree- ments as were valid in the case of the dos should be allowed in the donation. He observes that as such gifts, under the general law, required to be registered in court (insinuatio), and as husbands often purposely neglected to do so, with the object of depriving their wives of a legal remedy, henceforth such registration might be made at any time during the marriage. (C. 5, 3, 20, 1.) In another respect the analogy was at least partially kept up. Heretic fathers (as also Jews and Samaritans) having orthodox children were obliged to give them both dotes and donatvones to the satisfaction of the Provincial Presidents and Bishops. (C. 1, 5, 13 ; C. 1, 5, 19.) B. THINGS OVER WHICH OWNERSHIP CANNOT BE EXERCISED. By ownership (dominium) is understood private property where a person exercises all the rights of enjoyment and alien- ation summed up in the word ownership. There were many objects, however, over which the full right of ownership could not be exercised. These objects will now be enumerated, with a statement of such rights as could be exercised in respect of them. (A.) Things common to all men {Res communes). Private property implies not merely the right of the owner to use the thing of which he is owner, but also the right to pre- vent anyone else using it, even where such use would not in the slightest degree interfere with his enjoyment of it. But certain objects cannot be so appropriated. The atmosphere, for instance, must be used incessantly by all on pain of death, and no human being can be excluded from the use of it. Private property in the air is physically impossible. Next to the air, the high sea is most difficult of appropriation, and practically no combination of men is ever likely to have such a naval force as would enable them to prevent others using the ocean. A restricted ownership is indeed allowed by modern international law. Every nation has an exclusive right to control the navigation and fisheries on its coasts for a limited distance. And, indeed, by the /us naturale these things are common to all men— the air, and running water, and the sea ; and therefore the sea-shores. Hence no one is forbidden to approach the sea- shores, provided only he respects villas, and monuments, and buildings ; because they are not under the Jus Gentium as is the sea. (J. 2, i, i.) 3IO OWNERSHIP. The sea-shore extends to the highest point reached by the waves in winter storms. (J. 2, i, 3.) The use by the public of the shores is part of the Jus Gentium just as is the use of the sea itself. And therefore it is free to anyone to place a hut there to which to betake himself, or to dry nets there, or to haul them up from the sea. But of those shores it is understood that no man is owner ; for they come under the same rules of law as the sea itself and the under- lying earth or sand. (J. 2, I, 5.) Rights in res Communes. 1. The right of fishing in the sea belongs to all men. This was specially stated by Antoninus Pius in a rescript to the fishermen of Formiae and Capena. (D. 1, 8, 4, pr.) 2. Everyone had a right to build on the shore, or, by piles, upon the sea, and retained the ownership of the construction so long as it lasted ; but when it fell into ruins, the soil reverted to its former state as a res communis, which any other person might build upon. (D. 1, 8, 6, pr. ; D. 1, 8, 10.) But anyone could forbid the erection of a pier or other construction that would interfere with his use of the sea or beach. (D. 43, 8, 3, 1 ; D. 43, 8, 4.) Remkdies. — 1. Actio injuriarum. — Whosoever prevents a man fishing in the sea was considered to commit an injuria. (D. 47, 10, 13, 7 ; D. 43, 8, 2, 9.) 2. Jnterdictum utile. — Any person "whose use of the sea or beach would be impaired by any construction or building could move for an interdict, after the analogy of the interdict {tie quid in loco publico fiat), to prevent such nuisance in public places. (D. 43, 8, 2, 8.) (B.) Things belonging to the State {Res Puhlicae). Those things are alone said to be public that belong to the Roman people (D. 50, 16, 16) ; to this must be added things that may be used by the public. All rivers again, and harbours, are public, and therefore the right of fishing therein is common to all. (J. 2, i, 2.) The use of the banks, too, is public by the Jus Gentium, like that of the river itself. And so anyone is free to bring-to his ship there, to make it fast by cables to the trees that grow there, and to unload any burden upon the banks, just as he is to sail along the river itself. But the adjoining land- owners are proprietors of those banks, and therefore the trees that grow thereon belong to them. (J. 2, i, 4.) The distinction between public things and common things was not in the nature of the rights exercised over them, for in both the use of the things belonged to men generally ; but the difference was that common things were regarded as having no owner {res nullius) ; whereas public things were regarded as belonging to the State, or, as in the case of river banks, to RES PUBLICAE. 3 1 1 ' private individuals. The shores of the sea were not con- sidered subject to the ownership of the State (D, 41, 1, 14, pr.), but simply as under its supervision or jurisdiction. (D. 43, 8, 3, pr.) The State might be owner in two very different ways. In one way, it might exercise all those rights of exclusive use that an ordinary private proprietor did; as, for example, in the Republican Exchequer (Ovarium), the Imperial Ex- chequer {Fiscus), the slaves belonging to the State (servi populi Romani), mines (metalla), and lands {agri vectigales). Such things may truly be said to be in the ownership of the Roman people {in patrimonio Romani populi). (D. 43, 8, 2, 4.) The things subject to such rights were not called public. In another sense, the State may be regarded as a sort of owner, as in respect of harbours where the ownership of the soil was regarded as inhering in the State, but the per- petual use thereof was dedicated to the public. This left an extremely shadowy sort of ownership in the State ; but in regard to rivers and their banks, the right of the private pro- prietor was only suspended so long as the water kept its channel ; if it deserted its bed, he again recovered his right of exclusive enjoyment. The two chief classes of public things were public roads and rivers and harbours. 1. Pdelic Roads. {Puhlicae viae). Roads are of several kinds ; (1) public, either Praetorian, or consular, or military ; (2) private, connecting fields ; and (3) local (victnales), which either are in villages or lead to them. (D. 43, 8, 2, 22.) The local roads are established by private persons upon their own land ; but if the memory of such private individual has per- ished, they are treated as public. (D. 43, 7, 3, pr.) A military road must terminate in the sea, or in a town, or in a public river, or in another military road ; the local roads may not even join to a military road. (D. 43, 7, 3, 1.) Private roads are of two kinds; (1) strictly private, confined in their use to the owners of certain lands ; and (2) private roads with permissive use to the public, and connecting a house with a public highway. (D. 43, 8, 2, 23.) Public roads in the city of Rome were under the care ot the Curule JSdiles, who had full powers to keep them in order, and prevent all injury to them, or interference with their legitimate use. To them we do not in the subsequent remarks refer, but 3 1 2 OWNERSHIP. on]j to the roads in the country. (D. 43, 10, 1, 1 ; D. 43, 8, 2, 24.) (1.) Every person was entitled to the nse of a public road as a highway. (D. 43, 7, 1.) (2.) It was forbidden to obstruct a highway, or other place of which the use was in the public, as by setting up a monu- ment (D. 43, 7, 2) or any construction. (D. 43, 8, 2, pr.) Even if a thing has been built without objection, it cannot be repaired if it is an obstruction. (D. 43, 8, 2, 7.) Anyone could compel the removal of the obstruction, and get compensation if he was injured, as by taking away his out- look or light (D. 43, 8, 2, 14), or interfering with the approach to his house. (D. 43, 8, 2, 12.) (3.) No one was allowed to do anything to a road, or place anything upon it, rendering it less useful as a highway.^ A road is made worse, when, from being plain, it is made hilly : when, from being smooth, it is made rough; or when it is made narrower or swampy. (D. 43, 8, 2, 32.) After some hesitation, it was held that a road was deteriorated when a bridge was built over it, or a drain made below it. (D, 43, 8, 2, 33.) A road is made worse when a sewer is opened into it (D. 43, 8, 2, 26) ; or if water is allowed to overflow from an artificial pond (D. 43, 8, 2, 27) , or when it is built upon in such a waj' as to prevent the rainfall running off the road. (D. 43, 8, 2, 28.) A road is also regarded as made worse if noisome smells are made in the vicinity of it. (D. 43, 8, 2, 29.) A public road is either one consti'ucted by public authority, or a private road that has been so long used by the public that the time when it was iirst made has been forgotten. (D. 43, 11, 7, 3,pr.) No prescription avails against the rights of the public to the use of a public road or path. It remains public although it is never used by the public. (D. 43, 11, 2.) (1.) The right of using a public road was secured by interdict.^ " ThePrsetor says, I forbid any violence to be done to hinder a man from going or driving freely along a public road or way." This interdict applied only to public roads; curiously enough, rights to other public things or common things were not protected by any interdict, except the right of navigation in rivers. Thus a right to iish or sail in the sea, to play in the public parks, to bathe in a public bath, or to sit in a public theatre, was protected by the actio injmiarum. (D. 43, 8, 2, 9.) (2.) To prevent buildings and constructions prejudicial to private individuals, an . interdict could be brought by the person directly injured. (D. 43, 8, 6.) The inter- ' AUPrator: In via puUica itinereve publico facere, immittere quid, quod ea via idve iter deterius sit, fiat veto. (D. 43, 8, 2, 20.) -Prcetorait: Quominus iUi via puUica itinereve pubiico, ire ai/erc liceai, vim fieri veto. (O. 43, 8, 2, 45.) RES PUBLICAE. 313 diet was prohUiitory ; its object was to prevent, not to punish ; hence, if any one builds without objection, he cannot be compelled to pull down ; but the procurator of public works may, if it obstructs the public, pull it down, or, if it is no obstruction, im- pose a ground-rent (solarium). (D. 43, 8, 2, 17.) If the buildinj; or construction is not finished, security is required that it shall not be proceeded with. (D. 43, 8, 2, 18.) (3.) Damage to the road itself was dealt with by a special interdict, which might be brought by anyone (whether complaining of any special injury or not), and after any length of time : the amount of damages was fixed with reference to the interest of the complainant in the condition of the road. (D. 43, 8, 2, 34.) It is not merely preventive, but remedial (restUukn'ia), and the wrong-doer is obliged to restore the road to its previous state, as by giving back what he has taken away, or by taking away what he has left on it. (D. 43, 8, 2, 43.) 2. EivEBs AND Banks of Bivees. A river (Jlumeii) is distin- guished from a stream (rivus) by its greater magnitude, or by reputation. (D. 43, 12, 1, 1.) Rivers are either permanent (perennia), flowing all the year round, or winter torrents (torrentia) that leave their beds dry in summer. A permanent river might, however, occasionally dry up without forfeiting its character. (D. 43, 12, 1, 2.) A public river is a permanent river. (D. 43, 12, 1, 3.) Public rivers are of two kinds, navi- gable and not navigable. A bank of a river (ripa) is defined, after the analogy of the sea-shore, as the furthest reach of the river. (D. 43, 12, 3, 1.) This, however, is true only so long as the river keeps within its natural cotu-se. Occasional floodings do not change the legal extent of the bank, otherwise all Egypt would be a bank of the Nile. But if the increase or abatement is permanent, the bank is regarded as altered. (D. 43, 12, 1, 5.) (1.) " The Prajtor says I forbid any violence to be done to hinder any man from freely sailing a ship or boat on a public river, or from loading or unloading at the bank. And also I will grant an interdict to secure the right to sail freely over a lake, a canal, or a pond that is public." "■ Lake (facus) is a natural and permanent collection of water. (D. 43, 14, 1, 3.) Pool [staffnum) is a natural collection of rain-water, and not permanent, but often dried up. (D. 43, 14, 1, 4.) Fossa is a trench or canal made by men (D. 43, 14, 1, 5), which was sometimes public. (2.) It was forbidden to do anything to a river or its banks, or place anything thereon, that would impede the navigation or use of the banks. (D. 43, 12, 1, pr.) 1 Prcetor ait: Quominus illi in fiumine publico navem, ratem agere, quove minus per ripam onerare, exonerare liceat, vim fieri veto. Item ut per lamm, fossam, stagnum publicum navigare linat interdicam. (D. 43, 14, 1, pr.) 314 OWNERSHIP, The owner of both sides of a stream cannot throw a private bridge across the stream. (D. 43, 12, 4.) Water may be led from a river, unless specially forbidden by the Emiperor or Senate, or unless it makes the river less navigable. (D. 43, 12, 1, 15 ; J). 43, 12,2.) Water withdrawn from a public river for irrigation ought to be divided according to the dimensions of the fields ; but water was never allowed to be withdrawn if it were to cause injury. (D. 8, 3, 17 ; T>. 43, 20, 3, 1.) Bepairs of a river bank were permitted only if no damage was done to the naviga- tion. (D. 43, 15, 1, 2.) Anything that would cause a public river to change its channel fronr that ia which it ran during the preceding summer, or to make its course more rapid, was mnlawf ul. (D. 43, 13, 1, pr. ; D. 43, 13, 1, 8.) These rights were enforced by interdicts. (D, 43, 14, 1, 1 ; D. 43, 12, 1, pr. ; D. 43, 13, 1, 11.) (C.) Things belonging to corporate bodies {res universitatis). These are things that belong to a corporation, not to individuals ; city theatres, for instance, race-courses, and the like, owned in common by the cities. (J. 2, 1, 6.) The expression universitas is used in two different significations' ; the correlative word singuli is used with corresponding diversity of meaning. Jles singmlorum mean things belonging to individual men ; their opposite is res universitatis, or corporate property. JRes singnlae mean any things or aggregate of things as opposed to a univer- aitas juris, or totality of rights and duties inhering in any individual man, and passing to another as a whole at once. The most interesting and important example of a universitas juris is inheritance ; the analysis of the notion will be reserved. Meanwhile it is sufiioient to note the ambiguity in the word mii-versitas. A universitas or corporate body exists when a number of persons are so united that the law takes no notice of their separate existence, but recognises them only under a common name, which is not the name of any one of them. (D. 3, 4, 2 ; D. 3, 4, 7, 1.) All the members are considered in law as a single unit or being. (D. 46, 1, 22.) Such units are sometimes called fictitious persons, because the corporate body, as such, may sue and be sued, receive or part with property, bind itself or bind others, through some agent or syndic (D. 3, 4, 1, 1) who acts in the name of the whole, just as any individual may act for himself (D. 3, 4, 7, 1.) The chief characteristic of such a body is that it does not necessarily die. (D. 5, 1, 76.) A corporation could not, by the Roman law, be created by private agreement ; it required the authority of a statute (leai), Senatus Consultum or constitution of an Emperor. (D. 3, 4, 1, pr.) The lowest number that could form a corporation col- legium) or company (societas) was three (D. 50, 16, 85) ; but it seems that if the number of an existing corporate body was RES UNIVERSITATIS. 315 reduced to two or even to one in a town, it conld still be main- tained. (D. 3, 4, 7, 2.) There were many such corporations in Rome, chiefly connected with trades, such as the guild of bakers, and shipowners, companies of tax-gatherers, companies for working mines of gold, silver, salt, etc. The internal government of the corporate bodies was in the hands of the members {sodales). Corporate bodies, like States, might enjoy two kinds of ownership. They might be owners, just like private indi- viduals ; and herein such bodies form no exception to the general observations made with reference to private property. But some of such bodies — municipalities for example — might hold property of which people in general were entitled to the use. It is to this alone that Justinian refers. In this sense alone are 7-es universitatis analogous to res publicae ; the former belong to cities or municipalities, the latter to Rome itself. We have thus three classes of things of which the use was general : common things, having no owner ; public things, the ownership being in the Roman people; and res univer- sitatis, of which the use was in the public, and the ownership in the municipality. (D.) The last class of things withdrawn from the exercise of ownership (dominium) is connected with religion (res divini juris), and consists of three groups. The ultimate division of things, then, is into two classes ; for some are under Heaven's law, some under man's law. (G. 2, 2.) Of things under Heaven's law, things sacred and devoted are instances. (G. 2, 3.) I. Sacred things are things consecrated to the gods above {res sacrae) ; devoted, those left to the gods the shades (res religiosae). (G. 2, 4.) But a sacred thing, it is held, can be made so only by the authority of the Roman people ; for it is consecrated by a statute passed, or by a Senatus Consultum made for that purpose. (G. 2, 5.) Sacred things are things that have been duly (that is by the priests) con- secrated to God — sacred buildings, for instance, and gifts duly dedicated to the service of God. And these we, by our constitution, have forbidden to be alienated or burdened {obligari), except only in order to redeem prisoners. But if any man, by his own authority, establishes a would-be sacred thing for himself, it is not sacred, but profane. A place, however, in which sacred buildings have been erected, even if the building is pulled down, remains still sacred, as Papinian too wrote. (J. 2, i, 8.) Those two passages illustrate the change introduced by the adoption of Chrisbamty as the state reUgion of the Empire. In the old religion certain deities were supposed to preside over the celestial region, and property consecrated for their worship was res ma-ae; other deities to preside over the realms of the dead, and, in their regard, the 3 1 6 OWNERSHIP. place where a dead body was placed, became religiosus. In the time of Justinian the gods of the celestial region were replaced by the God of the Christians ; and res saorae continued to mean things devoted to religious worship. There was also a continuity in the investitive facts. No property could be allowed to pass under the exclusive care of the priests, except with the sanction of the State. Under the Empire, the Emperor alone could authorise the dedication of property to religious uses. (D. 1, 8, 9, 1.) The constitution to which Justinian refers allowed the sale of church property in famine also ; for he says it is not unreasonable to prefer the lives of men to vessels and vestments. (C. 1, 2, 21.) By a later enactment, a church unable to pay its debts was allowed to sell superfluous vessels, but not its immoveables, or anything required for the service of the church. (Nov. 120, 10.) 2. Burial-ground {res religiosae). A place in which the body or ashes of a human being (even a slave) (D. 11, 7, 2, pr.) were laid became religious, if the consent of the proper parties had been obtained, and if it were intended to be the final, and not merely a temporary resting-place. (D. 11, 7, 2, 5 ; D. 11, 7, 4-0.) A monument or erection in memory of a deceased person (D. 11, 7, 2, 6) was not a sepulchre unless it contained a dead body. (D. 11, 7, 42 ; D. 11, 7, 6, 1.) Rights of the quasi-own er of a burial-place. (1.) A burial-place was not aKenable. (C. 3, 44, 9; C. 9, 19, 1.) On a sale of the land in which it was contained, it did not pass to the buyer. (Paul, Sent. 1, 21, 7.) (2.) A wrong was done by erasing the inscriptions, throwing down any statue, or overthrowing a stone or column, or other- wise defacing a tomb. (Paul, Sent. 1, 21, 8.) (3.) It was an offence to bury a person in a sepulchre without having the right to do so. (D. 47, 12, 3, 3; Paul, Sent. 1, 21, 6.) Investitive Facts.^(i.) A devoted place we make so by our own choice by bringing a dead man into a spot that is ours, if only it is our part to bury him. (G. 2, 6.) But in provincial soil, according to the general opinion, a place cannot be devoted ; because of that soil the Roman people or Caesar is owner, while we have only the possession and usufruct. A place of that sort, however, although not devoted, is looked on as if it were {pro religiosd). For so, too, in the provinces, what has not been consecrated by the authority of the Roman people, although properly not sacred, is yet looked on as if it were. (G. 2, 7.) The theory that no ownership (dominium ex jure Quiritium) could exist over lands in the provinces, inasmuch as they belonged to the State, was, by the construction explained by Gaius, not permitted to deprive the inhabitants of the pleasure of having their burying-places secure from intrusion. It will be observed that the introduction of Christianity led to no essential alteration of the law of sepulture. A devoted place is made by each man of his own choice, when he brings a. dead man into a spot that is his. But into a pure spot owned in common RES RELIGIOSAE. 317 you cannot bring the dead against the will of a joint owner ; into a burying- place owned in common, however, you may, even against the will of all the other owners. And again, if the usufruct is another's, it is held that the proprietor cannot, unless the other consents, make the place devoted. Into another's ground, by the owner's leave, you may carry the dead ; and even if he ratifies the deed only after the dead has been carried in, yet the spot becomes devoted. (J. 2, i, 9.) A pure spot is one not before used for interment. It was a law, moreover, that no one could be buried within the city, even in his own land. (Paul, Sent. 1, 21, 2 ; D. 47, 12,3,5.)^ Divestitive Facts. — (1.) Paul tells US that if a river laid bare a sepulchre, or it threatened to fall down, the body raight be removed duriug the night, after the offering of solemn sacrifices, to another place, which would thereupon become devoted. (Paul, Sent. 1, 21, 1; D. 11, 7, 44, 1.) In other cases the removal of a dead body from the place intended to be final Avas forbidden. (D. 11, 7, 39.) (2.) If the land were taken in war, it was regarded as losing its character ; which, however, was restored if the land was reconquered. (D. 11, 7, 36.) " The tombs of the enemy are not sacred to us," was the churlish maxim of the law. (D. 47, 12, 4.) Remedies. (1.) Actio de sepvXcro violato. It was a crime to hinder the burial of any body wilCull}*, or to violate a sepulchre (D. 47, 12, 8) ; but the action here named carried only a fine in money. (D. 47, 12, 9.) The action was Praetorian, and was given in the first instance to the owner of the soil ; and if the owner did not appear, then, to anyone that pleased ; and if several appeared, then to whichever seemed to have best reason. (D. 47, 12, 3, pr.) When an action was brought by the owner of the soil, the damages were fixed at .whatever sum might be considered by the judge to be proper ; and if by a person not owner, the penalty was 100 aurei. (D. 47, 12, 3, pr.) Condemnation carried with it infamy. (D. 47, 12, 1.) (2.) Actio in factum. — To prevent a person burying a body where he had no right. The Prastor says, " If it is alleged u deaxl man, or the bones of a dead man, are carried into pure ground [i.e., ground not sacred, or devoted, or hallowed, (D. 11, 7, 2, 4)] belonging to another, or into a burying-place to which there is no right, then the doer shall be Uable to an actio in factum, and shall be subjected to a pecuniary penalty." (D. 11, 7, 2, 2.) (3.) A special interdict was allowed when anyone was prevented burying a corpse in land that belonged to him. (D. 11, 8, 1, pr.) 3. Hallowed things (fes sanciae), too, such as walls and gates, are in a way under Heaven's law, and therefore form part of no one's goods. And the reason why we call walls hallowed is this, that a capital penalty is fixed for those that do them any wrong. And for the same reason, too, we call those 1 XII Tables. Eominem mortmum in urbe ne sepelito neve m-ito. (p. 22.) 3 1 8 OWNERSHIP. parts of statutes in which we fix the penalties for those that act in defiance of the statutes "sanctions." (J. 2, i, 10 ; G. 2, 8.) Isidorus derives sanctus a sanguine hostiae. It was usual at the foundation of walls In ancient cities to make valuable sacrifices, as of a horse, and sometimes even of human beings. Ambassadors also were regarded as hallowed : persons who struck or injured them were deuvered up to the nation they represented. (D. 50, 7, 17, pr.) The walls of cities could not be touched or even repaired without the authority of the State. To leap the walls was the offence for which Romulus is said to have killed his brother Remus. (D. 1, 8, 11.) Things sacred and hallowed were protected by an interdict which was both prohibitory and restitutory. (D. 43, 8, 2, 19 ; D. 43, 6, 2.) C. RESTRICTIONS ON VOLUNTARY ALIENATION. The Roman law imposed restrictions on the voluntary aliena- tion of property, both in respect of the mode of alienation and also of the amount that might be given. A voluntary alienation is one that a person is not compelled by law to make ; as a gift.^ (A.) Restrictions as to the mode of voluntary alienation. There are other gifts too made without any thought of death, and called inter vivos. These are not to be compared to legacies in any respect, and if once completed they cannot be readily revoked. And they are completed when the giver has openly declared his intention, whether in writing or not. Our conctitution, too, has determined that these gifts, like sales, should in themselves involve the necessity of delivery, but so that if no delivery took place, they should be fully and completely valid, and the necessity of delivery should rest upon the giver. And since the arrangements of former emperors willed that such gifts should be registered in the public records if of more than 200 solidi, our constitution has extended the amount to 500 solidi, and decided that gifts up to that sum shall stand even without registration. It has, too, found certain gifts, of which registration is entirely needless, which are in themselves most fully valid. And many other points beside we have found tending to the freer issue of gifts, that can all be gathered from our constitutions laid down regarding this. Yet it must be known that although the gifts are quite unqualified, still if those that receive the boon prove ungrateful, we have by our constitution given leave to revoke the gifts on certain fixed grounds. For we would not have those that have bestowed their property on others to suffer at the hands of these very men outrage or loss after the fashions enumerated in our constitution. (J. 2, 7, 2.) In this paasage Justinian deals with two very distinct though closely related sub- jects, voluntary promises and voluntary alienations. The effect of a voluntary promise ' "Quod nuUojure cogente conceditur," (D. 50, 17, 82.) VOLUNTARY ALIENATION. 319 was to bind the promiser to deliver what he promised ; but trntil delivery there was no change of ownership in the thing. Moreover, gifts exceeding 500 solidi must be registered. Constantino enacted that voluntary alienations should be evidenced by a written document, containing the name of the donor, and a description of the nature of his rights and of the property ; that this document should be registered, and that the property should be delivered in the presence of witnesses. (C. Th. 8, 32, 1 ; C. Th. 8, 12, 3.) These precautions were superseded by the rules introduced by Justinian. (B.) Restrictions on tlie amoiTnt of gifts. I. An old statute {lex Cincia, B.C. 204) tliat continued to exist up to the time of Oonstantiue, but fell into desuetude before Justinian, prohibited gifts beyond a certain amount (which is not stated), except as between certain relatives. Gifts to the extent to which they exceeded the limit, but no further, were void. (Frag. Vat. 266 ; Ulp. Frag. pr. 1.) It seems, however, that if the donor did not revoke the gift during his life or by will, the gift was confirmed. (Frag. Vat. 294.) The persons exempted from the restrictions of the lex Cincia were (1) all persons related by blood {co(/nati) up to the fifth degree, and to second cousins in the sixth degree ; also those in whose potestas, Tnanus, or ruancipiwni such persons were, or those over whom such persons had potestas, manus, or mancipium. (Frag. Vat. 298- 301.) (2) Persons related by affinity, so long as the tie lasts, but no longer. (Frag. Vat. 302.) (3) Tutors to pupils, but not pupils to tutors. (Frag. Vat. 301.) (4) Patrons and freedmen. (Frag. Vat. 307-309.) (5) Any blood relation beyond the . sixth degree could make a gift as a dowry. (Frag. Vat. 3U5, 306.) II. Gifts between Husband and Wife. Before marriage, an intending husband or wife could make gifts to the other without restriction, and the gifts might even be conditional upon the celebration of the marriage (Frag. Vat. 262) ; but after mar- riage a husband could not make a gift to his wife, nor to her father, if she were under his potestas ; nor could a wife make a gift to her husband, nor to his father, if he were in his father's potestas, nor to his children if they were in his potestas. (C. 5, 16, 4 ; Frag. Vat. 269.) In the age of Antoninus this rule was ascribed to custom (D. 24, 1, 1 ; D. 24, 3, 3, pr.) ; but it has been pointed out that the prohibition of the lex Cincia did not apply to husband and wife, from which it may be perhaps inferred that the rule did not exist during the Republic, about B.C. 200. When a wife ceased to be in the manus of her husband, she enjoyed complete proprietary independence, unless she re- mained in the potestas of her father. Thus the wife, like the husband, kept her property separate. As both, therefore, might by foolish generosity be deprived of their property, the rule prohibiting gifts was made applicable to both ; for, as was 320 OWNERSHIP. said by the Emperor Autonimis, the object of marriage was the satisfaction of an honourable love, and not that either husband or wife should gain money by it. (D. 24, 1, 3, pr.) Exceptions. — 1. Birthday and other presents, if moderate in amount, were not prohibited. According to custom, every year husbands made presents to their wives on the Kalends of March, and wives to their husbands on the Saturnaha. (D. 24, 1, 31, 8.) 2. Gifts were valid if they were not to take effect until the dissolution of the marriage. A gift made in contemplation of an immediate divorce was valid ; but was prohibited if made with reference to a future possible divorce. (D. 24, 1, 60, 1 ; D. 24, 1, 62, 1 ; D. 24, 1, 12.) 3. Gifts were not prohibited unless they made the giver poorer, and also the receiver richer. (D. 24, 1, 25.) A husband refuses a legacy or inheritance, which thereby goes to his wife. Although the husband did this by way of gift, the wife's title is perfect. The renunciation does not take from the husband's property. (D. 24, 1, 5, 13 ; D. 24, 1, 5, 14.) Either husband or wife may grant to the other, as a gift, a burial-place. (D. 24, 1, 5, 8 ; D. 24, 1, 5, 9. ) A gift to a wife of a valuable tombstone Is not void, but the property in it remains in the husband until a dead body is placed there, and the place becomes devoted. The gift does not enrich the wife. (D. 24, 1, 5, 10.) A husband may present a slave to his wife with a view to manumission, although indirectly this was a gift of the valuable rights of patronage. (C. 5, 16, 22 ; D. 24, 1, 9, 1.) Either husband or wife may have the use of the other's slaves, or of a dwelling- house, gratuitously. (D. 24, 1, 18.) Either party may surrender to the other a thing pledged to the other without a consideration, the debt not being thereby extinguished. (D. 42, 8, 18.) Gifts by a wife to her husband, to enable him to acquire any public dignity, are valid. Hence gifts to defray the expenses of standing for office or of the games. (D. 24, 1, 42; D. 24, 1, 40.) Confirmation of invalid gifts. — The prohibition did not ex- tend beyond the lifetime of the parties; after the marriage was at an end, gifts might take effect. Therefore, just as a gift made before marriage, to take effect only after marriage, was declared void, so a gift during marriage to take effect after the marriage was dissolved by the death of one of the parties, was valid. (D. 39, 6, 43; D. 24, 1, 9, 2 ; D. 24, 1, 11, pr.) A husband or wife, therefore, having made gifts to the other, could confirm them by Will. It became usual to insert in wills a clause to that effect, when it was desired that gifts made during marriage should be retained. At length Antoninus, before coming to the throne in the reign of Severus, carried a Senatus Consultum to the VOLUNTARY ALIENATION. 32 1 effect that all gifts invalid during the marriage should become valid on the death of the donor, unless expressly revoked during life, or by testament. (U. 24, 1, 32, 2.) A question, however, arises where property was not given, but only a promise made. Can the promise be enforced against the heir of the deceased ? There was a difference of opinion between the two great classical jurists, Papinian and Ulpian. Papinian held that the Senaius Consultum applied only to gifts of things, and that an invalid promise was not made obligatory by the death of tlie promiser. (D. 24, 1, 23.) Ulpian, however, explicitly held that a stipulation, for example, for an annuity, could be enforced after the death of the promiser, if he had not withdrawn from it in his lifetime. (D. 24, 1, 33, pr. ; D. 24, 1, 33, 2.) Justinian decided not merely that all such promises should be enforced, but that even a mortgage or pledge by the husband of the things promised should not be considered an implied revocation of the gifts. (Nov. 162, 1.) Previous to this time pledging a thing had been construed as a tacit revocation. (C. 5, 16, 12 ; D. 24, 1, 32, 5.) In certain cases, however, death did not operate as a ratification. (1.) If the parties were divorced, or even permanently separated without a formal divorce, and not re-married before death. (D. 24, 1, 62, 1 ; D. 24, 1, 32, 10 ; D. 24, 1, 32, 19.) (2.) If the donee or receiver of the gift died first, or was reduced to slavery. (D. 24, 1, 32, 6 ; D. 24, 1, 32, 18.) (3.) Such confirmed gifts were subject to the rules applicable to gifts made mortis causa. Therefore both doner and donee must have a capacity to give and receive at the time of death. (C. 5, 16, 24 ; D. 24, 1, 32, 7 ; D. 24, 1, 32, 8.) (4.) Justinian, in the Code, required the gift to be expressly confirmed by will if it exceeded the amount that required registration; but the provision was repealed in the Novels. According to the latest law, such gifts took effect up to the amount that did not require registration, but beyond that amount were invalid. (C. 5, 16, 25 ; Nov. 162, 1, 2.) III. Gifts to concubinee or natural children. Constantine seems to have prohibited all gifts or bequests to natural children or concubines. (Nov. 89, pr. ; C. Th. 4, 6, 1.) This was part of his policy to discourage and repress concubinage. With this object in view he introduced, on the one hand, the privilege of legitimation by subsequent marriage; and, on the other hand, X 32 2 OWNERSHIP. he imposed on concubines and natural children an incapacity to take any property from the father, either in his lifetime or on his death. In A.D. 371, however, we find this severity miti- gated in certain cases by a constitution of Valentinian, Valens, and Gratian. (G. Th. 4, 6, 1.) If a person died leaving legiti- mate children or grandchildren, or a father or mother, all gifts or bequests made by him to his concubine or natural children exceeding one-twelfth of his property were declared void. If a person died without leaving such relatives, he could give his concubine or natural children as much as one-fourth, but not more. In substance this provision agrees with a subsequent constitution of Arcadius and Honorius, A.D. 403. (C. 5, 27, 2.) Justinian admitted a further relaxation. If a person has any legitimate children, he cannot give his natural children or his concubine more than one-twelfth of his property. If he leaves no legitimate children, but ascendants, for whom he is obliged to provide in his will, then the natural children can get as much as the father pleases, if enough is left to satisfy the legal claims of the ascendants. If there are no legitimate children, and no such ascendants, a father may leave his whole property to his concubine or natural children. (Nov. 89, 2.) IV. It was enacted by Severus and Antoninus that alienations made by persons after the commission of a capital crime, with- out valuable consideration, should be invalid if condemnation followed. (D. 39, 5, 15 ; D. 39, 5, 31, 4.) Extension op Investitive and Transtestitive Facts. We may, with Savigny, regard Agency as an extension of investitive and transvestitive facts. It is convenient, in the first instance, to assume that a transvestitive fact operates universally — that anybody may become the owner of anything. Thereafter the qualifications to which this statement is subject may be enumerated, — the persons that cannot be owners, and the things that cannot be the objects of ownership. But the transvestitive facts admit of extension as well as restriction. Thus, if A mancipates a slave to B, B becomes owner, and that is the simple form ; but if, in consequence of the mancipation, not B, but G becomes owner, then we have a transvestitive fact operating in favour of G, who has taken no part in the trans- action. We may regard this as an extension of the simple transvestitive fact. AGENCY. 323 Did the Roman law recognise any snch extension — any agency? In answering this question a distinction of mnch importance and constant recurrence appears in view. It is that between the old formal and the newer non-formal modes of conveyance. In respect of the former, no agency was pos- sible except through slaves or persons in an analogous state ; but in respect of the informal modes of conveyance, such as delivery, agency was permitted universally. A. Agency in respect of the formal transvestitive facts. We acquire things not only ourselves directly, but also by means of those that we have in owx potestas \manus or mancipium\ and also of those slaves in whom we have a usufruct ; and further, of freemen or slaves belonging to others that we possess in good faith. Let us look into these cases narrowly one by one. (J. 2, 9, pr. ; G. 2, 86.) 1. Slaves and persons subject to 'potestas, manus, or mancipium. And further, all that [your children in potestate, and all that] your slaves [receive by mancipatio or] obtain by mere delivery {traditio), all rights that they acquire by stipulation or on any other ground whatever, all are acquired for you, and that though you know it not, or even against your will : for the slave that is in your potestas can have nothing of his own. And, therefore, if he is appointed heir, he cannot enter on the inheritance except at your bidding ; and if at your bidding he does enter, it is for you he acquires the inheritance, just as if you had been appointed heir. And so also with a legacy. (J. 2, 9, 3 ; G. 2, 87.) But we must bear in mind that when a slave belongs to one man in bonis, and to another ex jure Quiritium, all that is acquired through that slave, on any ground, goes to the owner in bonis. (G. 2, 88.) And not only property {proprieias) is acquired for you by persons in your potestas, but also possession. For when they have gained possession of a thing, that possession is held to be yours. And thus, by means of them, the time for usucapio or longi temporis possessio begins to run. (J. 2, 9, 3 ; G. 2, 89.) But as regards persons in manu or in mancipio, though by means of them you acquire property on any ground, just as through persons in yowr potestas, yet, whether you acquire possession is usually questioned, because they themselves are not in your possession. (G. 2, 90.) 2. Slaves possessed in good faith. The same decision has been come to with regard to a person in good faith in your possession, and that whether he is free or another man's slave. For the decision as to him that has the usufruct holds with regard to the possessor in good faith too. All he acquires, therefore, on any ground outside those two, belongs either to himself if he is free, or to his master if he is a slave. (J. 2, 9, 4 ; G. 2, 92.) "Outside those two."— For the meaning of this, see the following extract, "3. Slaves held in usufruct." 324 OWNERSHIP. But if the possessor in good faith has come by usucapio to own the slave, and thus to be his master, then all the slave acquires on any ground goes to him as his master. (J. 2, 9, 4 ; G. 2, 93.) But he that has the usufruct cannot become owner by usucapio ; in the first place, because he is not possessor, but has only the right of use and enjoyment ; and in the second place, because he knows that the slave belongs to another. And it is not property alone that you acquire by means of slaves in whom you have a usufruct or who are in good faith in your possession, or by means of a free person in good faith in your service, but possession as well. With regard to the person of both slaves and freemen, we speak in accordance with the limitation just set forth ; viz., that the possession must have been gained by them either with your property or by their own exertions. (J. 2, 9, 4.) 3. Slaves held in usufruct. As regards slaves held by you only in usufruct, it has been decided that all they gain with your property or by their own exertions is added to your estate ; but all they gain on other grounds than those belongs to the master that owns them. And therefore if such a slave is appointed heir, or any legacy is left him, or gift bestowed on him, it is acquired not for the man that has the usufruct, but for the master that owns him. (J. 2, 9, 4.) B. Non-formal transvestitive facts. From all this, then, it appears that through freemen neither subjected to your power nor possessed by you in good faith, and also through other men's slaves in whom you have neither the usufruct nor lawful possession, you can in no case acquire. And this is the meaning of the saying that through an outsider nothing can be acquired. [The only doubt is with regard to pos- session, — whether it can be acquired through an agent.] (J. 2, 9, 5 ; G. 2, 95-) To this there is one exception. For it is held that through a free person — a procurator, lor instance — you can acquire possession, not only knowingly, but even in ignorance, as was settled by a constitution of the late Emperor Severus. And by possession of this sort you acquire ownership even, if it was the owner that delivered the property ; or if not, you can acquire it by usiicapio, or longi temporis praescriptio. (J. 2, 9, 5.) It makes no difference whether the owner in person delivers the property to another, or whether some one else delivers it by his wish. (J. 2, I, 42.) And on this principle, if anyone is allowed by the owner to manage his business freely, and he in the course Of business sells goods and delivers them, he thereby makes them the property of the receiver. (J. 2, i, 43.) Titius and Gaius bought land, which was delivered to Titius partly for himself and partly as the agent of Gaius. By this delivery Gaius becomes part owner of the land, (b. 41, 1, 20, 2 ; C. 4, 27, 1 ; C. 7, 32, 8.) Sempronius takes dehvery of a slave from Meevius with the intention of holding it for Julia. Julia afterwards hears of the transaction. From that moment she begins to acquire by usucapio. (C. 7, 32, 1.) Titius, the agent of Julius, at his request buys a farm, and takes delivery of it in the name of Julius. That delivery immediately vests the ownership in Julius, even before he knows that the dehvery has actually taken place. (D. 41, 1, 13 pr.) If, AGENCY. 325 hoTKever, Titins boiiglit the farm -without any special order, Julius does not become owner until he hears of the transaction, and ratifies it. (D. il, 2, 42, 1.) The distinction between formal and non-formal Investitive Facts pervades the whole Roman law. It appears in the manu- mission of slaves, adoption, conveyance of property, contract, inheritance, and procedure. Everywhere the Roman law pre- sents the same characteristic. In antiquity it was characterised by a spirit of intense formalism — a spirit emulated by the jurists in the narrow pedantry of their interpretation. The forms or ceremonies had doubtless at some remote period a real sig- nificance, if for nothing else, as symbolising an almost super- stitious reverence for law. These forms had also a marked utility among a people to whom the art of writing was unknown as an instrument in the transactions of daily life. It followed that no one could be affected by the forms except the persons that actually took part in the ceremony. Hence the general rule, that in no legal transaction could one freeman represent or act for another. The only exception was in the case of slaves, and other persons subjected to a qualified ownership. But in the course of time, as the law paid less attention to forms, and more to the meaning and intention of parties, the rule of the civil law was felt as an inconvenience as well as an anomaly. Thus it was held that anyone could acquire posses- sion by another, so that the possession of A should be held to be the possession of B. In the later period of the Roman law delivery of possession (Iraditio) became the exclusive mode of conveying property ; and thus, as Justinian states, ownership could be acquired not only by slaves, but by any free person. Remedies. A. Remedies in eespect op Eights and Duties. First, Bights to moveables. {Ses se moventes, and res mobiles.) I. Theft — A ctio Furti. 'His is the remedy against the thief. It is concurrent with other actions, such as the ordinary actions for recovering ownership [vindicatlo, actio ad exhibendum), but generally these would only be resorted to when the stolen article (res furtiva) was in the possession of a person innocent of the theft. The actio furti is cumulative with the condictio furtiva, an action whose characteristics will be presently described. (D. 13, 1, 7, 1.) The actio furti, whether brought for twofold or for fourfold theIo5s, looks only to the recovery of the penalty. For the recovery of the thing itself the master had a remedy outside this — by vindicatio, namely, or condictio. Vindi- catio is the remedy against the possessor, whether that is the thief or some one else. Condictio lies against the thief himself or his heir, although he is not the possessor. (J. 4, i, 19.) 326 OWNERSHIP. 1. The penalty for theft varied according as the thief was or was not caught in the act. Hence a distinction between manifest and non-manifest theft. (PuHum manifestum and nee manifestum.) The standard of punishment was thus deter- mined with a regard to the feelings of vengeance that might be expected to actuate a sufferer taking into his own hands the punishment for the depredations on his property. The penalty for a thief taken in the act {manifestifurti) was by the statute of the XII Tables capital. For a freeman was scourged, and adjudged {ad- dictus) to him from whom he had stolen. But whether he was made a slave by being so adjudged, or was put in the position of a debtor assigned to a creditor {adjudicatus), was a question among the older writers. A slave, again, was scourged in like manner and put to death. But afterwards the harshness of the penalty was censured ; and for a theft by a slave as well as by a freeman the remedy fixed by the Praetor's edict was an action for four- fold the amount. (G. 3, 189.) For a thief not taken in the act {nee manifestt), the penalty imposed by the statute of the XI I Tables was an action for twofold the amount ; and this the Prsetor retains. (G. 3, 190.) The penalty for theft is, where the thief is taken in the act — fourfold, whether he be slave or free ; where he is not — twofold. (J. 4, I, 5.) The severity of the penalty for theft was probably due not to the cruel disposition of the lawgiver, but to the weakness of the executive authority. It was a high bribe to induce the party whose goods were stolen to forego the right of private vengeance. By the XII Tables a nocturnal or an armed thief might be lawfully slain. When the civil authority had once established its ascendancy, there was no longer any jus- tification of such excessive severity, and the Praetor modified the law in the manner stated in the text. Furtum manifestum, some have said, is theft detected while it is still being committed. Others go further and say that it is theft detected while the thief is still on the spot where it is committed : for instance, if olives are stolen in an olive-grove or grapes in a vineyard, as long as the thief is in that olive-grove or vineyard ; or if in a house, as long as the thief is in that house. Others again go still further, and say that a theft must be called manifestum if detected before the things stolen have been carried to the place where the thief meant to carry them. And others, going further still, say whenever the thief is seen holding the thing stolen. This last opinion has not been accepted. And even the opinion of those that think that until the things stolen have been carried to the place meant for them by the thief, the theft, if detected, is a fiirtu7n manifestum, has been disapproved by most. For it raises doubts as to the limit of time to be set, whether one day or more ; a point that comes in, because often the thief means to carry things stolen in one State into other States or provinces. Therefore, of the two opinions first stated, one or other is the approved one ; and most prefer the latter. (G. 3, 184.) K fur manifestus \% what the Greeks call s^r' auro'gravated theft. {De incendio, ruina, naufragio, rate, nave expugnata. (D. 47, 9!) When the theft was committed from a building on fire, a house fallen down, a shipwreck, or a boat or ship attacked by force, the thief was liable to a fourfold penalty if the action were brought within the year, but after that time only to a single penalty. The words of the edict are given. (D. 47, 9, 1, pr.) The PrEetor says, — If it is alleged that a, man, after a fire, the fall of houses, or a shipwreck, or by the violent capture of a boat or ship, has carried off any plunder, or has knowingly received it, or has under these circumstances inflicted any damage on any' one, against that man I will give a remedy — if within a year from the first time there 328 OWNERSHIP. is power to try the case, then for fourfold the loss ; if after a year, then for the loss simply.' The edict also includes buildings adjacent to those that are burned or have fallen down. (D. 47, 9, 1, 3.) NaufragiMW, includes what is cast ashore at the time of a wreck, but not when an interval has elapsed. (D. 47, 9, 2 ; D. 47, 9, 5.) What is stolen on the shore, not under the excitement of the shipwreck, falls under the head of simple theft. (D. 47, 9, 3, pr. ; D. 47, 9, 3, 6 ; D. 47, 9, 4, 1.) Rate vd nave expugnata is when a boat or vessel is attacked by pirates or robbers, and things are stolen either by them or by others under cover of the tumult. (D. 47, 9, 8, 1.) II. Other actions in case of theft. Of thefts there are [according to Servius Sulpicius and Masurius Sabinus, four kinds, manifestiim and nee Tnani/estum, conceptuni and oblaium. But Labeo makes] two kinds only, manifestum and nee manifestumj for con- ceptum and oblaium are rather species of procedure attaching to theft than kinds of theft. [And this is certainly the truer view, as will appear below. (J. 4, I, 3 ; G. 3, 183.) 1. Furtum conceptum. An action against the possessor (whether innocent or not of stolen goods. The term furtum eoneepturn is applied when in a man's house, before witnesses, something that has been stolen is sought and found. For against him there is a special action, even although he is not the thief, called the actio {/urti) eoncepti. (J. 4, i, 4 ; G, 3, 186.) 2. FuHum dblatuiti. Imposing stolen goods on one to escape the former action. The term furtum oblatum is applied when something that has been stolen is brought to you by some one, and is found on formal search in your house, especially if brought to you with the intention that it shall be found in your house and not in the giver's. For you, in whose house it is found upon a formal search, have a special action against the man that brought it, although he may not be the thief. And this is the actio oblaii. (J. 4, i, 4 ; G. 3, 187.) The penalty in the aciiones eoncepti and oblati is by the statute of the XII Tables threefold. And the same penalty is still enforced by the Prastor. (G. 3, 191 ) 3. Actio prohihiti f urti. Resisting the search for stolen goods. There is also an actio proJiibitifurti against the man that prevents another when wishing to search for stolen goods. (G. 3, 188.) This actio prohibiti is for a fourfold penalty, and was brought in by the Praetor's edict. But the statute fixes no penalty on that account ; it only orders the man that wishes to search to go naked to the search, girt with a ' Prceior ait : "In eum qui ex incendio, ruina, naufragio, rate, nave, expugnata, quid, rapuisse, recepisse dolo malo, damnive quid in his rebus dedisse dicetur, in quad- ruplum in anno, quo primum de ea re cx^enundi potestas fucrit ; post unnum in simplum judiciuin dabo," ACTIONS. 329 linen girdle and holding a flat dish ; and if he finds any stolen goods, the statute declares it a case oifurtum manifestum. (G. 3, 192.) What the hnen girdle is has been questioned. But the truer view is that it is a kind of decent covering for the man's loins. And so the whole statute is absurd. For the man that prevents another from searching with his clothes on, will also prevent him from searching with his clothes off ; and all the more that if the thing is sought and found in that fashion, he will be made liable to a greater penalty. And again, it is absurd to order him to hold a flat dish. For whether the aim was to keep the hands of the holder engaged so that he could not slip in anything, or to supply him with a dish whereon to place what he found, neither aim is attained if the thing sought for is of such a size or nature that it could neither be slipped in nor placed upon the dish. This assuredly is undoubted, that a dish of any material satisfies the statute. (G. 3, 193.) Yet because the statute ordains that a theft so discovered (viz., by the search lance et lido) is a furtum viani/esium^ there are some writers that say XhaX furtum manifestum is of two kinds — statutory and natural ; statutory being that of which we are speaking ; natural, what we have set forth above. But in truth furtum manifestu7n is natural ; for no statute can turn a fur nee manifestus into a fur m,anifesius any more than it can turn him that is no thief into a thief, or him that is not an adulterer or a man-slayer into an adulterer or man-slayer. But what the statute can do is this — it can ordain that a man shall be punished exactly as if he had been guilty of theft or adultery or manslaughter, although really guilty of none of them. (G. 3, 194.) There is also an actio prohibiti furti against the man that prevents another for searching for stolen goods when he wishes to do so in the presence of witnesses. Besides, a penalty is fixed by the Prastor's edict to be enfored by the actio furti non exhibiti against the man that has not pro- duced stolen goods, when sought for and found in his possession. (J. 4, i, 4.) But these actiones, furti concepti, furti oblati, furti prohibiti, and also furti non exhibiti, have fallen into disuse. For the search for stolen goods is not now-a-days conducted with the old formalities. And rightly, therefore, as a result of this, the actions just spoken of have passed out of common use. For it is plain beyond all dispute that all that knowingly receive and hide stolen goods are liable to the actio furti nee nianifesii. (J. 4, i, 4.) 4. CoTidictiofurtiva, For the recovery of stolen goods. Since actions are thus distinguished, it is certain that the plaintiff" cannot demand what is his from another by the formula, " Si paret eum dare oportere'' (if it appears that he ought to give it). For it cannot be said that what is the plaintiff''s ought to be given him ; for when a thing is given to anyone, what is meant is that it is given him to make it his ; and what is already the plaintiff's cannot be made any the more his. Plainly from hate of thieves, however, and to make them liable to more actions, it is provided that beside the penalty of twofold or fourfold damages in order to regain the thing, thieves should be liable to this action too, " si paret eos dare oportere^;' and that although there lies against them the actio in re)ii also by which a man claims what is his own. (J. 4, 6, 14; G. 4, 4.) The only person that could bring this action was he that was owner of the 33° OWNERSHIP. thing at the time the action was brought. (D. 13, 1, 1 ; D. 13, 1, 10, 2.) It may be brought against the heirs of the thief. (D. 13, 1, 5 ; D. 13, 1, 7, 2.) In another respect it differs from the action for theft ; namely, that if any one of several accomplices is sued and pays, the rest escape. {C. 4, 8, 1.) The defendant is bound to restore the thing if he has it, or to pay its value if he has not. (C. 4, 8, 2 ; D. 13, 1, 8, 1 ; D. 13, 1, 13 ; D. 13, 1, 3.) III. Kobbery. Actio Vi BoTwrum Raptorum. The actio vi bonorum raptorum. if brought within a year is for fourfold, after a year for the direct loss only. And this action is available even if the robber has taken but one thing, and that the most trifling. The fourfold claim, however, is not wholly penal ; for it includes beside the penalty the recovery of the thing taken, just as in the actio furti manifesti of which we have spoken. In the fourfold amount, then, the recovery of the thing is included, so that the penalty is threefold, and that whether the robber is arrested in his wrong-doing or not. For it is absurd that a robber by force should get off more lightly than a thief by stealth. (J. 4, i. pr.) It must also be remembered that a robber is necessarily a manifest thief, because the exercise of violence implies resistance. (D. 47, 2, 80, 3.) IV". Damagea, Damnum, injuria. This action may be brought alternately with a criminal prosecution. It is open to him whose slave has been killed both to proceed at private law for the damage done (under the lex Aguitia), and to charge the slayer with a capital crime. (J. 4, 3, II ; G. 3, 213.) 1. The measure of damages. Ist Chapter of the lex Aquilia. These words in the statute, "the highest value he bore within a year," mean, tliat if anyone kills a slave of yours that at the time limps or is blind of an eye, or maimed, but within a year of his death was sound and valuable, then the slayer is bound to pay not the value at the time, but the highest value the slave bore within the year preceding. And so one is liable not merely for the loss he has inflicted, but sometimes for far more. And on this ground it is believed that the action under this statute is penal. It is agreed, therefore, that it cannot pass so as to be brought against his heir. It would, however, have passed if damages were never given beyond the actual loss. (J. 4, 3, 9; G. 3, 214.) 3d Chapter of the lex Aquilia. It is manifest that, as under the first chapter, a man is liable if by his dolus or culjia a man or a fonrfooted beast is killed ; so under this chapter he is liable for all other damage caused by his dolus or czclpa. (J. 4, 3, 14.) But under this chapter the amount of damage in which the wrongdoer is condemned, is the value within the last thirty days, not within a year. And even the word "highest" is not added. [Some writers, therefore, of the opposite school, have thought that, in so far as relates to the last thirty days, the Prstor was free to insert in the formula the day on which the thing was of most value, or another on which it was of less.] But Sabinus rightly decided that the damages must be reckoned just as if here too the ACTIONS. 331 word "highest" had been added. For the [lawgivers] Roman commons, who on the proposal of the tribune Aquilius passed this statute, contented themselves with using the word in the first part. (J. 4, 3, 15 ; G. 3, 218.) Comimon to both chapters ; remote damages. It has been decided, not by the express wording of the statute, but as a matter of interpretation, that the judge must reckon, as we have said, not the mere value of the body that is cut off, but further, all the damage over and above that is done you by the cutting off of that body. [If by the killing of another's slave the master suffers damage greater than the price of the slave, that too is reckoned.] If, for instance, some one appoints your slave his heir, and before the slave enters, by your orders, on the inheritance, he is killed ; then it is agreed that in reckoning the damage the loss of the inheritance must be taken into account. And, again, if one of a pair of mules or of a team of four horses, or one of twins, is killed, or one slave out of a band of comedians or singers, the reckoning includes not only the person killed, but in addition the deprecia- tion in value of the rest. (J. 4, 3, 10 ; G. 3, 212.) The Measdbe op Damages is the loss sustained by the negligence or wrongful act of defendant (quanti interfuit Twn esse occisum). {D. 9, 2, 21, 2.) A slave whom his owner is bound under a penalty to give to a purchaser is killed. This penalty is the measure of loss, if the slave is wrocgfuUy killed before the day he is to be dehvered. (D. 9, 2, 22, pr.) A slave has committed great fraud in his accounts with his master, and the master intends to put him to the torture to discover his accomplices. Before doing so, how- ever, the slave is killed. The measure of damages is the value of the discovery to be made by the torture of the slave, and not merely the market value of the slave. (D. 9, 2, 23, 4.) The damage must, however, be certain. Thus the measure of damages in destroy- ing nets is not the possible capture of fish, but merely the value of the nets ; because that is the only quantity capable of being determined. (D. 9, 2, 29, 3.) Apretium affeetionis was not recognised. Thus, if the slave killed happened to be a natural son of his owner, no increase of damages could be obtained. (Pretia rerum tion ex afectione, nee utilitate sinyvlorum, sed communiter fungi.) [D. 9, 2, 33, pr.) 2. A defendant denying his liability was subject to a penalty of double damages. (D. 9, 2, 23, 10 ; C. 3, 35, 4.) 3. The action is given to, but not against, the heirs, unless in so far as the heir of the defendant has been enriched by the wrongful act or negligence. (D. 9, 2, 23, 8. ) Second, Duties in respect of self -moving things [res se Tnoventes). I. Pauperies. The actio de pauperie is noxal [Twxalis actio) ; that is, it imposes an alternative duty on the owner of cattle that has done damage either to surrender the animals or pay the damage. It dates from the XII Tables. The action lies only against the owner [dominus), and may be brought, not only by the owner of the thing injured, but by the borrower of it, or other persons interested in it. (D. 9, 1, 2, pr.) It is given to the heirs of the injured party, and also against the heirs of the owner of the animal that did the injury, if they are owners by right of succession. (D. 9, 1, 1, 17.) If the defendant in an action de pauperie denies the ownership, and it is proved against him, he must pay the full amount of the damage, and cannot escape by the surrender of the animal. (D. 9, 1, 1, 15.) II. The action for double penalties on the edict of the .^diles being penal could be brought by the heirs of the sufferer, but not against the heirs of the vfrongdoer. 23^ OWNERSHIP. Third, Protection of rights to immoveables (res immohiles), I. Actio de termino moto, 1. The penalty was 50 aurei for each stone removed, and went to the fiscus. 2. The action was popularis ; i.e. , any one could bring the action, whether the person injured or not. II. Ejectment by force. Interdict de vi et vi armata. (D. 43, 16.) What penal actions were to moveables, interdicts were to immoveables. The differ- ence in the remedy arises from the difference in the thing. Moveables can be furtively abstracted ; immoveables hardly, except by removing landmarks. The interdict by which possession was restored to a person that had been disturbed by force, served the same purpose as the action vi honorum raptorum for the robbery of moveables. In the case of land, the effect of violence is simply to remove the possessor, not to take away the land. That can always be found, and is beyond the reach of the robber. Hence, while in robbery the law regards the act of violence as having accomplished its object, and as beyond recall, and attempts only to apply a very strong motive to »U men to refrain from the like acts, in the violent dispossession of immoveables it keeps less in view the punishment of the wrongdoers than the restitution of the possessor. It proceeds not by penal actions, but by supplying a complete remedy to the sufferer. 1. The object of the interdict is restitution of the possessor ; that the defendant shall peaceably suffer the possessor to resume possession. (D. 43, 1 6, 1, 42. ) If the defendant has himself lost possession, he is condemned to pay a sum compensating the possessor for his loss. (D. 43, 16, 15 ; D. 43, 16, 1, 42.) Although the interdict is primarily applicable only to immoveables, yet, if restitution is ordered, it will include all the moveables on the land at the time of ejectment. (D. 43, 16, 1, 32-33.) The dispossessor is also compelled to restore the fruits he has, or ought to have, gathered. (D. 43, 16, 1, 40-41.) 2. The interdict may be brought by the heirs of the person ejected (D. 43, 16, 1, 44), but not against the heirs of the dispossessor. The remedy against them is an actio iri factum for the restitution only of what had fallen into their possession. (D. 43, 16, 1,48; D. 43,16, 3,18.) 3. The interdict dc vi cottidiana must be brought within a year from the ejectment (D. 43, 16, 1, 39 ; C. 8, 4, 2) ; but by a constitution of Constantine the time did not run against those who were absent. (C. 8, 5, 1.) The interdict de vi armata could be brought at any time. (Cic. ad Fam. 15, 16.) Justinian put both on this footing : that both interdicts should be given with all their consequences within the year ; and after the year, only for that which came to the hands of the person who resisted the restoration of the possessor, III. Offences against the use of an immoveable. 1. Actio ariorum furtim caesarum. V. Penalty. The XII Tables imposed a penalty of 25 asses for each tree. This fell into disuse, and its place was taken by the edict giving a penalty of double the damage sustained (D. 47, 7, 7, 7) ; i.e., double the loss that the damage causes the owner [quanti domini interdt non laedi), including, therefore, more than the mere value of the trees destroyed. (D. 47, 7, 8, pr.) 2°. Like all penal actions, it could be brought by, but not against, the heir. (D. 47, 7, 7, 6.) 3°. If there were more than one person concerned in the mischief, each must pay double the damage. (D. 47, 7, 6, pr.) 4°. This action was concurrent with (1) actio damni injuria ; (2) the interdict quod vi aut clam (D. 47, 7, 11) ; and (3) if the trees were out down, lucri faciendi causa, the actio furti could be brought. (D. 47, 7, 8, 2.) 2. A ctio legis Aquiliae — could bo brought for injury to immoveables as well as to moveables. ACTIONS. 333 3. The special remedy, however, for that purpose, was the interdict qxiod in aut clam. 1°. The object of the interdict was restitutory. The wrongdoer was bound not only to permit the old status to be restored, but to pay the expense of doing so, and could be condemned in a sum compensating the sufferer for the wrong done. (D. 43, 24, 15, 7.) If the wrongdoer is not in possession, he is liable for the expense ; if the person who is in possession was not the wrongdoer, then he is bound only to suffer restitution, not also to defray the cost. (D. 43, 24, 16, 2.) 2°. The interdict could be brought not only by the owner, but by anyone that had an interest in preventing the objectionable acts. (D. 43, 24, 11, 14 ; D. 43, 24, 16, pr.) 3°. It could be brought by the heir, and against the heir to the extent of what was in his power to remedy. (D. 43, 24, 15, 3.) 4°. The interdict was only for one year (D. 43, 24, 15, 3) ; but the time did not run against minors, or those absent on the service of the State. (D. 43, 21, 15, 6.) 4. Interdict uti possidetis. This interdict will be described in the proper place {possessio) ; but here it may be referred to as occasionally employed in repelling attempts to interfere with an owner or possessor in the free use of his land. (D. 43, 17, 3, 4.) IV. Wrongs by adjoining proprietors. 1. Interdict de arhoribus caedendis. — The object of this interdict is to compel the owner of trees overhanging his neighbour's land to cut them down, or to permit him to cut them down. (D. 43, 27, 1, 2.) 2. Interdict de glande legenda. — The object was to compel the owner of adjoining land to permit his neighbour to enter every third day and collect fruits falling on it. 3. Actio aqua^ pluvkte arcendcte. — This action is not in rem but in personam, against him that has made any construction that threatens damage to his neighbour in respect of rain water. (D. 39, 3, 6, 5 ; D. 39, 3, 1, 1.) It could be brought only by the owner of the injured land, and only against the owner of the land from which the damage issued. (D. 39, 3, 3, 4.) If a tenant committed the wrong, the remedy against him is the interdict quod vi aut clam. (D. 39, 3, 5.) But a utilis actio (aquae pluviae arcendae) was given to and against the usufructuary and the emphyteuta. (D. 39, 3, 23, 1 ; D. 39, 3, 22, pr. ; D. 39, 3, 22, 2.) If the owner has done the wrong, he must undo it at his own expense : if he has not wilfully done it, he must permit the injured person to remove the grievance. (D. 39, 3, 6, 7.) The defendant is only answerable for damage accruing after the lis contesiata, not before ; the proper remedy in that case being the interdict quod vi aut dam. (D. 39, 3 6, 6 ; D. 39, 3, 6, 8 ; D. 39, 3, 14, 3.) The heir of the wrongdoer may be sued. (D. 39, 3, 6, 7. ) B. Remedies roE IhVestitive, Tbansvestitive, Divestitive Facts. I. Vindicatio. Hitherto, in the remedies that have been enumerated, it has been assumed that there was no dispute as to ownership ; that being admitted, the only question was by what means the undoubted owner could assert his rights against those that infringed them, but without setting up a rival title of their own. We now come to the action in which the question of ownership itself could be tried ; when the point to be determined is simply which of two or more claimants is the owner of the property in dispute. In this controversy the real issue raised was whether an investitive or transvestitive fact existed in favour of the claimant ; and thus we have to examine the means by which an investitive or transvestitive fact was established in law. The vindicatio was the same whether it applied to moveables or immoveables (D. 6, 1, 1, 1) ; but it was not the proper remedy for the recovery of of persons under the potestas (D. fi, 1, 1, 2) ; nor did it apply to disputes concerning sacreil 334 OWNERSHIP, or religious places (D. 6, 1, 23, 1) ; nor to those other forms of ownership that have been described with their appropriate remedies. 1. Only the owner (domirms) can bring the vindicatio. (D. 6, 1, 23, pr.) The person invested with the ownership may bring the vindicatio, although by a condition annexed to the investitive fact he is liable to be divested of it at a future time. (D. 6, 1, 41, pr. ; D. 6, 1, 66 ; D. 60, 17, 206.) A person not actually invested with the ownership, although he is in a position to demand investiture, cannot bring the vindicatio. Thus a purchaser, before the article bought has been actually delivered to him, is confined to his action against the vendor, and cannot by vindicatio recover the thing itself. (D. 6, 1, 50, pr.) 2. Only the person in possession of the thing sued for is the proper defendant in a vindicatio. (0. 3, 19, 1.) In this instance the word possessor is used in its largest signification, including not only such a possessor as could protect himself by interdict, but anyone that had physical control over the thing, and could restore it. (D. 6, 1, 9.) To prevent injustice, by the setting up of a sham possessor to defeat the true owner, special precautions were required by a constitution of Constantino in the case of immoveables. If the possessor of an immoveable were not the true owner, he ought at once to state in court the name of the real owner ; whether such owner lived in the same city, or in the country, or in another province. The pos- sessor is thereupon regarded as out of the suit, and the owner is, within a time to be named by the judge, to be summoned to appear ; and if he fails, the plaintiff is to be put in possession — reserving, however, leave to an absent owner to reopen the question. (C. 3, 19, 2.) A possessor, who handed over the property to another to avoid judgment, was regarded as still in possession, because, to use the quaint phraseology of Paul, the fraud is tantamount to possession (pro possessione dolus est). (D. 50, 17, 131.) A possessor is also responsible if he has lost the thing, not intentionally, but throtrgh negligence ; thus, if he has sent a ship to sea insufficiently equipped, and it is wrecked. (D. 6, 1, 36, 1.) 3. Where must the vindicatio he brought ? Generally speaking, an action must be brought within the jurisdiction in which the defendant lives [Actor rei forum, sive in rem, sive in pei^sonam sit actio, sequiticr) (C. 3, 19, 3) ; but in actions in rem the action was required to be brought in the place where the property was situated. (C. 3, 19, 3.) 4. Steps preliminary to the suit. Anciently, the elaborate introduction of the sacramenfwm prefaced every suit for ownership, but that fell into disuse ; and indeed, in later times, the vindicatio itself was very much thrust into the background. The history of this point cannot weE be nnderstood until the history of possessio is examined ; but the following facts may be here noted. The burden of proof rested upon the claimant { petitor) ; the defendant was not bound to show that he had any title whatever. (C. 3, 31, 11.) The defendant had therefore an enormous advantage, because, unless the petitor conclvisively estab- lished his right, he lost his action. Possession was thus made worth, if not nine, at all events a considerable number of points of the law. The contest then began for the possession. The owner tried by means of an interdict to regain possession ; and if he succeeded in that step, he seldom required to do anything more. It was only when the owner had neglected his claim, or for any other reason could not demand an interdict, that he was obliged to appear as claimant {petitor} in the vindicatio. (D. 6, 1, 24.) Now, what the interdict was to immoveables, that the actio ad exhi- bendum was to moveables. The purport of this action was simply to have the property in dispute produced in court ; but as no one could succeed in that who could not show some interest in the property, the question of ownership was virtually raised, and often practically decided, in the preliminary action. Such was not its ostensible object, for in reality the actio ad exhibendum was only a personal action, ACTIONS. 335 not an action in rem (D. 10, 4, 3, 3) ; but it was a preliminary tlmt often rendered it unnecessary to take any further steps. In an ach'o ad ezhibe7tdum (for production) it is not enough for the defondant to produce the object, but he needs must produce also all that appertains to it (causa rei). In fact the plaintiff must have it in the same condition as he would have had, if the thing had been produced and handed to him when first he brought the actio ad exhibendum. And, therefore, if by means of the delays between, the possessor has acquired the thing by usucapio, yet none the less he shall be condemned to restore it. And, besides, the judge ought to take account of the fruits yielded during the interval — during the time, that is, between the plaintiff's receiving leave to go before a judge and the giving of the decision. If, however, the defendant denies that he can produce the thing at present, and asks time to do so, and that seemingly not with intent to hinder justice, then time ought to be given him ; provided always that he gives security that he will make restitution. But if he neither produces the thing at once in obedience to the order of the judge, nor gives security that he will do so hereafter, then he must be condemned to pay a sum representing the plaintiff's interest in having the thing produced from the very first. (J. 4, 17, 3.) 5. The judgment. — The chief object of the vindicatio was the restitution of property to the owner. If the possessor refuses to deliver up the property when judgment is given against him, the successful litigant will be put in possession by force [man/u militari). If the possessor has fraudulently given up the thing to another, and is therefore "unable to restore it, he is condemned in a sum which is fixed by the oath of the demandant {fetitor) ; if he is unable to give it up from causes other than fraud, he is condemned in a sum fixed by the judge. This general rule prevails iu every form of action when th« object is restitution. (D. 6, 1, 63.) Several other ends might be accomplished by the judgment. Thus, if the possessor had injured the property, he was amenable to the lex AquUia ; but if the demandant chose, he might have the damage included in the judgment on surrendering his right to sue under the lex Aquilia. (D. 6, 1, 13 ; D. 6, 1, 14.) When a slave had been beaten, the same .alternative was presented with the actio injuriarwm. (D. 6, 1, 15, pr.) Fructu^, Causa, Instrumentum. — The most important addition to the judgment in a vindicatio was the restitution of the fruits, produce, or other accessories accruing to the property during the time it remained with the possessor. Hence it occasionally happened that, even when the property had perished, judgment in a vindicatio could be given on account of the frtiits or produce. (D. 6, 1, 1 6, pr.) Fi^uctus was used in an extended sense, like glana. Olans properly is an acorn, but it was used as a name for every sort of fruit growing on plants, shrubs, or trees. (D. 50, 16, 236, 1.) So fructus was employed to signify not only fruits in general, but mineral produce and the young of animals, (D. 50, 16, 77.) It includes also {fructus civiles) the rents of houses. (U. 22, 1, 36.) Usury was not considered the fructus of money lent, because it did not arise from the money itself, but from a. special agreement. (D. 50, 16, 121.) Causa includes the offspring of a female slave, which, out of respect for humanity, was not treated as fructus. It applied also to any actions accruing to the owner of the slave, as an actio ler/is AguiUae, for damage done to the slave. (D. 6, 1, 17, 1.) In the same manner, an inheritance or legacy given to a slave was considered causa. (D. 6, 1, 20.) Instrumentum. — The instrumentum of a house is contrasted with ornament : it does not form part of a house, but is added to it by way of protection, chiefly from fire and tempest. (D. 33, 7, 12, 16.) The instrumentum of a farm is the implements required 33^ OWNERSHIP. for obtaining and preserving the produce. (D. 33, 7, 8, pr.) Instrumentum is dietin- guished from pars fundi, becatise not affixed to the soil. (D. 19, 1, 17, pr.) In suiutj for a ship it was necessary to demand separately its armamenta, rigging, tackle, anchors, ship's boats, etc. (D. 6, 1, 3, 1.) To what extent then must the possessor restore not only the thing, but its fructus causa, and instrumeniMm ? The answer depends upon n, distinction that has already been explained in its bearings on accessio and usucapio; namely, that between a bona fide and mala fide possessor. The mala fide possessor is bound to restore the thing with all its fructus, etc. ; and not merely the fructus he has actually gathered, but what the owner could have enjoyed had he been suffered to possess his own. (D. 6, 1, 62,1.) The bona fide possessor is bound to restore all the produce in the same manner from the time of the litis contestatio ; but before that time only those in existence, which have not been acquired by him by usucapio. (C. 3, 32, 22.) The usucapio runs from the moment the/)'«cfm are separated from the soil. (D. 41, 1, 48, pr.) And if the action is in rem, the duty of the judge is, if he decides against the plaintiff, to acquit the possessor ; but if against the possessor, to order him to restore the object in dispute and its fruits as well. If, however, the possessor affirms that he cannot restore it then, and asks for time to do so, seemingly with no intent to hinder justice, then the favour should be granted him ; provided always that he gives security both by himself and by a surety for the value of the object in dispute {litis astimatio) if he does not restore it within the time given him. If it is an inheritance that is claimed, the same rules in regard to fruits are observed as those that come in, as we have said, in claims for single objects. Those fruits that by his own neglect {culpa) the possessor has not gathered, are treated pretty much the same in both forms of action, if the possessor was a robber. If, however, he was in possession in good faith, no account is taken of those that are consumed or ungathered. But account is taken from the date on which the claim first was made of those that by the possessor's neglect either were not gathered, or were gathered and consumed. (J. 4, 17, 2.) On the other hand, the defeated possessor had claims upon the petitor. If a man buys a farm in good faith from one that is not the owner, believing him to be the owner, or receives it from him in like good faith as a gift, or on some other lawful ground, it is decided by natural reason that the fruits he has reaped shall be his in return for his tillage and care. And, therefore, if the true owner afterwards comes forward and claims the farm, he can bring no action for the fruits the possessor has consumed. But if th'e possessor knew the farm to be another's, no such favour is granted him. And so he is forced to restore not only the farm, but the fruits as well, even though they have been consumed. (J. 2, i, 35.) As might he expected, least indulgence was shown to a mala fide possessor. He could demand a set-off only for necessary expenses (impensae necessariae) ; as regards utiles impensae, he could carry off only what might be taken away without leaving the property worse than he found it. (C. 3, 32, 5.) The bona fide possessor cannot sue the petitor for even necessary expenditure, but he can resist ejectment by exceptio doli mali until his claim is met. (D. 6, 1, 48.) If the possessor has had to pay damages for a wrong done by the slave whom he must restore, he must have the amount repaid him. When he has built on the land from which he is to be ejected, the 'petUor had the option of allowing him to remove the building instead of giving compensation. (D. 6, 1, 27, 5 ; C. 3, 32, 16.) JOINT-OWNERS. 337 A has imprudently bought land belonging to B, and has built upon it or sown it. A is evicted at the suit of B. What ought to be done with the improvements ? KB would have done the same thing if in possession, he ought to pay to the extent to which A has improved the land. If, however, B is poor, and would be deprived of his ancestral property if he had to pay A out in full, then A shall have power to carry away only in so far as he does not injure the land ; and even B may in certain cases be allowed to retain the things for what it would be worth to A to carry them off. If, again, B were trying to recover the property to sell it, he must pay the full value of the improvements. (D. 6, 1, 38.) 6. Costs. By the XII Tables," if the possessor failed, he must pay double the produce. This lasted up to a.d. 309 ; and we learn from a constitution of Valentinian and Yalens (C. Th. 4, 18, 1), that the possessor had to pay double fructus, in addition to the regular costs of suit, if he were evicted by the judgment. This constitution is not contained in the Code of Justinian, and we may, therefore, take it that in his time the double penalty had fallen into disuse. In the actio finium regundorum 'iht judex ought to look narrovifly whether any award is needful. In one case, certainly, it is needful, if it is more con- venient that the fields be marked out by clearer bounds than they have been marked with of old. Then some part of one man's land must be awarded to the owner of the other land ; and in this case it follows that the latter ought to be condemned to pay to the former a fixed sum of money. And there is another ground for condemning a man in this proceeding ; namely, if, as may happen, he has wilfully done some wrongful act in regard to the bounds — stolen the boundary-stones, for instance, or cut down the boundary-trees. And obstinate contempt of court {contumacid) too is a ground of tondemna- tion in this proceeding, as when the judex orders the lands to be measured, and the owner does not allow this to be done. (J. 4, 17, 6.) JOINT-OWNERSHIP {Condominium). Definition. Joint-ownership exists when more than one person has an interest as owner in any undivided thing. The owners are entitled in common to the produce of the property, and must in common defray the necessary expenses. And again, if something belongs to several persons (not partners) in common ; if it has been, for instance, bequeathed or given to them equally ; and if one of them is liable to a proceeding communi dividundo on the part of the other, because he alone has enjoyed the fruits of that thing, or because his fellow-owner has alone spent what was needful upon it, then he cannot be said to be subject to an obligatio ex contractu, for no contract was made between them ; and because he is not liable ex malejicio, he is liable quasi ex contractu. (J. 3, 27, 3.) 1 [Si vindiciam falsam tulit, si velit is .... tor arhitros tris data, eormn arbitrio , . . fructus duplione damnum decidito.) Y s3^ ownership, Eights and Duties. A. Rights of Co-owners. 1. The co-owners are entitled to the produce according to their shares. (D. 10,2, 56.) The mode of enjoying the produce may be determined by agreement between the parties, thus — that each shall have the fruits in alternate years. (D. 10, 3, 23.) 2. Each owner is entitled to alienate his undivided share (C. 3, 37, 2) ; and, upon his death, it descends to his heirs, (D. 10, 3, 4, 3.) B. Duties of Co-owners. 1. It is the duty of the joint-owners to defray their share of the expense incurred by any one of them on behalf of the joint- property, and also to exonerate a joint-owner from any liability he has incurred. (D. 10, 3, 4, 3 ; D. 10, 3, 15.) This includes all expenditure from the date that the property was held in common (D. 10, 3, 4, 3), up to the time that judgment is given in a suit for partition. (D. 10, 3, 6, 3.) One of two joint-owners (brothers), for his own better accommodation, adds a new wing to the family mansion. This comes mader the head of ornamental ex- penditure (voluptariae impensae), and cannot be recovered. (D. 3, 5, 27, pr.) A and B are co-owners of a slave. A releases the slave from pawn. The slave dies. A can require B to share the expense of releasing the slave. (D. 10, 2, 31.) A and B are co-owners of a slave ; and A, being sued in an action de peculio, is compelled to pay a debt contracted by the slave. B must pay his share of that sum. (D. 10, 3, 8, 4.) A and B are co-owners of a farm ; A thinks that C is his co-owner. A spends money on the farm for necessary and beneficial purposes. Can he sue B to compel him to pay his share ? Yes, because he acted as a partner, although he was mistaken in the person. (D. 10, 3, 6, pr. ; D. 10, 3, 29, pr. ) But if A did not know that B was a partner, and thought himself sole owner, he could not afterwards sue B, for he did not intend to form an obligation with anyone (D. 10, 3, 14, pr.) ; but he could, as a iona fide possessor, resist eviction until he had received compensation for his outlay, (D. 10, 3, 14, 1; D. 10, 3, 6, 2.) 2. Each co-owner must share in the loss caused by a slave or animal held in common. If a slave held in common steals from one of the owners, or injures his separate property, the other owners must share in the loss, or surrender their share in the slave. If the co-owners have sold their share the pur- chaser is responsible, because the remedy follows the slave (actio noxalis caput sequitur) ; and so, if the slave is dead, there is no redress at all. (D. 47, 2, 61, pr.) ' 3. Each co-owner is bound to take the same care of the common property that he does of his own, and must make good JOINT-OWNERS. 339 all loss sustained by his default to the co-owners in proportion to their shares. (D. 10, 3, 8, 2 ; D. 10, 2, 25, 16 ; D. 10, 3, 20.) A co-owner is not responsible, however, for more than the actual loss sustained ; he is not subjected to any penalty, as under the Aquilian law. (D. 10, 2, 17.) In like manner, the heir of an owner is liable for all damage done by his ancestor, although he Avould not be responsible under the Aquilian law. (D. 10, 3, 10, pr.) The reason is that he is not subject to penal damages, but only to such as equity requires. Investitive Facts. — 1. By agreement between two or more persons forming a partnership (societas) ; in this case actual delivery of the property is not necessary. 2. By legacy of a thing to two or more persons, or by gift or other mode independent of the agreement of the co-owners. (D. 10, 3, 2, pr.) It was unnecessary that the parties should obtain the pro- perty at the same time, or in the same right. Thus, when a partner sells his share, the buyer becomes a co-owner with the former partner ; and so when a co-owner dies, and is succeeded by his heir. (C. 3, 37, 2 ; D. 10, 2, 48.) Divestitive Facts. — 1. Release. If a co-owner agrees to refrain from demanding his share, the joint-ownership is at an end. (D. 10, 3, 14, 4.) 2. Voluntaiy division. If the co-owners are not minors, they may divide the property, in the usual mode, by delivery of possession. (C. 3, 38, 8.) Writing was not required. (C. 3, 36, 12 ; C. 3, 37, 4.) A voluntary division might take place, even after an application for a judicial partition. (D. 10, 2, ^^•) 3. Judicial partition. Any co-owner had aright to a judicial partition. (D. 10, 3, 29, 1 ; D. 10, 3, 8, pr.; C. 3, 37, 5.) An agreement that the property should not be divided for a certain time delayed the application, but an agreement that the property should remain for ever undivided was void. (D. 10, 3, 14, 2.) The judge had perfect freedom in the mode of division, but was bound to make such a division as the co-owners desired, or was most expedient for all. (D. 10, 3, 21 ; C. 3, 37, 1.) The steps are the same if the aciio communi dividundo is brought in regard to more things than one. For if it is brought in regard to some one thing — a field, for instance — if that field can be conveniently divided, a part ought to be adjudged to each ; and if one man's part seems unfairly large 340 OWNERSHIP. he ought to be cotidemned in turn to pay a fixed sum of money to the other. But if it cannot be easily divided— if it is a slave, perhaps, or a mule, that is the object of the action— then it must be adjudged entire to one, and he must be condemned to pay the other a tixed sum of money. (J. 4, i7. 5-) The judge could give the land to one, and a usufruct of it to the other (D. 10, 2, 16, 1 ; Frag. Vat. 47 ) ; also, he could impose a servitude upon one portion of the divided laud in favour of another. (D. 10, 2, 22, 3 ; D. 10, 3, 18.) And in those proceedings whatever is adjudged to anyone becomes at once the property of him to whom it is adjudged. (J. 4, 17, 7.) But the parties must guarantee each other against eviction (D. 10, 3, 10, 2) ; they were in fact regarded as reciprocally vendors and purchasers, each a purchaser of his own share, and a vendor of all the other shares. (C. 3, 36, 14; C. 3, 38, 1.) Kemedt. Actio commitni dividundo. This action might be brought, during the continuance of the joint-ownership, to enforce the duties of the co-owners, as well as to obtain a judicial partition. (D. 10, 3, 14, 1 ; D. 10, 3, 23 ; T>. 10, 3, 6, 1 ; D. 10, 3, 11.) 1. The plaintiff and defendant are not distinguished in this suit very easily, as all have the same interest. In one sense all parties are at once plaintiffs (actores) and defendants (rei) (D. 10, 2, 2, 3 ) ; but in a special sense, the person that demands the judicial partition may be called plaintiff {actor). (D. 10, 3, 2, 1.) 2. The action may be brought more than once, so long as any of the joint-property is undivided. (D. 10, 3, 4, 2.) Some actiones seemed to be mixed in character, being at once in rem and in personam. Such are the actio famiiiae ercisamdae, open to co-heirs for the division of the inheritance ; ccmvitmi dividundo^ given as between those that for any reason have come to be joint-owners, and wish the property to be divided ; and finium regiatdoriim, an action between owners of adjoining lands. In all three proceedings the judge is allowed to adjudge the property to one of the parties in the action on fair and equal grounds ; and if one man's part seems too large, to condemn him to pay in turn to the other a fixed sum of money. (J. 4, 6, 20.) POSSESSION. 341 POSSESSION. Definition. Possession is the occupation of anything with the intention of holding it as owner. Exceptions. — Two exceptions are recognised in the Digest — pignxis aad precarium. A mortgagee and a tenant at will have possession, although their interest necessarily excludes the notion of ownership."^ Explanation. — It is immaterial whether an occupier of a thing, who means to keep it as his own, believes himself to hold as owner (bona fides) or knows that he is not owner {mala fides). The distinction between possession bona fide and mala fide is vital for usucapio (p. 268), but for the purpose of possession, it is irrelevant A thing is said to be occupied or held (tenetiiv), when the occupier is in a position freely to deal with it. A captain occupies his ship, but not the ocean through which it passes. An occupier, if not also a possessor, had no legal remedy to protect him in his occupation. But an occupier, holding as owner, and, therefore, a possessor, was secured in his possession by interdicts, as effectually as if he were a true owner. To obtain such protection, it was not necessary that the possessor should personally occupy or hold the thing ; it was enough if the thing were occupied by his agent. In one case, however, a mere occupier was allowed one Interdict. A tenant of land, who, according to the definition of possession, could not possess, inasmuch as his intention was not to hold as owner, could, if evicted from his farm, bring the Interdict Quod vi aut clam to recover his crops; but not any other Interdict. (D. 43, 24, 12.) ^ Licet enim juste possideant, rum tamen opinione domini possidmt. (D. 9, 4, 22, 1.) 342 POSSESSION. Subject to exceptions by no means inconsiderable, but not worthy of discussion in detail, the correct meaning of the Roman technical terms relative to the question of possession is as follows : — Mere occupation, not protected by Interdicts, was called Detentio, Naturalis Possessio or Custodia. For exceptions, see D. 43, 16, ], 9-10. Possession fortified by Interdicts is called possessio simply, or possidere, without any qualifying adjective or adverb. For an exception, note missio in possessionem, and the text in D. 10, 4, 3, 15. When possession is accompanied by bona fides and the condi- tions requisite for usucapio, it is generally called civilis possessio. For an exception, see D. 4] , 2, 24. Rights and Duties. A possessor, so long as his possession continues, has the rights of an owner. Indeed, the very meaning of possession is that it secures, without title, the enjoyment of property. So a possessor was liable, like an owner, to actiones noxales. (D. 9, 4, 13 ; D. 9, 4, 11.) To this rule, however, pignus and precar- ium are exceptions. (D. 9, 4, 22, 1.) In the case of immoveables, the possessor had exactly the same remedies as the ownei-, — the Interdicts Unde vi and Quod vi aut clam. In the case of moveables, for theft or damage, a possessor was not altogether iu so good a position as the owner, unless he possessed bona fide. (D. 9, 2, 11, 8.) The case of those peregrini that did not enjoy commercium with the Roman people, was met in the manner stated by Gains in the following passage : — And again, an alien is by a fiction regarded as a Roman citizen, when he is plaintiff or defendant on some ground for which an action is established by our Statutes, provided only it is just that such an action should be ex- tended even to an alien. If, for instance, it is alleged that an alien has aided or been privy to a theft, and an action is brought against him, the formula is framed thus : — " Let there be a. judex. If it appears that Dio, a Greek, aided or was privy to the theft of a golden platter from Lucius Titius, and ought, on that account, if he were a Roman citizen, to be cast in damages as a thief," and so on. Again, if an alien brings an action for theft, he is by a fiction regarded as a Roman citizen. In like manner, also, if under the lex Aquilia an alien bring an action for dam?ium injuria, or if such an action is brought against him, then by the fiction that he is a Roman citizen a remedy is given. (G. 4, 37.) PHYSICAL BASIS. 343 The Statutes referred to, it is supposed, must in terms have been applicable only to citizens ; hence the necessity, if peregrmi were to be protected in their property, for an extension of the actions in the manner stated by Gaius. Acquisition op Possession. Possession involves a physical fact (corpus), and a mental state (animus). " We gain possession with the body and mind, but not with the mind itself, nor with the body itself." ^ Let us examine first the nature of the physical fact required for possession. A. The Physical Fact (Corpus). The fundamental difference between a title to ownership and a possessory title, is that the former may be gained while absent, but the latter only in the presence of the object. To possess a thing, we must be able to deal with it and use it at pleasure. For this purpose actual contact with the object is unnecessary (non corpora et actu sed etiam oculis et affectu). (D. 41, 2, 1, 21.) Many writers, prior to Savigny, felt so much difiBculty in following out this idea, that they came to the con- clusion that an actual physical basis for possessory rights was not always required in the Roman law, but that, in some cases at least, its place might be taken hj fictitious or symbolical pre- hension. Savigny has done good service in showing that the necessity for resorting to such legal fictions arises from giving, in the first instance, too narrow an interpretation to the physical basis of possession. The power of dealing with a thing at pleasure may be pre- vented by one of two causes — either by physical difficulties, or by the opposition of another's will. Thus, one living in England cannot occupy land or other objects in the heart of China or Africa, until by going to those countries he has got over the obstacle of distance. [For the momeut, we leave out of account the possibility of occupying by an agent] Again, to take an example from the Digest (D. 41, 2, 13, pr.), a ship carrying marble is wrecked in a river. Here the possession is lost ; for, until the owner has succeeded in raising the marble, the water interposes an insuperable obstacle to his freely deal- ing with it. In the case of ferts naturce, other examples are given. ' Apiscimur possessionem corpore et animo ; neque per se animo, aut per se corpore, (D. 41, 2, 3, 1.) 344 POSSESSION. But the opposition of another's will may as efiectually pre- vent the power of dealing with an object, as an obstruction in nature. A man does not acquire the free power of dealing with an object, unless he has overcome the resistance of an opponent. In acquiring possession of objects not before owned or pos- sessed by others, the question is whether the intending pos- sessor has so far overcome the physical difEculties as to be able freely to deal with the object. In this case, attention is principally fixed on the physical attitude of the claimant. But when it is a question of the transfer of possession, the chief, or rather the sole obstacle in the way of a new possessor is the will of the previous possessor. As soon as that is removed, there is pi-actically no hindrance to the new possessor; and in this case, attention is fixed chiefly upon facts from which the intention of the previous possessor to go out and leave the thing to the occupation of the new possessor, may be with reasonable certainty inferred. Thus, in the case of deliverj' longa maim, it was held that the possession might be handed over, if the land was pointed out from a neighbouring height, although the new possessor had not actually set foot on the land. (D. 41, 2, 18, 2.) The assumption is that the will of the previous possessor is the only hindrance to the change of pos- session, and when that obstacle is removed, the new possessor is as free to deal with the land as if he were actually walking on it. Such an assumption is justified by the ordinary experi- ence of life, and there is nothing in the transaction fairly to be called symbolical or fictitious. The change of possession is real and actual. Many of the difficulties that have surrounded the question of possession have arisen from treating occupation as an absolute quantity, while it is in reality a question of degree ; and the determination of the quantum of power over a thing that will sufiSce to give the occupier possessory rights is more or less arbitrary. Thus, to take a simple instance, I have mislaid a book, and on searching cannot find it. Have I lost possession ? For the moment I have not the power of dealing with it • but for so slight a temporary hindrance I could scarcely be deprived of my possessory remedy, if I should discover the" book in the hands of some one else. Something must turn upon the length of time that has elapsed since the book was lost, the place where it was last known to be, and the diligence of the searches PHYSICAL BASIS. 345 made for it. But there comes a point at which it must be held that the object is definitely lost, and its owner ceases to be possessor. The question of degree turns up in the case of land. I clearly occupy land upon which I stand, or which is in close proximity. To what extent upon the strength of my occupy- ing an acre may I claim possession over adjoining land? In a settled country, this question does not present any legal diffi- culty, because possession occurs in cases where the land has previously been in the possession of another. The limit of the occupation is thus defined by the boundaries within which the previoiis possessor actually occupied the land. (D. 41, 2, 3, 1.) Thus the occupation of a small portion of land will prima facie establish a possessory right over a large estate, or, it may be, over hundreds of square miles. That is strictly in conformity with the definition of occupation, if we assume, in accordance with the fact, that, on such a transfer of possession, the old possessor gives only that land over which he has exercised undisputed power. Very different was the nature of the act of certain Europeans, who, on the first discovery of the American continent, put up a flag on a few inches of soil, and, thereupon, supposing that they were acting upon a rule of law, took pos- session in the name of their sovereign of the whole continent. Such an extreme proceeding is a caricature of the Roman law, and is manifestly ridiculous ; but a real question remains, how far should the possession of such adventurers be admitted as good in law ? The answer would depend on the extent to which they had made good their footing, and had, in fact, the power of dealing with the land, — manifestly a question of degree. A similar question arises with regard to the discovery of veins or beds of minerals. To what extent is a possessor of a part of a lode the possessor of the lode itself? Very difficult ques- tions of that kind may arise. When a conflict exists, a line must be drawn, but to some extent it must be an arbitrary line. I. Acquisition of possession in the case of things not before owned {res nullius) or possessed. In such cases, to acquire possession is, at the same time, to acquire ownership. The examples are fully stated by Justinian and Gains. Therefore all you take [a wild beast, a bird, or a fish, the moment it is taken, becomes yours, and] is understood to be yours so long as you guard 346 POSSESSION. it and keep it in. But if it escapes your guard and regains its natural freedom it ceases to be yours, and becomes again the property of him that first seizes it. And its natural freedom is understood to be regained when it has either escaped from your sight, or, though it is still in view, is very hard to follow up. (J. 2, I, 12 ; G. 2, 67.) The question has been raised whether, if a wild beast be so wounded that it can be taken, it is to be understood at once to be yours. Some have decided that it is yours at once, and continues to be yours so long as you follow it up ; but that if you leave off following it up it ceases to be yours, and again becomes the property of him that first seizes it. Others think that it is yours only if you take it. And it is this latter opinion that we con- firm ; because many accidents often happen to hinder you from taking it. (J- 2, I, 13.) In the case of animals that habitually go away and come back again [pigeons, for instance, and bees, and hinds, that habitually go to the woods and come back again], the rule that is [handed down] approved is this, — that they are understood to be yours so long as they intend to return. For if they cease to intend to return they cease to be yours, and become the property of those that first seize them. And it is considered that they cease to intend to return when they cease from the habit of returning. (J. 2, I, 15; G. 2,68.) Bees, too, are by nature wild. Therefore those that settle on your tree, before you hive them, are no more yours than birds that build their nest there. And so if any one else hives them he will be their owner. And the combs too, if they have made any, may be taken away by any one. But, of course, while they are still untouched, if you see in time any one entering your lands, you can lawfully stop him from entering. A swarm, again, that has flown away from your hive, is understood to be yours so long as it is in view, and is not hard to follow up. Otherwise it becomes the property of him that first seizes it. (J. 2, i, 14.) Peacocks and pigeons also are wild by nature , and it does not matter that they are in the habit of flying away and flying back again — for bees too do the same ; and it is agreed that they are naturally wild. Deer, too, some people have so tame that they are in the habit of going to the woods and coming back again ; and yet that they are naturally wild no one denies. (J. 2, 1,15.) Fowls and geese are not wild by nature ; and that we can understand from the very fact that there are other kinds of fowls and geese e.xpressly called wild. And, therefore, if your geese or fowls are by an accident panic- struck and fly away ; even though they have escaped your view, wherever they may be, they are understood to be yours. And the man that, with an intention to make a gain of it, keeps those animals, is understood to be guilty of theft. (J. 2, i, 16.) Fish in the well of a boat are in possession, but fishes in ponds, where they re- tain their natural freedom, are not in possession. So wild animala in a park, retain- ing their natural liberty, are not in the possession of the owner of the park. (D 41 2, 3, 14.) ■ ' II. Transfer of Possession (Traditio). The modes of transferring possession are cited here, but DELIVERY OF POSSESSION. 347 must not be forgotten that in the later Roman law, such a transfer usually operated as a change of ownership. But in order to transfer ownership, possession must first be transferred, and it is convenient here to indicate the several ways in which this might be done. 1. The simplest case is where the possession arises from contact. A agrees to allow his friend B to take stones from his quarry. From the moment B severs the stones from the rock, he acquires possession, and thereby ownership. A cannot prevent B from carrying away the stoaes thus severed, because B is the owner of the stones. (D. 39, 6, 6.) 2. Deposit of a thing in a man's house gave him possession. (D. 23, 3, 9, 3 ; D. 47, 10, 5, 2.) It was not necessary that the occupier of the house, or any one in it, should actually have touched the object. (D. 41, 2, 18, 2.) Of course, the occupier of the house must have the intention of possessing. Here it is not necessary to suggest any symbolical or fictitious delivery. The occupier of a house has under his control whatever, to his knowledge, is in the house. This knowledge is necessary, for a man cannot be said to have control of a thing of the exist- ence of which lie is ignorant. The mere fact that a thing is in a man's house does not of itself show that he is possessor of it ; for if it is not within the man's knowledge, he can have no control over it. 3. Is the possessor of land, by that fact alone, also posses- sor of treasure that has been buried by another in the land? This question was resolved, though not without some differ- ence of opinion, in the negative, and it was held that the possessor of the land did not begin to possess the treasure until he had dug it up. (D. 10, 4, 15 ; D. 41, 2, 44, pr.) The reason is, that until the possessor of the land has dug out the treasure, he has not got it under his custody or control. Even if he knew that treasure was in the soil, and desired to be considered owner of it, yet, inasmuch as he had not the physi- cal power of actually dealing with the treasure until he had dug it out, he was not a possessor. (D. 41, 2, 3, 3.) 4. Delivery of the keys of a house. And, again, if a man sells valuables deposited in a warehouse, as soon as he delivers the keys of the warehouse to the buyer, he transfers the property in the valuables to the buyer. (J. 2, i, 45.) The delivery of keys operated as a transfer of possession, not as a symbol of dominion, but because it gave the buyer the means of obtaining the custody of 348 POSSESSION. the goods, and at the same time deprived the vendor of any power of further dealing with them. (D. 41, 1, 9, 6 ; I). 41, 2, 1, 21.) The delivery of keys had no other effect. (D. 18, 1, 74.) 5. Delivery longa manu. Without any actual contact, a person acquired possession if the object were placed in his presence, with the intention that he should have possession. (D. 41, 2, 1, 21.) It is assumed that there is no obstacle to his power over the object except the will of the previous possessor, and that is removed. A owes a sum of money, which, at B's request, he places before B, with the inten- tion of transferring the possession. B immediately, before taking it, possesses the money. (D. 46, 3, 79.) A sells an estate of land, and showing it to B from a neighbouring height, declares that he delivers free and undisturbed possession. This is a delivery of the land to B. (D. 41, 2, 18, 2.) 6. Branding, or putting marks on an object. By putting marks upon logs of wood, the possession was transferred (D. 18, 6, 14, 1); but the same result was not admitted if wine jars were marked. (D. 18, 6, 1, 2.) Putting marks is not a symbolical transfer, but proof of an actual transfer. Logs of wood could not be transferred by the hands of the vendor into the hands of the buyer ; the only mode of transfer in such large objects was delivery longa manu. Upon such delivery it was usual for the purchaser to put his mark on the wood, and such marks were, therefore, evidence of the transfer. But it was not usual to put marks ou wine jars, and, therefore, the presence of marks did not create any presumption of fact that the possession had been transferred. An allegation in writing that a transfer had been effected was not conclusive. A makes a gift of land with slaves thereon to B, and declares in writing that he has delivered possession. In point of fact he had not. This does not transfer the pos- session to B. But if B received one of the slaves included in the gift, and forthwith sent him to the lands, B acquired possession of the lands through the slave. (D. 41, 2, 48.) B. The Intention {Animus) requisite for Possession. Mere occupation is not possession. To constitute possession, besides the ability freely to deal with a subject, there must be an intention to exclude all other persons. In the Roman law, even this was not enough ; the intention must be to hold in ownership, and not for any interest iu things falling short of ownership. A man holding as a tenant for years was not a possessor. RESTRAINTS ON ACQUISITION. 349 A person may occupy without any intention to possess. Thus, a guest admitted to one's house or to one's farm, has no possession ; for he has no intention of excluding the owner. (D. 41, 2, 41.) Usually the intention to possess coincided, in point of time, with the occupation, as in the ordinary case of delivery ; but that was not essential, and the occupation might begin with a different intention. Sometimes, too, without delivery, the bare wish of the owner is enough to transfer the property ; as when a man lends it, or lets it out to you, or deposits it with you, and then sells it or gives it to you. For although it was not on that ground that he dehvered it to you, yet by the very fact that he suffers it to become yours the property in it is at once acquired by you, just as if it had been dehvered on that account. (J. 2, i, 44.) This was called delivery bi-evi marm. Kestraints on Acquisition of Possession. A. In respect of Things. As a rule what could not be the object of ownership could not be the object of possession. Thus res puhlicce (D. 41, 2, 30, 3), and res divini juris could not be possessed. (D. 41, 2, 30, L) A free born man could not be the subject of possession, even although possession was said to be a res facti. (D. 41, 2, 23, 2.) But the restrictions on ownership that sprung from the jus civile did not apply to possession ; thus land out of Italy could not be held in dominio ex jure Qniritium, but it could be possessed. (Theoph. ad Inst. 2, ], 40.) Whatever could be an object of property, according to the jus gentium, could be an object of possession. B. In respect of Persons. What has been said of things is true of persons. Those who cannot acquire as owners cannot acquii'e as possessors. Thus slaves and persons in potestate are subject to the same disabilities in respect of possession as of ownership. Madmen (furiosi) cannot acquire possession, owing to mental incapacity (D. 41, 2, 1, 3), but for the same reason they cannot Jose possession, except by loss of occupation, as they are incapable of disclaiming possession. (D. 41, 2, 27«) Pupilli could not acquire possession without the auctoi-itas of their tutors, unless they were old enough to understand the nature of the transaction. (D. 41, 2, 32, 2.) Again, jm-idical persons (such as corporations, or a 350 POSSESSION. hereditas jacem) could not acquire possession, because they had not any animus; but for convenience they were allowed to acquire possession by their agents. (D. 41, 2, 1, H ; D. 41, 2, 2.) But restrictions on ownership peculiar to the jus civile did not affect possession. Peregrini could acquire possession, although, unless they had commercium, they could not acquire property by the investitive facts belonging to the jus civile. Again, by law gifts from husband to wife were invalid, yet property delivered to a wife as a gift by her husband was in her legal possession. (D. 41, 2, 1, 4.) Loss OF Possession. Both occupation and intention are necessary to constitute possession ; it follows, therefore, that if either occupation or intention ceases, the possession is destroyed. Some texts appear to deny this inference, and in a constitution of Diocle- tian and Maximian (a.D. 290) it is broadly stated that although animus alone does not suffice to create possession, yet animus alone is sufficient to keep it, once it is acquired. (C. 7, 32, 4.) But the example there given shows that such is not its true meaning. The case is put of a man who leaves his land uncultivated through fear. Time passes away, and from the same motive he does not return ; still he has not lost possession. But this case proves no more than that the law presumes in favour of the continuance of a possession once begun, and that when no hostile occupant has entered on a deserted farm, the presumption of abandonment of possession, arising from neglect, is rebutted by proof that the occupier was deterred by fear, and had no intention of giving up possession. A. Loss of Possession {Corpore.) Two cases must be considered. Either the loss of occupation by the possessor is followed by the occupation of some one else, or it is not. L Loss of occupation : — The object not being occupied by anyone else. One continues to possess an object so long as one either has the custody of it, or is in a position to renew the custody at will (D. 41, 2, 3, 13), and so, in the case of a farm, so long aS there is no hostile occupant, the possessor, who has been LOSS {COHPOX'E). 351 merely neglectful, may at any moment renew his occupation. If there is no physical obstruction in dealing with land, and no opposition from the will of a hostile occupier, there is no difficulty in presuming a continuance of the possession, un- less there is proof of an intention to give it up. (D. 43, 16, 1, 25.) Cattle stray beyond the limits of their pasture and cannot be found. The pos- session is lost, even although they do not fall into anybody's possession. (D. 41, 2, 3, 13.) A buries money for the purpose of concealment, on the occasion of his being obliged to leave his home, in a field belonging to B. After some time he returns, but is unable to remember the exact spot where his buried treasure lies. Papinian decided that the possession was not lost by A nor acquired by B. He said mere defect of recollection of the exact spot where a thing was deposited ought not to destroy possession, unless some one else finds the treasure. (D. 41, 2, 44, pr.) A has lost a gold chain ; he is unable to recollect whether in his own grounds or elsewhere. Ahaslost possession. (D. 41, 2,25, pr.) The distinction between this case and the former seems to be, that in the former the owner was considered as knowing the place where he concealed his money, but owing to forgetf ulness, which might at any moment be removed, he was unable to point out the exact spot. There existed the hope that at any moment he might recover his recollection. But in this case, A had no clue to the place where he lost his chain, and, so far as it depended on his recollection, lie would never recover it. Summer or winter pastures are left unoccupied during the respective parts of the year when they are not used. The absence of such use creates not even a slight presumption that the possessor intends to give up possession. The pastures continue to be in the occupation of the possessor. (D. 41, 2, 3, 11 ; D. 43, 16, 1, 25.) II. Loss of occupation — object occupied by hostile possessor. Possession was lost when the thing was occupied by any one with the intention of excluding the possessor. When a moveable was stolen, possession was lost by the possessor and acquired by the thief. (D. 41, 2, 15.) A person bound hand and foot by trespassers on his own laud, was held to be ejected, i.e., to have lost possession. {D. 43, 16, 1, 47.) Titius has gone from home leaving no one in charge of his house. During his absence Gains enters, and on the return of Titius prevents him entering by threats of violence. Titius loses possession. (D. 43, 16, 1, 24.) But at what time is pos- session lost, when Gains enters or Titius returns ? Labeo and the older jurists said it was when Gains entered, who consequently was said to have possession like a thief {clandestina possessio). Apparently this was the case provided for by the interdict de clandestina possessione. (D. 10, 3, 7, 5.) But the necessity for that interdict disappeared, when it was held that possession was not lost, in the case stated, when Gains entered, but only when Titius came to know that he had entered, or rather was repelled by force on attempting to turn him out, or from fear did not try to recovor the occupation. (D. 41, 2, 18, 3; D. 41, 2, 25, 2; D. 41, 2, 3, 7-8; D. 41, 2, 46; D. 43, 16, 5 ; D. 4, 2, 9, pr.) 352 POSSESSION. B. Loss of Possession, animo. Usually an intention to give np possession was accompanied by the transfer of the occupation, as in traditio by a vendor to a buyer. But the question of animus became very important, when it was doubtful whether the occupation continued. ^ Thus to leave a farm uncultivated, with no one in charge, did not necessarily destroy the owner's possession, so long as no hostile occupant entered ; but, if the neglect was prolonged, the pre- sumption arose that the owner intended to give up possession. (D. 41, 3, 37, 1.) A person might lose possession by change of animus alone, while keeping the occupation. Thus, if a man resolves no longer to hold a thing as owner, he ceases to be possessor ; but while he occupies it, no one else can acquire possession. (D. 41, 2, 3, 6.) Or, a man may resolve to hold not for himself, but on behalf of another, and thereby that other at once becomes possessor. (D. 41, 2, 18, pr.) This has been called by modern writers constitutum possessorium, and is the converse of delivery brevi inanu. Seia made a gift of a farm to her step-daughter by letter, and stated that she would continue to occupy the farm as a tenant, paying a yearly rent. This was held to., amount to a transfer of the possession, and therefore of the ownership, to the step- daughter ; because Seia ceased voluntarily to be a possessor, and accepted the place of a mere occupier. (D. 6, 1, 77.) Acquisition of Possession by Agents. A. By persons not in the power of the possessor. A man acquired and retained possession, if he had the inten- tion to exercise rights of ownership in respect of the subject matter, although he did not himself occupy the thing, provided the occupier held on his behalf.^ A acquires possession of a moveable or immoveable, if the moveable or immoveable is occupied by B ; if B and A both intend that A shall be the possessor, and B acts under the authority of A. (D. 41, 3, 41 ; G. 7, 32, 1.) If that authority was given before B entered into occupation, from the moment of B's entry A became possessor, even before he learned the fact of B's entry. (D. 41, 1, 13, pr.) If, however, B has not the Animo utique nostra, corpore vel nostra vcl alieno. (Paul. Sent. 5, 2, 1. ACQUISITION BY SLAVES. 353 authority of A to enter, yet, if he holds for A, and A afterwards ratifies his act, from the moment of such ratification, A is possessor. (D. 41, 2, 42, 1.) B. By slaves and persons in potestate. A slave, equally -with a freeman, could occupy property with the intention of excluding all the world, and therefore, but for his disability to sue in court, he was truly a pos- sessor. In the same way a slave might unite all the elements forming a legal contract, but he could not sue. He could have naturalis possessio and make a naturalis ohligatio. It will appear, hereafter, to what extent a master could enforce con- tracts made by the slave ; at present we must inquire to what extent a master could treat his slave's naturalis possessio as a ground for invoking on his own behalf the possessory in- terdicts. Two cases may be conceived in which this may occur ; for either the slave acts under the orders of his master, or without his authority or knowledge. In the first case, a slave acting under the orders of his master, acquires possession for his master, subject to precisely the same conditions as apply to acquisition by a free agent. Thus, when a master ordered his slave to take possession of an object, and the slave occupied it with the intention that it should be acquired for Titius and not for his master, it was held that the master did not acquire the possession. (D. 41, 2, 1, 19.) The next case is where the slave acquires the naturalis possessio of an object, without the authority or knowledge of the master. Whatever a slave obtained lawfully as part of his peculium was possessed by his master ; but what he obtained wrongfully or by violence was not in the possession of his master. (D. 41, 2, 24.) This rule, we are told by Papinian, was based upon expediency {utilitatis causa jure singulari recep- tum) inasmuch as it would have been highly inconvenient to require the master's knowledge or authority in respect of every item composing the peculium. (D. 41, 2, 44, 1.) Moreover, according to Paul, express assent to each acquisition was un- necessary, inasmuch as by allowing a slave to have a peculium, the master gave the slave a general authority to acquire what- ever he lawfully could (quia nostra voluntate intelligantur pos- sidere, qui eis peculium habere permiserimus). (D. 41, 2, 1, 5.) The distinction between a slave and a free agent was that, in Z 354 POSSESSION. the case of a slave, a general authority to acquire was sufficient to vest the possession of any object in the master when the slave had naturalis possessio ; but in the case of free agents, there must be a distinct mandate for each acquisition, or else a subsequent ratification. With regard to slaves held in common (D. 41, 2, 42, pr. ; D. 41, 2, 1, 7) ; slaves held in usufruct (D. 41, 2, 1, 8) ; and slaves not owned but possessed bona Jide (D, 41, 2, 1, 6), a master can acquire possession to the extent only that he can acquire rights by their contracts. A slave, if not in the possession of his own master, can acquire for others by their express authority. (D. 41, 2, 34, 2.) Those who are in paternal power can hold peculium, but cannot possess on their own behalf. In respect, however, of things comprised in peculium eastrense and quasi-castrense, sons could have possession, just as they could be owners. The disability to possess, coincides with the disability to be owners. When a son acquired anything as part of his peculium, the possession was vested in his father, even although the son was actually kept by another as a slave, and the father did not know he had the potestas. (D. 41, 2, 4.) On the other hand, if a man, under a mistake, thinks a certain person is in his power, when he is not, he cannot acquire either possession or ownership through him. (D. 41, 2, 50, pr.) Subject to these qualifications, the rules applicable to slaves, equally apply to persons under potestas. Loss OP Possession by Agents. A. By persons not in the power of a possessor. J.ust as in the case of a principal, so in that of an agent, possession may be lost (a) corpore, or (b) animo. But the relation of principal and agent introduces some complications, and a principal does not lose possession in all cases, by the act or default of his agent, although such act or default, if his own,, would undoubtedly cause him to lose possession. The first case to be considered is where the agent ceases to be occupier. I. Loss by the agent, corpore. Here three cases require to be considered. (1.) The agent may be ejected by a third party, in which LOSS BY AGENTS. 355 case it is obvious that a hostile occupation and possession at once arise, and the principal loses possession in the same way as if he had been personally evicted. (D. 43, 16, 1, 22). Manifestly in this case, the possession is lost to the princi- pal, even before a knowledge of the ejectment is brought to him. (2.) The agent may die. In this case it was held that the principal did not lose possession, until an adverse claimant entered into occupation, or the death of the agent was brought to the knowledge of the principal, and he neglected to take possession by himself or some other agent. (D. 41, 2, 40, 1). (3.) If the agent voluntarily abandons the property, it may happen that no one enters. In this case, the text above cited (D. 41, 2, 40, 1), if aliud existimandum ait be the correct reading, would be an authority to show that possession was lost. But some of the MSS. read idem for aliud. Even if aliud be the correct reading, the law would appear to be altered by Justinian's constitution (C. 7, 32, 12) ; and accordingly in the later law, possession was not lost. Even if a third party entered with the connivance of the agent, according to the same constitution the principal did not lose possession, until be bad knowledge of the fact, and neglected to assert his claim to possession. (D. 41, 2, 25, 1.) 2. Loss by the agent, animo. Could possession be lost if the occupier, without ceasing to occupy, resolved no longer to hold for the possessoi-, but to hold for himself? Undoubtedly an occupier who thus tried to make his occupation a means of fraud would be a mala fide possessor, but would he not be a possessor? Would he not unite actual occupation with the intention to hold as owner, and are not these the only elements of possession ? Such reasoning is unassailable ; and if we regard possession as a mere anomalous separation of rights from investitive facts, there seems no reason why the argument should not have been given effect to. But if we admit that possession meant really equit- able ownership, it would be highly inconvenient to allow a mere occupier by an act of fraud to make himself possessor, and entitle himself to the protection of the Interdicts. If that had been allowed, it would have been a serious drawback to a system of equitable rights for aliens. We find, as might be supposed, that this danger was guarded against, and in a very simple way. It was laid down that no one having been ad- 35^ POSSESSION. mitted as an occupier could by a mere act of will convert him- self into a possessor ; and that no one admitted to possession in a given capacity could of his own volition change that capacity. ' A ring is left in deposit with a jeweller. He resolves to deny the deposit, with the intention of fraudulently appropriating it to himself. He still continues a mere occupier, not u, possessor ; but if he removed it from the shop where it was left, he became at once possessor and a thief. Kemoviug the ring from its place of custody is a contrectatio, and contrectatio was a change in the corpus as well as in the animus. The possessor lost possession, but had an actio furti. (D. 41, 2, 3, 18.) A tenant of a farm hearing of the death of his landlord, and that no heir was likely to be found, resolved to keep the farm for himself. He is not a possessor, and hence, although in this case anciently his mala fides was no bar to usucapio (p. ), he did not become owner by usucapio. (D. il, 5, 2, 1.) The ovmer of a farm sold it, and gave an order to the buyer to take possession. The tenant of the farm refused to allow the buyer to enter. The tenant was sub- sequently ejected by violence by a third person. The tenant could bring the interdict Unde vi against that person, and in turn, was liable to the same interdict at the instance of his landlord. (D. 43, 16, 12.) The distinction between this and the former case is, that the tenant's refusing admission to the buyer was a refusal to admit his landlord. By such a refusal the landlord was deprived of his land corpore as well as aniino. The landlord could therefore bring the interdict against his tenant, who thus made himself a possessor, although as against his landlord his possessio was vitiosa. But his possession was not invalid as against the person who evicted him. Suppose it was the vendor that ejected the tenant by force. In this case, as before, the tenant is liable to the landlord, but the buyer is likewise liable to an interdict Unde ^*^ at the instance of the tenant. Even if the buyer, in ejecting the tenant, had acted at the request of the landlord, it was no defence, for an order to do an illegal act is not valid. (D. 43, 16, 18, pr.) A tenant, without the knowledge of his landlord, lets to a sub-tenant. The landlord retains possession through his sub-tenant, as his agent. (D. 41, 2, 25, 1 . ) A tenant buys the farm he occupies from a person he believes to be heir to his landlord. He at once becomes possessor, even if that person proves not to be heir. (D. 41, 3, 33, 1.) B. By slaves and persons m potestate. 1. Loss corpore. By a slave or person in potestate, possession was lost corpore, when it would have been lost in the hands of a free agent. 2. Loss animo. In this case, there was a difference between a slave and a free agent. A free agent, while retaining physical occupation, cannot, by a mere act of will, decide to hold for himself or another and thereby destroy the possession of his principal. But if the agent ejects the principal in the case of land, or actually ' Nemo sibi ipse causam possessionis mutare potest. (D. 41, 2, 19, 1.) INTERDICTS. 357 deals with a moveable in such a mannev as to involve a con- trectatio rei, and thereby a change in the holding (corpore), the agent becomes a possessor wrongfully, but still a possessor. In the case of a slave, however, the possession was not lost by any such dealing with the object, if, as a fact, the thing con- tinued in his custody or power. The rule applied that the possession of the slave is the possession of the master. A slave stole property from his master. So long as the slave did not actually part with the property, it remained in the possession of the master. (D. 41, 2, 15.) A slave runs away from his master with the intention of never returning. He is still in the possession of his master (D. 41, 2, 13, pr. ; D. 41, 2, 15), unless he is possessed by another. (D. 41, 2, 50, 1.) Ulpian explains this decision by saying that a slave cannot be allowed to take away his master's possession. A farm was given to a master in mortgage, and his own slave by violence ejected the master. Nevertheless, the possession of the slave was the possession of the master, and the master retained legal possession. (D. 41, 2, 40, pr.) Remedies. 1. Remedies in respect of rights of possession of immoveables. The interdicts Unde vi and quod vi aut clam, were the ancient remedies for a pos- sessor. In later times, however, it would appear that an alternative procedure by means of actions was allowed. The interdicts seem, indeed, to have been pushed aside by possessory condictiones. Thus we are told there was a possessory condictio for the recovery of land analogous to the condictio furtiva for stolen goods. (D. 47, 2, 25, 1.) Again, it is said that an owner could bring a condictio to recover his ownership, a possessor to get back his possession. (D. 13, 3, 2.) The distinction between interdictum .and condictio consisted entirely in the forms of procedure (see Book IV., Proceedings in Jure); and after the changes made by Diocletian, there was no distinction whatever except in words. 2. The remedies in respect of the investitive fact of posses- sion were the interdicts Uti possidetis and Vtruhi. These inter- dicts could be used only for protecting possession, not for acquiring it."^ The interdicts that are the means of retaining possessions are Uti possidetis and Utrubi. These are granted when two parties are at variance in regard to the ownership of some property ; and the prior question is raised, which ' The formula of t-'ityossideiis given by Festus is: " Uti nunc possidetis eum fundum, quo de agitur, quod nee vi nee clam nee preeario alter ab altera possidetis, ita possideatis adversiis ea vim fieri veto." In the Digest it is given thus : — Prcetor ait ; " Uti eas aedes, quihus de agitur, nee vi nee clam nee preeario alter ab altero possidetis, quominus ita possideatis, vim. fieri veto. " De eloaeis hoe interdictum nan dabo. " Neque pluris quam quanti res erit ; intra annum, quo primum experlundi potestas fuent agere permittam." (D. 43, 17, 1, pr. ) The interdict Utrubi is mentioned in D. 43, 31, 1, pr. Praetor ait: " Utrubi hie homo, quo de agitur, majore parte hujusee anni fuit, quo minus is eum ducat, vim fieri veto," 35^ POSSESSION. of the two is to go to law as possessor, and which as claimant ? [To decide this question the Uti Possidetis and Utrubi have been introduced.] (J. 4, 15,4; G. 4, 148.) If lands and houses are at stake, the interdict Uti possidetis is employed; if the possession of moveables, the interdict Utrubi. (J. 4, I5)4A; G. 4, i49-) Now the force and effect of these two interdicts was among the ancients widely different. In the case of the interdict Uti possidetis, he that was in possession at the time of the interdict prevailed, if only he had not obtained possession from his opponent by force (wz), by stealth {clam), or by leave [precario). A third party, however, he might have driven out by force, or from him he might have stealthily snatched the possession, or he might have begged leave to become possessor. But in the case of the interdict Utrubi, he that was in possession during the greater part of that year pre- vailed, if only he was in possession as against his opponent neither by force, nor by stealth, nor by leave. [And this is sufficiently shown by the very words of the interdicts.] (J. 4, 15, 4A ; G. 4, 150.) The year, too, is reckoned backwards. And so, if you, for instance, were in possession for eight months before me, and I for the seven later months, I shall be preferred, for possession during the first three months will not help you in this Interdict ; it belongs to the previous year. (G. 4, 152.) At the present day, however, the usage is different. For the effect of both interdicts, as far as regards possession, has been made just the same. So then, whether the object in dispute is landed property or a moveable, he prevails that at the time of the law-suit holds the property in his possession, if only he has not got possession from his opponent b>- force, by stealth, or by leave. (J. 4, 15, 4A.) Now under the interdict Utrubi, a man profits not only by his own posses- sion, but by another's, if fairly reckoned as accessory ; by the former possession, for instance, of a man whose heir he is, or from whom he has bought the thing, or received it as a gift or by way of dowry. If, therefore, the lawful possession of another, when joined to our possessions, overtops the opponent's possession, then under that interdict we prevail. But if a man has no posses- sion of his own, no time beyond is given or can be given as accessory thereto. For to what is itself nothing there can be no accession. If, then, a man's possession is tainted — that is, acquired from his opponent by force, by stealth or by leave — no accession is given. For his own possession profits him nothing. (G. 4, 151.) Possession is held to include not merely personal possession, but posses- sion by another in our name ; and this even though that other is not subject to our power, as when he is a tenant or a lodger. We may possess, too, by means of others with whom we have deposited anything, or to whom we have lent it. This is the meaning of the common saying, that we can keep possession by means of any one that is in possession in our name. Moreover, it is decided that possession may be kept by intention as well : that is, that although we are not in possession, either personally or by means of others acting in our name, yet if we had no intention to abandon possession, but went away with a view to returning, we still keep possession. Possession may be gained, too, by means of others, as we have set forth in the Second Book. But there is no doubt that it cannot be gained by a bare intention only.- (J. 4, 15, 5 ; G. 4, 15,3.) GENERAL MAXIMS. 359 The third division of interdicts is this : — They are either simple or double. They are simple when one party is plaintiff and the other defen- dant, as in all interdicts for restitution or production. For the plaintiff is he that desires restitution or production ; the defendant is he from whom such restitution or production is desired. Of interdicts of prohibition, again, some are simple, others double. When, for instance, the Pra;tor forbids anything to be done in a sacred place, or on a public river or its bank, the interdicts are simple ; for the plaintiff is he that desires that nothing be done, the defendant he that tries to do it. Of double interdicts, again, Uii possidetis and Utrubi are examples. They are called double because both parties to the suit stand on the same footing, neither being specially defen- dant or plaintiff, but each sustaining both parts ahke. (J. 4, 15, 7; G. 4, 156-160.) The Prsetor certainly speaks with both in words to the same effect, for the final form in which these interdicts are framed is this ; — " As you now possess, I forbid any violence to be done to hinder you from so possessing" (Uti nunc possidetis, qit07nintis ita possideatis vim fieri veto) ; and again of the other interdict, — " Wherever and with whom this slave in dispute has been during the greater part of this year, I forbid any violence to be done to hinder him from leading him away" {Utrubi hie homo de quo agitiir, parte majore hujus anni fuit^ quominus is eum ducat, vim fieri veto). (0,4, l6o-) Explanation of some General Maxims. Nihil commune habet proprietas eum possessione. (D. 41, 2, 12, 1.) Nee possessio et proprietas misceri dehent. (D. 41, 2, 52, pr.) Possession stands in the Roman Law, alongside ownership, in parallel but independent lines. If there was a doubt whether the person claiming to be owner was not also the possessor, the question must be raised by an independent possessory suit, and the suit must proceed to its termination without raising or deciding any right of ownership. (D. 41, 2, 35.) It -was thus incompetent to allege, by way of defence to a possessory action, that the defendant was the true owner ; and only, if worsted in that contest, could the defendant bring, as plaintiff, an action to recover the property from the person determined to be possessor. It was even doubted whether a true owner, having once begun an action to recover the pro- perty, could drop the action, and proceed by the Interdict Uti possidetis to recover the possession. Inasmuch as a petitory action could be brought only against a possessor, it was argued that the bringing of such an action was an implied admission that the defendant was possessor; but Ulpian says (D. 41, 2, 12, 1) that the correct view was that these were alternative modes of proceeding, and there was nothing to hinder a person after be- 360 POSSESSION. ginning a petitory action, to drop it and sue for possession. This peculiarity, the self-contained completeness of possessory suits, is retained by those systems of continental law that have been borrowed from the Roman law. There is no conceivable advantage in the duplication of suits that have in substance the same object, and the English law permits a defendant in possession, even wrongfully, to plead that he has a good title to the property, thus disposing in one action of questions, which in the Roman Law would have required first a suit for posses- sion, and afterwards a vindication. As a matter of fact, however, it was usual in the Roman law to attain the same end by introducing the question of owner- ship on a suit for possession. "In wagers under interdicts, although there is no question of ownership, but only of posses- sion, still we ought to show not merely that we have had possession, but that what we have possessed is our own." ^ Adversus extraneos vitiosa possessio prodesse solet. (D. 41, 2, 53.) In the statement given above an important element of pos- session has, in order to avoid confusion, been omitted. It has been stated that a possessor is entitled to the protection of in- terdicts. That proposition is too wide. An injusta or vitiosa possessio is not protected, except against extranei. A person who has obtained that which immediately before was in the possession of another vi, clam, or precano, is not en- titled to protection as against that person. As against that person the possession is said to be vitiosa. But against all other persons (extranei) he is entitled to retain the possession. Thus if A is in possession of a farm, and B against his will {vi), or without his consent {clam) (p. 252) obtains possession, B will be defeated in a possessory suit at the instance of A. But if C, D, or E were to bring a possessory suit, B would succeed in retain- ing possession. Again, if A had let this land to B on the terms of a precarium, and B refused to give up possession, and were ejected by A, B could not succeed in a promissory suit against A, inasmuch as B held from A precano. From this it follows that possession cannot have a legal com- mencement unless with the consent of the previous possessor, ^ In sponsioniius, quae ex interdictis fiunt, etiam^i non propi-ietaiis est quacstio scd tanturn possessionis, tamen non solum, pos^edissc, aul etiam nost^,-uin possedisse doceri (Icheat. (Quint. Inst. Orat. 7, 5.) GENERAL MAXIMS. 36 1 or in cases where the possession is vacant, as, by the abandon- ment of the possession or death of the possessor. It is convenient to speak of mere possession as obtaining the protection of law, without incessantly repeating this im- portant qualification ; but it must be kept in mind that the Roman law did not protect a man's possession, unless that had a lawful commencement, except against those persons who had no right to complain. _ Incertam partem possidere nemo potest. (D. 41, 2, 3, 2.) A person cannot have possession of an indefinite or undeter- mined portion of a thing, as if I deliver to you, whatever may be my share of the land, or I wish to possess whatever Titius possessed, not knowing what that was. (D. 41, 3, 32, 2.) But this does not prevent two or more persons from possessing together, in definite shares, any given object. (D. 41, 2, 26.) Ignoranti possessio nan adquiritur. This maxim has been considered in relation to acquisition by slaves. Here it is important merely to avoid a misconstruction. The meaning of the maxim is that a person cannot without his consent, and therefore not without his knowledge, obtain pos- session of a thing by means of an agent. Of course, if the possessor himself obtains possession, he has necessarily a know- ledge of the fact. This is all that is meant. It does not mean that possession is not acquired through an authorised agent, until the fact of the possession is brought to the knowledge of the principal. Plures eandem rem in solidum possidere non possunt. (D. 41, 2, 3, 5.) Two persons may unite, as against all others, to share the possession of a given object ; but two persons, claiming against each other, cannot both be possessors of the same thing. This follows from the nature of possession, namely, the occupation of a given object with the intention of excluding all the world from the use and enjoyment of it. Hence, where a previous possession continues, it follows that no new possession can have commenced ; and, conversely, where a new possession is ad- mitted, the previous possession must be held to have ceased. An exception to this rule exists in the case of precarium. Pomponius says (D. 43, 26, 15, 4) that both the landlord and the tenant iu the case of precarium possess the subject of the 362 HISTORY OF POSSESSION. tenancy. As appears hereafter, a tenant at will {precario) was originally possessor, in the sense of being able to hold adversely to his landlord as well as to the world at large. But when a legal remedy was given to the landlord to enable him- to evict the tenant, an illogical but convenient compromise was effected. The tenant was left with possessory rights against the world at large, although no longer able to hold against his landlord, and the landlord was invested with a possessory right, so as to be able to recover the property from third persons. Nemo sibi ipse causam possessionis mutare potest. (D. 41, 2, 19, 1.) Gaius 2, 52-61 (p. 269) explains a peculiar case of acquisition by usucapio by a mala fide possessor. A person possessing pro herede acquired the inheritance in one year, although he knew he was not heir. By the above rule a possessor of property belonging to the inheritance in the capacity of owner or buyer or depositee or tenant, could not, by resolving to possess in future in the character of lieres, obtain the benefit of the short and dishonest prescription. (D. 41, 3, 33, 1.) The rule also prevented a tenant of a farm, resolving on the death of his landlord, to be no longer an occupier, but to possess pro herede, from getting the benefit of the prescription. A man cannot change the character in which he occupies or possesses, so as to obtain ownership by usucapio. (D. 41, 5, 2, 1.) If, however, such a person left possession and subsequently re-entered on a new title, this rule did not apply. (D. 41, 2, 19, 1.) After the constitution of Hadrian, mentioned by Gaius, abrogating this ancient species of dishonest usucapio, the rule ceased to be of any importai>ce, and is rarely mentioned in the Digest. TBE HISTORY OF POSSESSION. Adverse Possession. — A broad distinction was drawn by the Roman jurists between possession and ownership. Ulpiau says the interdict uti possidetis was introduced because there ought to be a distinction ; for it may happen, as he says, that a possessor may not be owner, or an owner may not be pos- sessor, or that the owner may be possessor. (D. 43, 17, 1, 2.) As applied to ownership, the distinction taken by Ulpian may be expressed thus :— A possessor that is not at the same time owner, is a person that exercises the rights of ownership, although not invested with ownership by any investitive or transvestitive fact (for the sake of brevity, say simply any ANALYSIS OF " ADVERSE POSSESSION." 363 investitive fact). An owner that is not at the same time a possessor, is a person invested with ownership by some in- vestitive fact, although he does not exercise any of the rights of ownership. In short, there is a separation between two things that, in contemplation of law, must go together — the exercise of a right and its investitive fact. The person in- vested does not exercise his rights, and the person exercising the rights is not invested with the ownership. So expressed, the idea of possession is perfectly simple. Whether the person (not invested), but still exercising the rights of ownership, thinks or does not think himself owner, is at present beside the question. He is a possessor, and not an owner, if there really be (whatever he may think) no investitive fact in his favour. What attitude ought the law to adopt towards a mere pos- sessor? The answer to this must differ according as we consider the relation of the possessor to the owner, and to persons other than the owner. Manifestly as against the owner a possessor can have no right to the thing in his pos- session. The law specifies certain investitive facts as the condition of ownership. If then it were to treat as owner a person that had not acquired the ownership by any investitive fact, and to refuse to regard as owner the person that had acquired ownership by an investitive fact, it would stultify itself. But as against a person that is not owner, a possessor stands in a very different position. If A enters on land pos- sessed by B, and neither A nor B asserts that the land belongs to him by any investitive fact, there is nothing unreasonable in saying that B should be protected in his possession against A. To use the expression of Paul, as between A and B, B has the better right to the possession. (D. 43, 17, 2.) In a con- troversy between them, it is immaterial that B does not claim to have any right of property founded on any investitive fact ; for A is in the same position. To a modern jurist, adverse possession — the temporary and abnormal separation of the enjoyment of property from the title to it — is the only possession with which he is concerned ; and he, therefore, comes to the consideration of Eoman law with the unsuspecting conviction that it was for the benefit ot adverse possessors that the Possessory Interdicts were intro- duced. What is true of modern writers is to a very large extent, if not equally, true of the Roman jurists in the classical period of Roman law. Paul or Papinian had probably no occa- 364 HISTORY OF POSSESSION. sion to invoke the aid of Interdicts except for adverse pos- sessors, or for owners who preferred to use the possessory remedy instead of proceeding on their title. If there had never been anything more than this, it would be indeed im- possible to understand the crotchets or reconcile the incon- sistencies of the Roman law of Possession. Inconsistency and arbitrariness, however, generally point, in the Roman law, to a historical explanation. It is the fate of many rules and institutions to have a reasonable commence- ment and a useful career, but long to survive their usefulness. It is the fate of other institutions to be introduced for a distinct object, and when that object ceases to exist, to be utilised for analogous but not identical purposes. In the case of posses- sion, all the pecuharities of the Roman law admit of a satis- factory explanation, if we start with the hypothesis that Interdict possession was not created for adverse possessors, but for a wholly different class of persons. The only case that a modern jurist has to consider is the case of a man who holds innocently against all the world, but wrongfully as against the true owner. But the case for which Interdict possession was brought in was where a man held innocently as against all the world, and wrongfully as against nobody. Interdict possession was introduced for the purpose of securing the enjoyment of property, in cases where by the civil law no title to property could be recognised. Just as the Prsetor widened and enlarged the law of Contract, just as he expanded the law of Inheritance and bestowed new powers of Testation, so, in the view I take, did he broaden the law of Property ; and the in- strument he employed was Interdict possession. Possession was thus not an end in itself; it was a means to an end ; and the mode in which it was used cannot correctly be understood unless with reference to the object for which it was intended. In Rome, owing to the form of civil procedure, questions of possession always took precedence of questions of ownership. (G. 2, 148, p. 358.) The most ancient civil action in Rome was the sacranientum. The dramatic and interesting features of that proceeding are set forth under the Law of Procedure. After the dramatic incidents closed, and before the case could go for trial, the Prsetor was called upon to decide a preliminary question of high importance. The proceedings involved the affectation, that there was neither a plaintiff nor a defendant before the court, but only two people quarrelling. The first ACTIO SACRAMENTI. 365 step, therefore, incumbent on the Prsetor was to decide which should be plaintiff and which defendant. This question could not be determined in an arbitrary manner, first, because the burden of proof rested on the plaintiff, and in many cases this was tantamount to a victory for the defendant ; and secondly, it was necessary to provide for the custody of the property pending the suit. These circumstances pointed to the fairness of giving the advantageous position of defendant to the pos- sessor — the man actually in possession when the controversy arose.-"^ A common case that would occur would be this : A has occupied a farm for a considerable time. B appears on the scene claiming it as his property and ejects A. A commences an actio sacramenti before the Prtetor. To which of them ought the Praetor to give the position of defendant 1 Prima facie to B, for he is found in occupation when the legal proceedings commence. But it is an elementary maxim that a man ought not to be allowed to obtain a benefit to the prejudice of another by his own wrong, and it would be an encouragement to law- lessness to give any advantage to B. We may assume, there- fore, that A would be made defendant and restored to the occupation until B proved his title. In the technical language of the law, B's possession was injusta or vitiosa, and therefore undeserving of support. Nor would the position of B be much improved if instead of ejecting A by force, he waited an oppor- tunity when A was from home to take possession of A's land. Thus it was inevitable that the notion of possession should take a definite legal shape in the mind of the Preetor. When we turn to the latest phase of Roman law we find that the only use ascribed to the Interdicts Uti Possidetis and Utrubi was to determine a question of possession as preliminary to an action to recover property (J. 4, 15, 4) ; and the sole effect of a judgment was to determine which of the parties should be plaintiff" or defendant in the subsequent proceedings. (D. 41, 2, 35.) But this could not have been the original purpose of those Interdicts : for the question of possession as preliminary to a vindication was the precise question that the Praetor himself decided in the actio sacramenti ; and no occasion or 1 So closely was the position of defendant associated with the strict legal notion of possession that certain jurists held that an action for the recovery of property could not be brought against a man who had detentio only ; but the inconvenience of this view is obvious, and it was condemned by Ulpian. (D. 6, 1, 9.) "566 HISTORY OF POSSESSION. o necessity existed for the introduction of interdicts for the same purpose. But, if we suppose that in some cases the question of possession was not a mere preliminary to a vindication, but was the sole and final issue between the parties, then the sacramentum would be inapplicable, and the Interdicts Vti Pos- sidetis and Utrubi would be necessary. Ancient law presents us with two distinct cases in which the question of possession arose. If the dispute was between two persons, either of whom claimed ownership, the question of possession was settled by the Praetor himself in the first stage of the sacramentum. But if possession was the only question that could be raised between the parties, and ownership was impossible,! the interdicts Uii Possidetis and Utrubi were em- ployed. In those Interdicts, the question of possession not being a mere prelude to the real controversy, but the only possible issue between the parties, was not decided by the Praetor, but was sent for trial before a judex or recuperatores. There was nothing unconstitutional in the decision of a pre- liminary question, like possession, by the Praetor ; but it would have been as much at variance with Constitutional Law in Eome for the Praetor to take upon himself to decide a question of possession, if it were the sole and final issue between the parties, as it would be for an English judge of his own motion to deprive the litigants of the right of trial by jury. The mere fact, therefore, that in some cases the Praetor did not adjudi- cate upon possession, but referred the question for trial in the ordinary way, goes to prove that in those cases the question of possession was the only one that could be raised between the parties, and that a decision upon it put an end to all con- troversy between them. Does the history of Rome supply us with any cases that fulfil the conditions required to account for the existence of the Interdicts, Uti Possidetis and Utrubi ? In two cases the required conditions seem to be complied with. Those were cases where, according to Roman law, ownership could not exist, but where it was a matter of high policy to give the protection that owners receive from law. If one of the parties to the dispute was a peregrinus, the sacramentum could not be used ; and the question of possession would not be a mere preliminary to a vindication, ^ Possessio ab agro juris proprietate distat ; quidquid enim adprehendimus, cvjus proprietas ad nos non pertinet, AUT NEC potest pbktineue, hoc possessionem appdlamus. (D. 60, 16, 115.) POSSESSION IN ACER PUBLICUS. 367 but the sole and final question to be determined. There was another case. Land forming part of the ager publious was occupied and cultivated by private individuals, and transmitted by them to their descendants. But in such land ownership by private individuals could not exist. If, therefore, legal pro- tection was to be given to the holders of public land, it would not be by the actio sacramenti. Those cases must now be con- sidered more in detail. The necessities of private holders of ager puhlicus seem to be completely met by the Interdict Uti Possidetis, and to afford a possible explanation of the origin of that Interdict. Savigny thus sums up his own and Niebuhr's views on this subject. " Originally, and from the earliest times down- wards, there were two rights in land, property in the ager privatus with vindication, and possessio in the ager puhlicus, with a similar protection in the form we now see in the Praetor's Interdicts. At a later period the Praetor recognised this legal relation in terms in the Edicts, and thus gave rise to Interdicts as Praetorian remedies, possibly with very little alteration of the law in principle. In the same way it was subsequently found convenient to apply the possessio, which had been origin- ally devised for ager puhlicus only, to ager privatus also, although there was no very urgent necessity for it, and it probably never would have been applied in the first instance to the latter. Now this subsequent application of possessio to ager privatus is the only one which remains to us in the law sources, which scarcely take note of ager puhlicus. Whether this exten- sion of the original meaning was previous or subsequent to the adoption of Interdicts into the Edicts, and what the mode of introducing and treating the subject in the Edict was, we are completely ignorant ; the only historical knowledge we have is, that possessory Interdicts had been already introduced in the time of Cicero.*' If Niebuhr's hypothesis with respect to the character of pos- session in the ager puhlicus be proved, it would afford an explanation of the Interdict Uti Possidetis. Without in any way discrediting his very ingenious reconstruction of a lost chapter in the agrarian history of Rome, we may put forward another case apparently satisfying the conditions of the problem, even more fully than the case of the ager puhlicus. It is at least possible that Interdicts were first introduced to protect the proprietary interests of peregrini; in which case, it would 3^8 HISTORY OF POSSESSION. follow that the possessory Interdicts were afterwards extended to private holdings in the ager publicus. The proof with regard to the peregrini involves three propositions — (1) that at a very early period peregrini enjoyed legal protection for their pro- perty ; (2) that such protection was not afforded by the ordi- nary actions for the recovery of property ; and (3) that possession, which depends on the jus naturale, was open to peregrini. This last proposition needs no discussion. The second admits of clear proof. Three actions, representing successive stages of development and simplification, were employed to determine questions of ownership. These were sacramentum, sponsio, and petitoria formula. The sacramentum being a legis actio could not be used except by cives Romani. The sponsio, which succeeded it, in terms excludes the possi- bility of its use by peregrini ; " if the slave in dispute is mine ex jure Quiritium " is the hypothesis on which it proceeds. (G. 4, 93.) In the petitoria formula, again, it is said, " If it appears that the slave Stichus belongs to A. A. ex jure Quiritium." (G. 4, 41 ; Gic. in Verr. 2, 2, 12.) Thus only a dominus ex jure Quiritium could sue by an actio in rem iTp to the close of the Formulary Period in the reign of Diocletian. It now remains to show that peregrini, although they could not bring an actio in rem, nevertheless had legal protection to their property. The proof is easy. The appointment of a Prcetor Peregrinus (b.c. 247) only 120 years after the establishment of the Urban Prsetorship, to relieve the Urban Praetor of cases in which a peregrinus was a party, is generally considered to attest the extent to which transactions with peregrini had, two centuries before the end of the Republic, been multiplied. We know that at an early period the contract of sponsio was enlarged into the stipulatio, by the authorisation of words that could be used by peregrini, such as fidepromitto, do, facio. But the most instructive evidence is derived from a strange sole- cism in the Roman law of sale. To the very latest period of Roman law, if a buyer, say of a valuable landed estate, discovered before paying the price that the vendor had not a good title to the ownership, he could not refuse to complete the transaction, if the vendor was able to give him a good possessory title (vacua possessio). It is true that if the buyer was afterwards evicted by law from the property at the instance of the true owner, he could sue the vendor to recover PEREGRIN! : LAW OF SALE. 369 back the purchase money. But obviously this was an im- perfect remedy, for before the eviction took place, the vendor might be insolvent. But that vfas not the strangest part of the case. If the vendor by special agreement undertook to do more than give a possessory title and promised to make out a good title as owner, it was held that the transaction was not a sale, and therefore could not be enforced as an executory con- tract. (D. 12, 4, 16.) Why should it have been of the essence of a contract of sale, that the vendor should give only a possessory title? The object of a contract of sale in Rome, as elsewhere throughout the world, was to make the buyer the owner of what he bought, in exchange for the price he paid. In this, as in other cases, where a rule tenaciously maintained through- out the whole duration of the Roman law is inconsistent with reason and expediency, we ought to look for some powerful deflecting cause in the history of the law. Apparently we find such a cause in the circumstances of the peregrini. By requir- ing only a possessory title in the law of sale, the door was opened to transactions by classes of persons who were not cap- able of giving a good title to the ownership. Thus the law of sale was made as wide as possible : while, by imposing on the vendor an obligation to repay the price in the event of the buyer being evicted, the requirements of justice were fulfilled as completely as was consistent with the fundamental basis of the law. If, therefore, the law of sale was thus warped in its application even to Eoman citizens, through the desire to open the law of contract freely to peregrini, we can have no difficulty in believing that the same motive would have been sufiScient to lead to the introduction of the interdicts Uti possidetis and Utrubi, which were the appropriate proceedings for determin- ing the legal validity of a possessory title. The law of sale is interesting from another point. If the account here given be correct, the law of property was opened up io peregrini by means of possession as a title, and not, as conceivably it might have been, by giving to aliens fictitious actions to vindicate ownership. The only trace of such actions in connection with aliens is given by Gains (p. 342) ; and the actions he mentions were precisely those that were required to supplement the possessory interdicts. For the purpose of the main argument, it matters little whether we suppose that Interdict Possession was introduced 2 A 2,7^ HISTORY OF POSSESSION. for the sake of possessors in the ager puhlicus, and was after- wards extended to peregrini ; or that interdicts were introduced for peregrini and extended to the possessors of the ager puhlicus. Either hypothesis will account for the peculiarities of the law of possession. In the present state of our knowledge it would perhaps be rash to express any decided opinion as to priority between those two cases. But it may be pointed out that there is a special difficulty in the view that the first application of interdicts was to the case of the ager puhlicus. That would account for the interdict Vti Possidetis, but leave wholly unex- plained the interdict Utrubi, which applies to moveables only. On the other hand, if we suppose it was the case of peregrini that first gave occasion to the interdicts, then both interdicts are accounted for, the peregrini requiring protection both for moveables and immoveables. Those who hold with Savigny and Niebuhr that the sole reason for introducing possessory interdicts is to be foimd in the circumstances of the ager puhlicus, cannot easily explain why Utruhi was established. It is a cardinal maxim of Praeto- rian intervention, never to create a new action unless where necessary. But as the Uti Possidetis fully provided for the wants of the possessors of public land, where was the necessity, or indeed, we may go further and ask, where was the utility of an analogous remedy deahng with moveables 1 The only answer that has any appearance of probability is that when the sacramentum fell into disuse, and the Prtetor no longer decided questions of interim possession in vindications, it became neces- sary to create an interdict for moveables, analogous to Uti pos- sidetis, for the purpose of settling who should be defendant in the vindication of moveables. But the terms of the interdict Utrubi do not lend themselves to such a suggestion. The sin- gular feature in Utrubi is that the litigant succeeded who was in possession during the greater part of the year, not as in Uti Possidetis, who was in lawful possession at the time the pro- ceedings began. Now, if the only object of the interdict was to determine which of two persons should be defendant in an action about to be tried, this provision is unmeaning. Even before the time of Justinian, when the Interdict had cer- tainly no other object, this fact was recognised, and the distinction between Utrubi and Uti possidetis on this point was abolished. Whether the object in dispute was land or moveables, it was the person in possession at the commence- UTI POSSIDETIS AND UTRUBI. 571 inent of the action that succeeded on the question of posses- sion. (J. 4, 15, 4a.) If, however, we suppose that interdicts were brought in for peregrini, this ancient feature of the Utruhi receives a new light. Considering the facility with which many moveables pass from hand to hand, the Utrubi would not have served its purpose, if the right of possession turned on the question who had possession at the time legal proceedings were begun. In the case of land this difficulty does not occur. Land cannot run away or disappear from view ; and a rule that adopted possession at the time action was commenced worked very fairly as a mode of settling what was really a question of ownership. At all events this was the case when the rule was finally adopted, that in cases of clandestina possessio, no hostile possession commenced until it was brought to the knowledge of the previous possessor. If, therefore, one neglected to take advantage of the vitium of his successor's possession, and waited until the property changed hands, he suffered only from his own laches. But it was very different in the case of move- ables, which might pass through several hands rapidly without our knowledge. In effect, therefore, the interdict Utruhi was based on a short prescription of six months, and, as in usu- capion, an accessio temporis was allowed. (G. 4, 152.) (p. 358.) All this is easily understood, if we look upon the Interdict Utruhi as intended to establish a kind of ownership ; but it is unintelligible if Utruhi was nothing more than a preliminary to a vindication. Ownership, in this view, was extended to peregrini through the medium of possession. The Praetor could not, consistently with the limits imposed on his powers, venture directly to be- stow dominium ex jure Quiritium on peregrini; but in effect he accomplished the same object by protecting possession. An exact parallel occurs in the case of Inheritance. It was a strict rule of the Roman law that the Prsetor could not make an heir (Jieres). But, notwithstanding that rule, the Preetor was almost the sole agency up to the time of the Empire, by which the law of inheritance was altered, and succession taken fi-om those who were entitled by the jus civile and given to those who were not entitled by the jus civile. To take a single example. A son released from the potestas could not be heir to his father, even if his father left no children except himself This seems, at an early stage of Roman history, to have been considered a 372 HISTORY OF POSSESSION. very bard case, and accordingly the Prastor interfered on behalf of the emancipated son. He did not violate the rule prohibiting him from making a new class of heirs ; but he said, I will give the emancipated son the possessio honorum of his father. By the possessio honorum the Prsetor granted to the emancipated son all the rights, and imposed upon him all the duties of an heir, while he religiously abstained from giving him the name of heir (Iieres). There were technical, but not sub- stantial, differences between hereditas and bonorum possessio; and until a late period of Roman law the technical distinction remained ; but at last, under Justinian, even the technical distinction was swept away. The conclusions to which a consideration of the necessities of Roman law lead us are corroborated in a striking manner by the peculiarities of interdict procedure. Among interdicts themselves there is a profound difference between the Uti Possidetis and Utruhi and the other interdicts we have had to consider, such as Unde vi or Quod vi aut clam ; and this differ- ence bears a remarkable analogy to a distinction that exists in the corresponding actions affecting property. The place of the interdict Unde vi in a classification of Roman law is not hard to determine. That interdict may be compared with the actio furti or vi bonorum raptorum in the case of moveables. It was the remedy open to an owner of land or hoiises illegally deprived of his possession. Prior to the intro- duction of this interdict, an owner had no remedy against wrongful ejectment except the actio sacramenti?- In that action the plaintiff relied upon his title as owner. This was reason- able when he was opposed by another also making a bona fide claim to the ownership ; but it imposed a great hardship on an undoubted owner evicted by a wrongdoer without any shadow of claim. The interdict Unde vi redressed this grievance, and enabled an owner to recover possession without proving his title, and without exposing him to the technical snares and pitfalls of a legis actio. We have assumed that the interdict Unde vi was brought in for the protection of owners ; and, as a general rule, it was owners that benefited by it ; but the con- dition of rehef to owners was such as to enable persons who were not owners to have recourse to the interdict. Inasmuch ' It must not be forgotten that if a peregrinus, at this stage of Roman history, were the wrongful possessor, the owner had no legal remedy, inasmuch as the actio sacramenti could not be brought against a percgrinus. INTERDICT UNDE VI. 373 as the owner succeeded on proof of possession, without prov- ing his title, it followed that persons who had possession, although not owners, could prove all that was necessary to procure the aid of the interdict. Thus the interdict was open to adverse possessors. There must have been some different reason for the intro- duction of the interdict Quod vi aui clam. That interdict was the appropriate remedy where immoveables were damaged. But damage to immoveables was provided for by the XII Tables, and also by the lex Aquilia. (D. 9, 2, 27, 7 ; D. 9, 2, 27, 31; C. 3, 35, 2.) The owner, therefore, had an action jure civile to recover compensation for injury to his property. Moreover, the owner had the advantage in suing on the lea Aquilia of recovering double damages, if the defendant denied his liability, and was found liable. There must, however, have been some reasons not apparent on the surface, why the remedy on the lex Aquilia was not used, and was practically superseded by the interdict Quod vi aut clam. Whatever the reason, this inter- dict, as well as the interdict TJnde vi, was in substance an action for wrong or tort done in respect of immoveables. The issue raised by the Interdicts Uti Possidetis and Utrnbi is of a different kind. It is simply which of two persons has possessio — in other words, which of two persons is entitled to be protected by law in the occupation of the property in dispute. (D. 41, 2, 35.) This is strictly analogous to the question — which of two persons is the owner of a given subject. Look- ing, therefore, to the issue raised between the parties, it is clear that Uti Possidetis and Utrubi must be compared,' not with actions ex delicto, but with the Vindicatio or actio in rem. The distinction between those two classes of Interdicts cor- responds with a curious and instructive difference in Procedure. Interdicts, says Gains (Gr. 4, 156-160) (p. 359), are either duplicia or simplicia. The examples he quotes of duplicia interdicta are the interdicts Uti Possidetis and Utruhi. All interdicts for res- titution (including Unde vi and Quod vi aut clam) are simplicia. An interdict is simple when, from the commencement of the proceedings, one party is plaintiff and the other defendant. An interdict is double when both parties to the suit stand on the same footing, neither being specially defendant or plaintiff, but each sustaining both parts alike. In the double interdicts, the first step to be taken was to offer the interim posses- sion to the highest bidder. The one that bid highest thus 374 HISTORY OF POSSESSION. became defendant on the trial of the issue — ■which of them had possession. This peculiarity of the double interdicts is obviously an imitation of the sacramentum. Now we can understand the false assumption in the sacramentum, that, in the beginning of the action, neither party is plaintiff; there are merely two persons quarrelling. It is a relic of the time when the assumption was a fact — when the Prsetor acted as a voluntary referee without any coercive jurisdiction. But why should the Praetor repro- duce this fiction in a proceeding entirely created and moulded by himself? And why should he imitate the sacramentum in the interdicts Uti Possidetis and Utrubi, and not in the inter- dicts Un,de vi or Quod vi aut clam ?, If we suppose that the intention of the Praetor in the inter- dicts Uti Possidetis and Utrubi was to legalise ownership in cases not provided for by the jus civile, these questions admit an easy solution. The Praetor, in setting up remedies for a new form of ownership, naturally adopted as his model the pro- ceedings of the civil law in the like case. The interdicts Uti Possidetis and Utrubi were drawn on the lines of the sacra- mentum ; in like manner, the interdicts Unde vi and Quod vi aut clam and many others, being in substance actions arising from delictum, followed the models of the actiones ex delicto according to the civil law. In Uti Possidetis there was at first no plaintiff and no defendant, because in the sacramentum there was no plaintiff and no defendant ; in the Quod vi aut clam there was a lecognised plaintiff and a recognised defendant from the begin- ning, because in the action on the lex Aquilia and for other delicts there was a recognised plaintiff and a recognised defen- dant from the beginning.^ This imitation was part of the traditions of the office of Prsetor. The Praetor occupied a singular position as a Reformer of the Law appointed by the Roman Constitution ; but his most important and successful changes were those that in appearance departed least from the jus civile. ' This circumstance may perhaps give us a clue to the date when the Interdicts Uti Possidetis and Utrubi were first introduced. The Prietor would hardly have imi- tated the sacrammtum if he had had any simpler procedure to copy. We cannot conceive that he should have done so after the petitoria, formula or even the sponsio was in use. If a conjecture may be permitted, the date of the introduction of Posses- sory Interdicts would be prior to the introduction of the Formulary System, — that is, prior to the lex Aebutia, The date of this statute is uncertain, some putting it earliur than B.C. 247 (p. 62). TITLE NO DEFENCE. 375 We must now inquire whether the hypothesis of the origin of possessory interdicts iu the necessity of estabhshiug a wider basis of ownership is consistent with the characteristic rules of the law of possession. 1. A person who had an injusta possessio, but was the true owner, could not plead his title as a defence to a suit for pos- session. He was obliged by the interdict to surrender the pro- perty to the Justus possessor, who was not owner, and institute a vindication to reclaim the property. No good object can be served by putting a man into interim possession, when his fate is to be turned out by the next proceeding, and the only result of the Roman rule is delay, costs, and damage. Nevertheless, such is the tenacity of legal ideas, the rule obtains to the present day in those countries that have followed the Roman law with more fidelity than intelligence. This is indeed a striking example of a rule having a reasonable commencement, but speedily becoming unreasonable (cessante causa non cessavit lew), iu that condition seems to be endowed with inextinguishable vitality. When the Preetor introduced the interdicts Ufi Possi- detis and Utruhi, a claim of ownership could not be a defence to the interdicts, for the simple reason that the interdicts were intended for cases where ownership was impossible. If a claim of ownership was or could be raised, then the preliminary ques- tion of possession was determined by the Pr^tor himself with- out any reference to a judex or the issue of any interdict. But, afterwards, when the interdicts were used, as they were in later times exclusively, in cases where the real issue between the parties was a question of ownership, the rule that a title could not be raised as a defence to an interdict, was still — such is the power of custom — rigorously enforced. 2. In the Roman law, as we have seen (p. 341), an occupier of a thing could not have possession unless he intended to hold as absolute owner. If he meant to hold only for his life, he was not a possessor, and therefore not entitled to the protection of interdicts. Such was, at the outset, the unquestionable doctrine of Roman law. If the reason for introducing Inter- dict Possession was to expand the law of ownership, naturally enough, protection was given to those persons only who occupied animo dowini. Viewed in reference to the circum- stances of its origin, the rule that no person should have the protection of Interdicts unless he held animo doniini, was reasonable and necessary. It was enough for a beginning, 376 HISTORY OF POSSESSION. and later on, tlie Roman law extended the protection of Interdicts to uausfructus and to praedial servitudes. But the Roman law never went so far as to give the same protection to a depositee, a borrower (commodatarius), or a tenant of a farm. It is easy to understand why the Roman law went so far as it did, and also why it stopped short at the point where it did. The protection of possessory Interdicts was extended to the personal and praedial servi- tudes, because it was imperative to go so far ; but although convenience pleaded strongly for a further extension to the case of depositees, borrowers, and tenants, yet such extension could not be said to be necessary. Here, as in other cases, the Prsetor went as far as necessary and no farther. The necessity of extending Interdicts to personal and praedial servitudes is easy to understand. We shall suppose that a person, declared a possessor of a portion of public land, by his will bequeaths the usufruct of the land to his wife, and, subject thereto, the ownership to his son. The man dies ; the widow continues to occupy the land until she is forcibly expelled by an outsider. Can she avail herself of the interdict to recover possession 1 Clearly not, because she does not hold as owner, but onlj'' as tenant for life. The wrongful trespasser remains triumphantly in possession. Such a result would not long be tolerated. Again, we shall suppose that Titius and Maevius occupy adjoining farms on public land. The farm of Titius is next to the public highway, and Maevius cannot get to the public road except in virtue of a right of way that Titius has granted to him over his farm. If, now, Titius blocks the way, and refuses to allow Maevius access to the public highway, what remedy has Maevius"? Clearly he cannot sue for a legal right of way, for that was a res mancipi, and could not be created \>y Titius, who was not an owner, nor in favour of Maevius, who likewise was not an owner. Therefore, as the law stood at first, Maevius had no remedy. But it was impossible for the Praetor practically to sanction the ownership of land in the ager puhlicus, and at the same time to deny legal protection for the servitudes that were essential to the bene- ficial enjoyment of the property. The concession of owner- ship to peregrini and possessors of ager iduUicus inevitably drew nfter it in the course of time the concession of personal and praedial servitudes, which are mere fragments of ownership. ANIMUS DOMINI. 2)77 Tims it came to pass, in the case of servitudes as in the case of ownership, that there was a complete duplication of remedies, the interdicts being founded on mere use, while the correlative actions raised the question of right. No similar urgency existed in the case of depositees, borrowers, or tenants. A complete law of property extending down to the smallest servitude, could be created without touching the case of tenants of farms. Consistency did not require auy extension of interdicts to them, and, more- over, depositees, borrowers, or tenants, were provided with remedies, although not by interdicts, to the extent to which their interests might be affected by loss of occupation. To refuse possessory rights to tenants was a real defect in Roman law ; but it was not a defect resulting in such clamant injury as to compel the Pr»tor to go out of his way to give them relief. Many German writers, from too great a deference to the authority of the Roman law, and from a characteristic tendency to over-refinement in juridical speculation, have fallen into two errors. They have erroneously held that animus domini is essential to the true notion of possession in the Roman law, and partly in consequence of this mistake, they say that no possession can, on principle, deserve the protection of the State unless the possessor has an animus domini. But, in the iirst place, the Praetor, in requiring anim,us domini in a person seeking the aid of the possessory interdicts, was not thinking of adverse possession at all ; and in the second place, although beginning with animus domini, the Roman law went far beyond that point. When, therefore, Bruns speaks of the modern statutes that give possessory remedies to tenants as a sacrifice of principle to convenience, he would have been nearer the truth if he had said that the denial of such rights was a sacrifice of the substantial interests of justice to juridical tradition not correctly understood. The English law, which treats the subject of possession free from the bias of a correct or an erroneous understanding of the Roman law, gives pos- sessory remedies to lessees and simple bailees, which latter term includes the depositee of Roman law. In this respect, the English law is in harmony with the dictates of common sense, and there is no reason to believe that the Roman law would have taken a different view, but irom the fact that its law of possession was originally a law of ownership. The 37^ HISTORY OF POSSESSION. point is well put by Mr W. 0. Holmes in a recent interesting Avork/ " If what the law does is to exclude others [than the possessor] from interfering with the object, it would seem that the intent which the law should require is an intent to exclude others. I believe that such an intent is all that the common law deems needful, and that on principle no more should be required." The true philosophical basis of possession is detentio together with the animus tenendi (not the animus domini). 3. In the law of possession, agency was admitted fully and explicitly. The chief obstacle to the admission of agency in mancipatio or in contract does not exist in the case of possession. It was the Formalism of the Roman law that made it so hard to obtain a recognition of agency. Where the rights acquired depended on the exact observance of cei-tain solemn forms, it was difficult to give such rights to persons who did not them- selves participate in the foi-malities. But possession was a fact ; it depended upon no observance of a rigid legal etiquette. While, on the one hand, there was thus less resistance to the admission of agency in cases of possession, such admission was absolutely necessary if the benefit of possessory interdicts was not to be confined within exceedingly narrow limits. If a man could possess, in the legal sense, only objects with which he was in close physical proximity ; if he lost possession of his farm when he let it to a tenant or left it in charge of his slaves, the utility of possessory interdicts would have been sadly impaired. If the Praetor's object was to give by means of possessory remedies the practical enjoyment of property, then it was indispensable that a man should be allowed to possess by his slaves or agents as well as in his own person. Retention by an agent was essential to the usefulness of possession, but acquisition of possession in the first instance without the presence of the principal, was not indispensable, and it was long before the Roman law took that step. In the time of Gains (G. 2, 95), the question whether a man could acquire, as well as retain, possession by an agent, was un- settled. Justinian seems to ascribe the change to a constitu- tion of Severus (a.d. 226) (J. 2, 9, 5 ; 0. 7, 32, 1) ; but that only confirmed what had already become law through the influence of the jurisconsults. (D. 41, 1, 20, 2.) Another question that has offered rare temptations to finely- 1 "The Common Law," p. 220. ANIMUS DOMINI. 379 spun controversy is, whether possession is a Fact or a Right % The question could not have arisen but for an ambiguity in the word possessio. By the term " possessor " is meant one of two things. Sometimes it means " a person entitled to certain rights," which, as we have seen, were at first practically the same as ownership. But by "possession" is often meant the investitive facts that create those rights, namely detentio to- gether with the animus domini. In the first sense of the word, possession is a right ; in the second, it is a fact. To appreciate the evil consequences of the double meaning of such a term, it is only necessary to think what confusion would arise if the same word signified both ownership and title. In speaking of ownership, we have two terms — dominium, signifying a collec- tion of rights ; and say, traditio, the name of an investitive fact. Impressed with the inconvenience of such an ambiguity in so important a term, I suggested, in the first editiou of this work, that while retaining possession, as the proper designation of the investitive fact, Pr^torian or Equitable Ownership might be employed to name the rights arising from that fact. Thus, as we have Quiritarian Ownership arising from marwipatio, and Bonitarian Ownership arising from possessio ad usucapionem, so we should have Praetorian or Equitable Ownership arising from possessio. Possession without animus domini. We must now consider with exactness the exceptions re- cognised in the Roman law to the rule that no one can have the benefit of the Possessory Interdicts who does not hold animo domini. A hypothesis put forward to explain possessio has not done half its work when it has accounted for the rule ; it must equally account for the exceptions. The exceptions in the Roman law fall into two classes. In the first class, pos- session, both name and thing, is frankly admitted in the absence of animus domini; in the second class, possession — the thing is admitted, but the name is strenuously denied. The first class includes, in addition to pignus and precarium already mentioned (p. 341) emphyteusis, sequestratio, and (but this is disputed) superficies. The second class includes Personal Ser- vitudes and Affirmative Praedial Servitudes. In this case the authorities deny that there is possession, and say there is quasi-possessio. 380 HISTORY OF POSSESSION. I. — Cases where possession — name and thing — is admitted IN THE absence OP ANIMUS DOMINI. In this group the only cases that require explanation a,vepig- nus and precarium. The sequester, emphyteuta and superficiarius belong to the later Roman law ; they came into existence long after the theory and practice of possessory interdicts were settled, and they can throw no light upon the origin of pos- session. At the same time they are not without significance as showing the readiness of the Roman law to extend the application of possessory remedies. Precarium, and probably, pignus stand on a different footing. Precarium is at least as old as the first introduction of pos- sessory interdicts, and pignus boasts of considerable, if not equal, antiquity. Unexplained, therefore, precarium at all events would negative the proposition laid down, that, at first, in every case the Roman law refused to protect a possessor unless he held animo domini. Precarium. — Precarium stands, among rights in rem, at the opposite end of the scale from dominium. Ownership is the largest interest that one can have in things ; precarium, or tenancy-at-will, is the smallest. Yet, a person holding precario had the benefit of the possessory interdicts, and was called a possessor, although according to the rule of Roman law, no one could be a possessor, unless he held animo domini. The incon- sistency is startling, but that is not all. A tenant for a term of years was, to the latest period of Roman law, held to be no possessor, for he had no animus domini, and therefore could not invoke the aid of the possessory interdicts. Viewed from the standpoint of reason, a more glaring inconsistency could not easily be imagined. But looking to the history oi precarium, we shall find a simple explanation of this extraordinary anomaly. Precarium, although in later times a rare and insignificant form of tenure, could never have filled the large place it does in connection with the possessory interdicts, if it had not in earlier days been of high importance. It reminds us at once of the copyhold tenure of English law, although the fate ot precarium was curiously unlike the fate of the English villein tenure. A copyholder remains to the present day in theory, as he originally was in fact, a tenant at will. His emancipation dates from the reign of Edw. IV., when the judges decided that a copyholder could not be evicted, so long as he paid the PRECARIUM. 381 customary dues. By this decision, a tenancy-at-will was con- verted into a tenure in perpetuity. Precarium, in the early period of Roman history, appears to have been the tenure on which clients cultivated land belonging to, or in the possession of, their patrons. The client paid no rent, but in theory he held only during the good pleasure of his patron. The singular point, however, is, that the client, if he so willed, could hold the land in defiance of his patron. We are distinctly told by Paul (D. 43, 26, 14), that the interdict de Precario, the remedy ultimately given to the landlord or patron to evict his client, was introduced because no remedy was given to the landlord by the jus civile. Indeed, if the landlord had exacted security for the surrender of the land, he was not allowed the interdict de precario, and was left to enforce his security. (D. 43, 26, 15, 3.) Thus, prior to the remedy introduced by the Preetor, a client was in the position of a modern copyholder, — he could not be evicted. A client, therefore, holding against his patron was, in the strict sense of the word, a possessor ; he held animo domini ; and, although he was unconscientious in refusing to act upon the understanding upon which he was admitted, he was none the less a possessor. The phraseology of the interdicts bears conclusive testimony that at one time precarium readily passed into possessio. In all the interdicts, the three terms, vi, clam, precario, are associated together, as the three vitia possessionis. The possession of a client, in a controversy between him and his patron, was stamped as vitiosa. But the posses- sion was none the less possession, because it was vitiosa, and, as we have seen (adversus extraneos vitiosa possessio prodesse solet), such a possession was good and effectual against all the world, except the patron. The privilege of invoking the possessory interdicts against all the world, except the landlord, remained after the interdict de precario was allowed ; because it was enough to protect the land- lord without depriving the tenant of the privilege he had before enjoyed. It is one of many instances supplied by the history of legal rules, where an incident originally attached to a juridical conception from reason or necessity, continues to subsist, although the reason for its existence has disappeared. The history of testam£nium supplies a remarkable illustration of the same theme. At first wills were made in the Comitia, in the ordinary form of legislation, with the authority of the Roman people, and thereby manumissions of slaves, which could not be 382 HISTORY OF POSSESSION. effected without the authority of the State, could be accom- plished. But after wills had ceased to be made in this public manuer, and had become private, and even secret transactions, they still retained the old power of manumission. In the case of precarium, justice required that the Praetor should give a remedy to the landlord against a recalcitrant tenant at will, but justice did not require that the position of the tenant should be impaired, so far as third parties were concerned, and thus, to the latest period of Roman law, the tenant at will had the right to possessory interdicts, the only relic of his ancient security and grandeur. PiGNUS. — The earliest form of mortgage known to the Roman law, was an absolute conveyance of the property to the creditor by mancipatio or cessio in jure, on condition that, when the debt was discharged, the creditor should reconvey the property to the debtor. The mortgagee became at once owner of the property, but in virtue of the solemn transaction of mancipatio was legally bound to restore the property, when the debt was paid. If, however, a borrower delivered property to a lender to secure a loan, but neglected to use the mancipatio, what was his remedy if the creditor refused to give back the property after the debt was discharged? He appears to have had no remedy, as no action would lie on a promise to restore the pro- perty, when that promise was not made in solemn form. The injustice of such a result led to the interference of the Praetor, who introduced tlie actio pigneratitia to enable a debtor to re- claim his property after he had repaid the loan. In granting this action the Preetor had no purpose except to give redress in a clamant case, where no redress was afforded by the jus civile, but the indirect, and probably unforeseen, consequence of his interference, was to make delivery without mancipatio as secure a form of mortgage, as delivery with mancipatio, and thus the mortgage odXiedi pignus rapidly superseded the ancient and less convenient form. Before the actio pigneratitia was brought in, a person to whom property had been delivered Avithout mancipatio could hold as owner in defiance of the just claims of the mortgager. He was thus a true possessor, or, it might be, even owner ; and his possession was not affected with any vitium. He held with the express consent of the mortgager, and therefore nee vi, nee clam, nee p)recario. The actio pigneratitia was personal to the mort- gager or his representatives, audit did not in anyway diminish PI GNUS. 383 the rights of the creditor against third parties, and con- sequently did not destroy his rights to the possessory in- terdicts. Thus in pignus, as in. precarium, history enables us to understand wh}"-, although animus domini was wanting, pos- sessory rights were sanctioned. They were sanctioned because at one time in their history, the animus domini did exist, and therefore possession ; and when the animus domini ceased, no necessity was imposed upon the Prastor to take away the privileges it had bestowed. Emphyteusis. — This tenure is distinguished from ownership only in respect of tlie payment of rent, and the consequences deducible therefi-om. The emphi/teuta had actions practically identical with the vindicatio for ownership ; and he required the interdicts Unde vi and Quod vi aut clam to protect his rights. For this purpose, at all events, he was a possessor. (D.2,8,15, 1.) But Uti Possidetis, as a means of settling the claim of rival pos- sessors, could scarcely be relevant, as the emphyteusis origin- ated in agreement. Where, however, the possession of an empliyteuta was constructively assailed, and the Uti Possidetis was used to secure the free exercise of the property (p. 253), it would be available. Superficies is a similar tenure ; but the superficiarins could not use the interdict Uti Possidetis for any purpose. The possessor of the solum could alone use it, for superficies solo cedit. But the superficiarius was protected by a special interdict, and, moreover, could employ Unde vi and Quod vi aut clam. (D. 43, 16,1,5.) It would, therefore, seem that while the possessory interdicts, in so far as they raised as issue the jus possessionis, were not relevant to emphyteusis and superficies, yet in so far as they took the place of actiones ex delicto to give redress in respect of wrongs to immoveables, they were applicable. Sequestratio. — When an action was brought for the recovery of property which, pending the suit, was deposited with a third party, and it was an object to prevent either party gaining by usucapio, while the proceedings were going on it was competent to the parties to agree that the stakeholder {sequester) should have not merely the custody, but- the possession of the pro- perty. (D. 41, 2, 39 ; D. 16, 3, 17, 1.) Probably the sequester could use the possessory interdicts. As a mere depositee, he could not sue even a thief, if the object were a moveable, nor protect himself by the Interdict Unde Vi, if it were immoveable. 384 HISTORY OF POSSESSION. Necessity required, as the ownership was in dispute, that some protection should be given to the sequester, and the Prsetor, instead of making a special interdict, as in the missio in posses- sionem, admitted him to the ordinaiy possessory interdicts. IL—QUASI-POSSESSIO. OASES WHERE POSSESSION WITHOUT ANIMUS DOMINI WAS DENIED IN NAME BUT ADMITTED IN FACT. In these cases two questions arise: — (1) Upon what principle were possessory rights conferred in the absence of animus domini? and (2) why did the jurists, admitting posses- sory rights, refuse to admit possession? This group includes examples from personal and praedial servitudes. Personal Servitudes : Ususfructus. The only personal servitude that appears to be mentioned in connection with possession is ususfructus, although there is no reason to suppose that possessory remedies were not applicable in the case of the other personal servitudes. The usufructuary could resort to the Interdict Unde vi (D. 43, 16, 3, 15), the In- terdict Quod vi aut clam (D. 43, 24, 12 ; D. 43, 24, 13, pr.), and the Interdict Uti Possidetis. (D. 43, 17, 4.) From this it ought to have followed that a usufructuary was a possessor. A pos- sessor is one entitled to use the possessory Interdicts, and one entitled to use the possessory Interdicts is a possessor. No other use of technical terms can be justified. To say that of two men equally entitled to the Possessory Interdicts, one is a possessor and ihe other is not, is to employ technical language to produce confusion instead of assisting clearness. Yet this ■was exactly what the jurists did in the case of ususfructus. It is true that the usufructuary has not the animus domini; but that element is equally w^nting in pignus and precarium ; yet in those cases, as we have seen, the jurists made no scruple to admit the name of possessio as well as the fact. Why should it be different in the case of ususfructus f That it was differ- ent is abundantly clear.^ 1 The language of the jurists ia, however, by no means uniform ; and, in fact, is consistent only in denying possessio to a usufructuary. (D. 43, 26, 6, 2 ; D. 2, 8, 15, 1.) Venuleius adds, the possessio of land held in usufruct remains with the owner {dominus proprietatis nudae.) (D. 41, 2, 52, pr.) Gains says the usufructuary has not possession, but only a right of enjoyment {jus utendi fruendi.) (D. 41, 1, 10, 5.) Again, Ulpian says that a usufructuary has natural possession (D. 41, 2, 12, pr.), or occupation (dekntio) merely. (D. 43, 3, 1, 8.) QUASI-POSSESSIO. 385 What, then, is the meaning of this strange inconsistency — the granting to a usufructuary all the rights that constituted possession in a legal sense, combined with a stern refusal of the name ? The secret is, that there was a time, perhaps not a short time, when the Roman law rigorously held that posses- sion could not exist except when the animus domini was present. This, as has been explained, is consistent with the cases of pignus and precarium, where at first, if the view suggested in this chapter is right, the jurists recognised the presence of an animus domini. The starting point of the Roman law is then universally, no animus domini, no possession. Consequently a usufructuary, having no animus domini, could not claim posses- sion, neither name nor thing. He could not be a possessor, and he could not use the possessory luterdicts. If we had no information except from Justinian's Digest, this inconsistency would be a hopeless puzzle. In the Digest the usufructuary is spoken of as entitled to the same interdicts as the possessor. But we learn from a passage preserved in the Vatican Fragments, that there were really two interdicts, one of which applied to possession, the other to ususfructus. Venuleius tells us (Vat. Frag., 91) that the Interdict Unde vi could not, in its original form, be used by a usufructuary, because he was not a possessor. But the Inter- dict was modified for his benefit : "If he is alleged to be hindered by force from enjoying the usufruct." — "&" uti frui vi prohibitus ess-e dicetur."' By this means possessory rights were extended to fmctuarii. We can now understand why the jurists were compelled, by the necessities of their technical language, to deny that the usufructuary was a possessor. The very terms of the Interdict by which he got possessory rights implied that he was not a possessor ; for, if he were a possessor, no change in the Interdict would have been required. It was not possession; it was an extension of possessory remedies to a case where there was no possession.^ The interest of the ' A legatee, who, without the consent of the heir, took posseaaioji of the object bequeathed, was compelled, at the instance of the heir, to give up possession by the Interdict Quod Legatorum. This interdict could be brought against a possessor only, and inasmuch as a usufructuary was not -a possessor, a new interdict was required when a usufructuary had entered upon property left to him in usufruct. " Inde ut interdictum Uti Possidetis utUe hoc nomine proponitur et Unde Vi, quia non possidet, etiam utUe datur quod taliter concipiendum est ; quod de his bonis legati nomine pes- sides, quodque uteris frueris, quodque dolo malofecisti, quominus possideres, uteicrisfruu-' eris." Venuleius, Vat. Frag., 90. For the meaning of utUe, see p. 244. 2 B 386 HISTORY OF POSSESSION. usufructuary was therefore in accordance with usage properly called quasi possessio. (D. 4, 6, 23, 2 ; Vat. Frag., 93.) Quasi possessio has a purely adventitious and historical meaning. It means that the Roman law deliberately advanced from the position that a possessor must have animus domini; and this advance was marked by a new term {quasi possessio). But, after all, the use of quasi possessio savoured of legal pedantry ; for, where there is no difference in substance, why should there be in name? Accordingly we find that in popular language such nicety was not observed, and even in speeches in Court, great lawyers like Cicero do not scruple to speak of the possessio of the usufructuary. (Pro Caecina, c. 32, p.m. 308.) One consequence of this strictness in language is, however, of too much practical importance to be omitted. Before possessory remedies were extended to a usufructuary, he was regarded in law as an agent holding on behalf of the owner — the dominus proprietatis nudae. The owner, therefore, was a possessor, and entitled to the possessory interdicts against any one who might disturb the usufructuary in his possession. In accordance with the conservative instincts of the Roman jurists, it was not deemed necessary to deprive the owner of the advantages he had before enjoyed; he continued to be called possessor, although the usufructuary also had possessory remedies in respect of the same subject-matter. (D. 41, 2, 52, pr.) Thus it happened that two persons in different rights enjoyed possessory remedies in respect of the same object ; and the rule duos eandem possidere nan posse was evaded, by saying that one had possessio and the other not possessio, but quasi possessio. The technical solecism thus served a useful purpose, and this utility may have contributed to the obstinacy with which the jurists adhered to the difference of phraseology. Peaedial Servitudes. — Servitudes are either affirmative or negative (see posted). Negative or urban servitudes (jura urbanorum praediorum) cannot well be the subjects of anything analogous to possession. Suppose A claims a jus altius nan toUendi against B. So long as B merely refrains from raising his building, even should it be from fear of A, it can hardly be said that A is in possession of, or exercises, a jics altius nan tollendi. If B does build higher, A has an action, and that action must necessarily be based on an alleged right to stop the building. QUAST-POSSESSIO. 387 But in the case of affirmative servitudes, there may exist a state of things analogous to possession ; namely, the enjoy- ment of a right, without title. I walk openly over a track in B's field claiming a right of way. If I have no real right of way, but nevertheless B does not forcibly prevent me, I may be said to have the enjoyment without title of a right of way ; and this bears an analogy to adverse possession. But the analogy is not very close, and there is no reason, looking at the subject of mere possession, why we should have a duplication of remedies as in the case of property, one set being founded on actual exer- cise ofa right, wither without title, and the other based on title. It is true that a claim of right exercised for a certain length of time may, by prescription, become a good title. But this is very different from the Roman law. Thus, in the case of a right of way, a possessor of land could, by using a right of way for thirty days in an open manner, without hindrance, establish a claim to the interdict de itinere actuque privato. To obtain the assistance of this interdict, all that he requires to prove is that, during thirty days in one year, he in point of fact used the road. For the purpose of prescription, thirty days was ridiculously short, and such use did not establish plaintiff's right but only secured him the use of the right, until the owner, of the servient land, by an actio negatoria proved that, not- withstanding such use, his neighbour had no right of way. Long enjoyment ought properly to count as evidence of a true servitude ; and this would seem the only way in which possession could be material in a dispute as to a servitude. The Roman law goes far beyond any legitimate recognition of the actual use of a servitude, and provides possessory inter- dicts alongside the actio confessoria and actio publieiana in rem. It introduces in questions of servitude the same duplication of remedies that has been noticed in questions of property. Thus, if an owner is not in possession, but ejects the possessor, he was worsted on the Possessory Interdict, and could not plead his title by way of defence. He had to go out and bring his vindicatio, when, on proving his title, he could oust the possessor and recover the land. Similarly, in a question of right of way, if an owner of land had permitted another to use a way under a claim of right for thirty days, he was bound to allow him to continue to use it until, by means of an actio negatoria, he had established that the use was without title. In the £rst edition of this work, it was suggested that the 388 HISTORY OF POSSESSION. function of possessory interdicts was to give a remedy against third parties, who had no rights in the servient^ land, but obstructed the owner of the dominant land in the enjoyment of the servitude. That these interdicts would be used in such a case we can easily believe; but they could not have been introduced for that purpose ; for the actio confessoria could be employed against third parties. The only explanation of the existence of such interdicts, which, on their merits, appear to be useless, or at least unnecessary, seems to be that they were introduced for the purpose of completing the legal edifice built by the Preetor for peregrini or possessors of ager publicus. If possession was brought in to establish ownership in cases not allowed by the jus civile, it became necessary to give analogous possessory remedies in servitudes. A peregrinus or possessor ot ager publicus, could not have proved &jus eundi, aquam ducendi, or altius tollendi ; for a jus could not be created except by investi- tive facts inapplicable to these cases. If a remedy was to be given, it must proceed upon not jus, but factum, not right, but actual user.i In this way, the interdicts brought in for praedial servitudes receive an explanation and justification of which they stand much in need. Savigny on Possession. The celebrated treatise of Savigny on Possession has justly been considered a landmark. The lucidity of style, the clear- ness of arrangement, the ingenuity displayed in the elucidation of texts, the skill shown in reconciling passages apparently but not really antagonistic, the reduction of a mass of complicated detail under simple general rules, — all these merits continue to give the treatise a lasting place in the literature of Jurispru- dence. But it is singular that while he had in his hand the real clue to all the intricacies and inconsistencies of the Roman law, he did not foUow it up. In conjunction with Niebuhr, he ' This view derives support from D. 8, 5, 1, 3. Ulpian states that a usufructuary could iise the interdict de itinere to secure a right of way attached to the land held in usufruct ; but that, not being owner, he could not claim a right (ws), and, therefore, could not bring an actio confessoria. " Alibi enim de jure, id est, in confessoria aotione ; alibi de facto, ut in hoc interdicto, quaeritur." As, however, this remedy would not in all cases be sufficient, for the usufructuary might be obstructed before he had had an opportunity of using the way for the prescribed number of days, a utile inter* dictum de itinere was allowed, in which the usufructuary succeeded, if he could show that the person from whom he derived the usufruct had actually used the way for the prescribed period. SAVIGNY. 389 established a theory of the origin of possessiones in the circum- stances of the Public Land that, properly used, would have enabled him to solve the problems of possession. In order to complete the statement of the law of possession, it will be convenient to consider the points on which, as it seems to the present writer, Savigny has fallen into error. 1. " By the possession of a thing," says Savigny, " we always conceive the condition, in which not only one's dealing with the thing is physically possible, but every other person's dealing with it is capable of being excluded." The power of excluding others is not a part of the notion of possession. For if " physical " power is meant, then a weak man could not be a possessor, for he could not exclude a stronger man. If " legal " power is meant, then it is begging the question, for the point to deter- mine is, — what is the physical relation that will enable a possessor to invoke the aid of the legal power ? To constitute possession, it is enough if one has the power of freely dealing with an object, and the intention to exclude others from dealing with it. Savigny's definition cannot easily be applied to a case like that mentioned above (p. 351), where a man hides treasure in another's land. The possessor of the treasure has the power of freely dealing with it, because the Prsetor will compel the owner of the land to admit him to dig for the treasure, on condition of his paying for any damage done to the land : but he has no power of excluding the owner ; for the owner has the right to dig in his own land, and, if he does so, may make himself possessor of the treasure. 2. Savigny holds that possession is by itself a mere fact, and not a right entitled to legal support. "As mere possession is not a legal relation, disturbance of it is not a breach of the law, and it only becomes so, when some other right is violated at the same time. But if a disturbance of possession is effected by force, a breach of the law is committed, because all violence is illegal, and this is an injury against which redress may be obtained by an interdict." " An independent right is not, in this case, violated with the person, but some change is effected in the condition of the person to his prejudice; and if the injury, which consists in the violence to the person, is to be wholly effaced in all its consequences, this can only be effected by the restoration or protection of the status quo, to which the violence extended itself. This is the true ground of possessory suits." This hypothesis is open to several objections. 390 HISTORY OF POSSESSION. (1.) It assumes, contrary to Savigny's o-wn opinion, that possessory sxiits were introduced for the sake of mere pos- sessors. Savigny himself endorses Niebuhr's hypothesis, that possessoiy suits were brought in for the protection of sqnatters on the State domain. Whether the Praetor would have been affected by Savigny's scruple that mere possession gives no moral claim to legal protection, if he had created Interdicts for the sake of possessors, is far from certain ; but, as a matter of fact, there was no room for such scruples, because the object of the Praetor's intervention was to give the same protection to the squatters, that the jus civile gave to the owners of private land. (2.) Without saying that Savigny's suggestion is far-fetched and fanciful, one may at least point out, that it covers only one of the three vitia possessionis. If a person secretly (clam) entered on property left vacant, the possessor could oust him by the interdicts in the same way as if possession had been obtained by violence. In this case, the only right that is violated, is the right of possession, for no injury whatever is done to the person of the possessor. Again, in the case of precarium, the landlord could evict a tenant, after giving him notice to quit, by force but not by arms. (G. 4, 154-155.) Justinian explains that by arms is meant not only swords and shields, but clubs and stones. (J. 4, 15, 6.) In this case, although violence was done to the tenant, he had no action ; but if weapons of any sort were used, he could recover pos- session. If Savigny's view be right, we should be obliged to hold that violence was not illegal, unless it was aggravated by the use of weapons. Thus, even if we were to suppose, con- trary to Savigny's own opinion, that Interdicts were introduced for mere adverse possession, his hypothesis would not be ad- missible as an explanation of the Roman law. There is no reason to suppose that the Praetors were affected by the philosophical ideas that give so much trouble to modern jurists, or that they would have had the smallest scruple in recognising in mere possession a suflScient reason for affording legal pro- tection. The jurisconsults at all events had no such difficulty. Every possessor, they held, was entitled to protection against disturbers who had no better title. Paul, speaking of the Inter- dict Uti Possidetis, states the Roman view in clear language."^ ' /wsto enim an injusta cuiversus caeteros possessio sit, in hoc Interdicto nihil refert ; qualiscumque enim possessor hoc ipso, quod possessor est, plus juris luibet, quam iUe qui nnn possidet. (D, i3, 17, 2.) SAVIGNY. 39 1 (3.) Savigny's hypothesis fails moreover in the single item Avith reference to which it appears to have any relevance. If by vi was meant a personal assault, he would at least have some basis of fact to begin with ; but it did not necessarily imply the slightest assault. A person who refused to admit the possessor had done all that was necessary to enable the possessor to bring the Interdict Unde vi (p. 252). (D. 43, 16, 12.) 3. Savigny affirms " of all interdicts universally," that they found themselves on ohligationes ex inaleficiis. The suggestion is that this lends support to the hypothesis just examined ; that, however, it certainly does not do : for there are delicto in respect of things, as well as delicta in respect of persons. A delictum is simply a violation of an unquestioned right, whether that be a right of person or of property. Even, therefore, if we were to admit that all interdicts were, in substance, actions ex delicto, we should be a long way from proving that they were all remedies for wrong done to the person. Actions relating to rights in respect of things, fall under one of two categories, for either the alleged right is denied, or it i admitted, and only the violation of it is denied. Thus an actio furti presupposes that the defendant does not claim to be owner, and the question is simply whether the defendant has violated the right of the plaintiff by fraudulently depriving him of possession. The analogy between such an action and the interdict Unde vi or Quod vi aut clam is manifest. But in the interdicts Uti Possidetis and Utrubi the question is, which of two persons claiming a right to protection in respect of possession ought to be protected? Either A is in possession and B does something to challenge A's right, in which case A brings the interdict to establish his possession as against B ; or B claims the possession as agaiust A. The question is, therefore, not of the violation of an admitted right, but of the existence of the right itself. (See p. 378.) 4. Derivative Possession. — Savigny was rig^t in seizing the cardinal feature of the Roman doctrine, that a possessor miist ' have animus domini ; but he breaks down in his attempt to give a reasonable account of the numerous and important exceptions to the rule. Dealing, in the first instance, with those exceptions where the jurists frankly admit possession — both name and thing — Savigny says they are instances of Derivative Possession. " Thus, for instance, the creditor has the juridical possession of a pledge, although he has no intention of exercising owner- 392 HISTORY OF POSSESSION. ship over it, because the debtor who had full possession of the article, transferred to him the jus possessionis at the same time as the detention." This amounts to saying that, where mere occupation was transferred, and the possessor wished that the occupier should have the use of the possessory interdicts, in certain cases this wish was complied with. This suggestion of Derivative possession is not to be found in the writings of the jurisconsults. So far from being an explanation, it is a mere state- ment of the difficulty. There is no difficulty where the posses- sion is transferred, because the new possessor holds animo domini. Nor is there any difficulty where the occupation only is trans- ferred to an agent, for in that case, the possessor retains his right to the interdicts. The real difficulty is to explain, con- sistently with the general rule, how a person, like a creditor in the case of a pledge, who has no animus domini, should have possession and possessory remedies, and why the mortgagor, who has still the animus domini, has no right to the possessory interdicts. The word " derivative " explains nothing. Moreover, it is not the jus possessionis, as in one place Savigny alleges, but the possessio itself, that is transferred. 5. Quasi-Possessio. — In this case, the jurists have provided Savigny with an explanation, which, although only a verbal explanation, has been without hesitation adopted by him. Speaking of ususfructus, Savigny says, — " As true possession consists in the exercise of property, so this quasi possession consists in the exercise of a jus in re ; and, as in true possession, we possess the subject itself (possessio corporis), but not the pro- perty, we ought not properly to use the term possession of a servitude (possessio juris)." This explanation is connected with the unscientific division of things into corporales and incorporates. (See p. 287.) We are told by Paul that only corporeal things can be possessed, while an incorporeal right could not be possessed. (D. 41, 2, 3, pr.) Possessio corporis is contrasted with possessio juris. The opinion thus set forth by Paul was unquestionably accepted by the Roman jurists ; but it proceeds upon an im- perfect apprehension of the distinction between ownership and other rights in rem to things. Ownership is simply the largest aggregate of rights in rem to things, and is as truly incorporeal as a single right in rem; as, for example, a private right of way. Servitude and ownership are equally incorporeal in so far as they are rights they are equally corporeal in the sense SAVIGNY, 393 that as rights they exist only with reference to some definite corporeal thing. To say that an estate in land for life is an incorporeal thing, but an estate for ever is corporeal, is an absurdity. When, therefore, Paul says that corporeal things can be possessed, but not an incorporeal right, he commits himself to a false distinction based upon a blunder. For it is manifest that an incorporeal right (to repeat the tautological language of Pavil) may be the object of possession, in precisely the same way as corporeal things may be the object of possession. Possession arises from a disturbance of the normal union in the same person of a right and the appropriate investitive fact. Now, such a separation may exist in respect of any group of rights in rem as well as of ownership. A right of way, for example, was created by one of several facts ; when, therefore, a person used a way as a right without having obtained it by one of these facts, he stood in precisely the same relation to the right of way as one that occupies land does to the land if it does not belong to him. A possessor is simply one that exer- cises a right without being invested with it in any manner appointed by law ; and this is just as true of a single right in rem as of ownership. Savigny repeats the fallacy in the statement that in true possession we possess the subject itself. There is absolutely no difference whatever in the nature of the physical dealing with an object, whether we act as owners or as using a servi- tude. The only way in which I can possess land is by stand- ing, walking, cultivating, or otherwise dealing with it. So in a servitude of a right of way, I can only use it by walking over the land. Paul, and after him Savigny, are wrong in suggest- ing that there is any distinction physically between the pos- session of (so-called) corporeal things and the possession of (so-called) incorporeal things. There is a difference, but not in regard to the physical basis (corpus) of possession ; the difference lies in the animus. It was not the impossibility of true physical possession that prevented a fructuarius suing by the same interdicts as a possessor : it was the absence of animus domini. Between the physical possession of a tenant for life and of an owner there is not the shadow of a difference. 394 PERSONAL SERVITUDES. RIGHTS IN REM TO TfflNGS, INDEFINITE IN POINT OF USEB. BUT LIMITED IN DURATION. II. — Personal Servitudes. Propertj' {dominium) is an aggregate of rights, — of the various and indefinite rights of possession and enjoyment, and the right of alienation. The most perfect example of property is the rights possessed by a man sui juris and of full age over his clothes. His power of enjoying, altering, destroying, or alien- ating his clothes is quite unrestricted. This is property in its fulness. But we still continue to call him owner even when his powers ai-e less complete. Suppose he is interdicted as a spendthrift, and forbidden to sell his property, nevertheless he is called owner. In this case the restraint on alienation is imposed exclusively for his own benefit, and it may seem reason- able to regard him as owner. But the term continues to be applied, as in the case of the ownership of the dos by husbands, when the property is inalienable not in the interest of the owner, but of a person whose right may be looked upon as hostile. Hence, although the power of alienation is a most vital part of ownership, it may be wholly wanting, and still the usage of legal writers requires us to call the residue ownership. In another direction ownership may be abridged without ceasing to obtain the name. The enjoyment of property may be restricted. A common case is where an owner of land is obliged to permit an adjoining proprietor to walk or ride through his land. The exclusive possession of the owner is thereby limited, but still he is called owner. This case is a type of many others, where a person, in opposition to the owner, has a single, definite right over his land. This is a servitude in the strictest sense. But there may be a larger inroad upon the ownership — the entire use and enjoyment of the land — (usus- fructus) may be given for a limited period, or for life. The usu- fructuary has almost as full a right to the use and produce of the property as the owner ; the only distinction between them is, that the owner alone has a right to destroy the substance of the property. Yet what remains, after a usufruct is sub- tracted, is still called ownership {dominium). In the Roman law, when the enjoyment of the owner is curtailed, his property is said to be in servitude {res servit). When the enjoyment is in no way restricted, the property is NATURE OF SERVITUDES. 395 said to be free from any servitude — to have freedom (Ubertas). In this sense, a usufruct was as much a servitude as a right of way; both are modes of enjoyment of land in opposition to the owner. But there is an important difference between them. A light of way, of walking or riding through another's land, is a single, definite, simple use ; a usufruct, implying a right to all the produce of the land, is as indefinite and nearly as exten- sive as ownership itself. Usufruct, in short, has one of the essential features of ownership ; it is a right to the enjoyment of land, not capable of definite limitation, and which, like owner- ship, admits only of a negative description. A right of way admits of exact and positive definition ; one can state fully and accurately the extent of enjoyment it confers. A usufruct and a right of way, although both burdens (servitutes), are thus more opposed to each other even than they are severally to ownership. Usufruct comes near ownership ; a right of way is very remote from it ; usufruct is a very large and indefinite fragment of the enjoyment ; a right of way is a very small one, and perfectly definite. If we were to invent a terminology for these two classes of servitudes, we might call a usufruct an indefinite servitude, a right of way a definite servitude. The only doubt is whether usufruct ought to be called a servitude. In truth, a usufruct is contrasted with ownership, not in respect of the extent of enjoyment, but only in respect of its duration. A usufructuary could not transmit his right to his heirs ; an owner could. The limits to the enjoyment of the usufructuary really arise from the fact that his interest terminates with his death, and that he must there- fore hand on the property unimpaired. Why, then, not call a usufructuary an owner for life? In some modern systems ot law we prefer to speak of limited owners, or persons having an estate (not an easement or servitude) for life. But in Roman law we must religiously abstain from doing so. The fact that a usufruct was originally inalienable is sufficient to mark the contrast with ownership. It was regarded as a burden or de- duction from ownership ; and in the Roman law, it must ever be remembered, ownership and usufruct are opposed to each other, and upon no account can the title of doininus (with whatever qualification) be given to the usufructuary. The distinction between these two classes of servitudes is described by the Roman jurists from a difi'erent and less satis- factory point of view. Marciau says that servitudes belong 396 PERSONAL SERVITUDES. either to persons, as usufruct, or to things, as urban and rural servitudes {servitutes personaricm, servitutes rerum or praediorum). But for the solecism of attributing servitudes to things (for every servitude must belong to a person), the language might be thus defended. A personal servitude is given to an indi- vidual for his enjoyment, and dies with him ; a praedial servi- tude is given to an ov^ner for the better enjoyment of his land, and follovsrs the land. But this distinction does not altogether agree with the difference between indefinite and definite servi- tudes. It is true that all the indefinite servitudes are personal, but so are some of the definite servitudes. Thus the right of taking water from an artificial reservoir, which is a definite servitude, might either be attached to land or be given to a person unconnected with the adjoining land, in which case it did not go to his heirs. (D. 43, 20, 1, 43.) But we read that a right to pluck apples on another man's ground, or to walk about his ground, or to sup in his house, cannot be granted as a personal servitude. (D. 8, 1, 8.) There is indeed no reason why definite servitudes should not be given to individuals not owners of adjoining lands, although in the Roman law this was very rarely allowed. On the other hand, no indefinite servitude was attached to the ownership of land, and from the nature of the case could hardly be, so that a proper classification of servi- tudes need not embrace more than three classes. A. Indefinite Servitudes ; usufructus, usus, liahitatio, operae servorum, [jorecariurn]. B. Definite Servitudes. (a.) Attached to the ownership of adjoining land: — urban and rural servitudes. Rights of- way, of Avater, etc. (b.) Not so attached. Right to draw water from a reservoir (ex castello). USUSFEUCTUS. Definition. A usufruct is the right of using and taking the fruits of any- thing that is not consumed by use for the lifetime of the person receiving, unless another time is fixed. Usufruct is the right to use and enjoy what belongs to another ; but its substance must remain unimpaired. (J. 2, 4, pr.) Its exact character, as related, on the one side, to ownership (dominium), and on the other to servitude, is the subject of USUSFRUCTUS. 397 conflicting statements. Paul says (D. 50, 16, 25, pr.) that an owner is none the less so because another person has got a usufruct in his property, for a usufruct is not a portion of ownership, but is of the nature of a servitude. But the same writer, in another passage (D. 7, 1, 4), observes that for many purposes the usufruct is a part of the dominium. Elsewhere usufruct is regarded as a personal servitude ; but in the Insti- tutes it is taken separately, and mentioned in a manner that suggests contrast with servitude. {Haec de servitutihus et usu- fructu et usu et habitatione dixisse sufficiat.) (J. 2, 5, 6.) A person having the ownership of property in which another has a usufruct, is called simply dominus, or dominus proprietatis nudae ; and that other is called Fructuarius or Usu- fructuarius. The property is called res fructuaria. Quasi- Usufruct. — The above definition requires modification. It apphes to those things only that are not consumed in the use {salva rer'um substantia) ; but a modification was allowed, and a sort of usufruct (which after the usual terminology of the Roman law was called gwasi-usufruct) in things consumed by use was authorised. A usufruct may be established not only in a field or a house, but also in slaves and beasts, and in fact in everything except what is consumed by the very fact of use ; for in this case neither natural reason nor that of the civil law admits a usufruct. In this latter class must be reckoned wine, oil, wheat, and garments ; and closely akin to these is coined money, for by the very act of use in continual exchange it in a way disappears. But for conve- nience sake the Senate resolved that a usufruct even of these things may be established, if only suitable security on that score be given to the heir. If, therefore, a usufruct in money is left as a legacy, the money is paid over to the legatee and becomes his ; but he gives security to the heir to restore a like amount in the event of his dying, or undergoing capitis minuiio. Other property, too, is delivered to the legatee, and becomes his, but only after it is duly valued, and security given that in the event of his dying or undergoing capitis minuiio a sum of money shall be restored equivalent to the value placed on the property. The Senate, therefore, did not create a usufruct of those things ; nor indeed could it; but by exacting security it established a quasi-usufruct. (J. 2, 4, 2.) The date of this Senatus Consultum is unknown. It is posterior to the time of Cicero (Top. 3, 15), and it existed in the time of Sabinus, who lived in the reign of Tiberius. (D. 7, 5, 5, 1.) In a quasi-usufruct, the usufructuary was a true dominus or owner, subject to the duty of restoring the value of the property at a future time. There was thus no true usufruct, but rather an ownership analogous to the dos in the case of res aestimatae. Even debts could, according to Proculus and Cassius, against the opinion of Nerva, be the object of such a quasi-usufruct. When a creditor gave a debtor the usufruct of 398 PERSONAL SERVITUDES. his debt, it was tantamount to a rt mission of interest during the life of the debtor.^ (1>. 7, 5, 3.) A usufruct of money was terminated only in one of two ways, — by the death or capitis deminutio of the quasi-usufrufituary. (D. 7, 9, 7, 1 ; T>. 7, 5, 9 ; D. 7, 5, 10, pr. ) A quasi-usufruct of a servitude, such as a right of way, could not be created according to the strict principles of the civil law, because there could not be a servi- tude of a servitude (quia servitus servitutis esse nonpotest) ; but an action was allowed nevertheless [actio incerti) ; or the same end might be accomplished in another way, by granting the servitude conditionally, so that if the donee died, or suffered a capitis deminutio, the servitude shoiild be surrendered. (D. 33, 2, 1.) In the text, dress {vestimenta) is spoken of as a proper object of a quasi-usufruct ; but TJlpian says that if dress is consumed by ordinary tear and wear, nothing has to be returned by the usufructuary (D. 7, 9, 9, 3) ; and in another passage (D. 7, 1, 15, 4) he treats dress as the object of a proper usufruct, subject only to the condition that if ordinary wearing apparel it must be worn by the usufructuary, and not let for hire. If dress were regarded as the object of a quasi-usufruct, its value would have to be returned ; if as a proper object of a usufruct, nothing would be returned if the dress were fairly worn out. Which view ought to be taken in a particular case would depend wholly upon the intention of the donor. The cautio or security required was the usual one — sureties [Hdejussores). (D. 7, 5, 8.) Rights and Duties. A. Rights of the Usufructuary (Fructuarius). I. Use and Enjoyment. — Generally, the usufructuary has a right to everything fairly included in the words use and pro- duce (msms, fructus), unless there is some limitation in the instrument under which he claims. He to whom the usufruct in a farm belongs, becomes owner of the fruits only if he actually gathers them. Although, therefore, the fruits are ripe when he dies, if they are not yet gathered they do not belong to his heir, but are acquired by the owner. Much the same may be said of the tenant- farmer {colonus). (J. 2, I, 36.) A difference existed on this point between the usufructuary and the bona fide possessor. The latter acquired all the fruits that were separated (separatio), whether by the hand of man or not ; the usufructuary only those that he, or any one for him, gathered (perceptio). (D. 7, 4, 13.) Hence fallen fruit (glans caduca) did not belong to the usu- fructuary unless gathered. (D. 50, 16, 30, 4) So if the fruit was stolen, although the usufructuary had an action against the thief (actio furti), he was not owner, and the condictio furtiva could be brought only by the dominus. (D. 7, 1, 12, 5.) Fruit gathered by the usufructuary before it was ripe was neverthe- less his property. (D, 33, 2, 42 ; D. 7, 1, 48, 1.) USUSFRUCTUS. 399 Apportionment. — K fructuavia died in December, the crop having been previously taken off the ground by her tenant (colonus) in October. The rent vp-as not due till March. Which was entitled to the rent up to March — the heir of the fructuaria or the owner of the farm ? The heir of the fructuaria. (D. 7, 1, 58,pr.) Fructus, being a term of wide generality, conveys an imperfect idea unless it is completed by particulars. Generally, we may say, the usufructuary could take the usus and fructus, and he could not do more. We must now specify, with reference to different objects, what the powers of the usufructuary were. 1. Lands, whether cultivated or not. 1°. Farm Stock. — Ulpian says that unless a contrary inten- tion appeared, the instniments attached to a house or farm were included in the usufruct ; as, e.g., the vessels used in the preparation or storing of wine {dolium, capa, cadus, amphora, seria). (D. 7, 1, 15, 6.) The same jurist states that the usufructuary could only use, not sell, those things. (D. 7, 1,9,7.) 2°. Alluvio. — Paul says that alluvia belonged to the dominus, and not to the usufructuary (Paul, Sent. 3, 6, 22) ; but Ulpian says it goes to the usufructuary ; but other accessions, as an island rising in a river, do not. (D. 7, 1, 9, 4.) 3°. Wood and Timber. — The usufructuary cannot cut fruit- trees (D. 7, 1, 13, 4), nor large trees (D. 7, 1, 11) ; but he may take branches as stakes for his vines, if it can be done without injury to the land. (D. 7, 1, 10.) If the trees are dead or overthrown by the wind, Labco says the usufructuary can take them for the repair of his house, — not for firewood, unless he cannot get firewood elsewhere. (D. 7, 1, 12, 1 ; Vat. Frag. 70.) Greater freedom was given him in dealing with silva caedua. Silva caedua is that which grows, and is cut down periodically; or, according to Servius, what springs from roots or stumps when cut down ; he added that such belonged to the usufructuary. (D. 50, 16, 30, pr.) Certainly this was so, if the revenue of the land was derived from osiers (arundo palus). (D. 7, 1, 59, 2.) Probably the usufructuary was always entitled to such crops, if he kept up the stock. (D. 7, 1, 9, 7 ; Vat. Frag. 70.) 4°. Minerals. — The usufructuary can burn lime or dig for gravel for his house. (D. 7, 1, 12, pr.) He can also work in a husband-like manner, quarries, or clay or sand-pits {lapidicinae, cretifodinae, arenae). (D. 7, 1, 9, 2.) Also he can open or use 4O0 PERSONAL SERVITUDES. when opened, mines of gold, silver, copper, iron, etc., even to the prejudice of the agriculture, if such is a better use of the property. (D. 7, 1, 13, 5; D. 7, 1, 9, 3.) 6°. Bees on the land belong to the usufructuary ; and he has the right of fishing, fowling, and hunting. (D. 7, 1, 9, 1 ; D. 7, 1, 9, 5.) 2. Houses. The usufructuary has complete use of the buildings, subject to the limitations hereafter stated. If they were let when the usufruct began, he is not entitled to the rent (pensio) ; but neither is he bound by the contract with the tenant. If he is obliged to recognise the tenant by the deed of gift, he is then entitled to the rent. (D. 7, 1, 59, 1.) The same rule applies to a farm when let. The usufructuary must not alter the character of the build- ing. He cannot add a wing (D. 7, 1, 13, 7), nor divide a room into new chambers, nor throw several rooms into one (D. 7, 1, 13, 7), nor convert a private dwelling-house into a shop, or stables, or into a pubHc bath (D. 7, 1, 13, 8), even although that were the most profitable use to put it to. (D. 7, 1, 14.) If, however, the owner used the house for business, so might the usufructuary. (D. 7, 1, 27, 1.) The usufructuary cannot even finish an unfinished house (D. 7, 1, 61, 1), nor put a roof on bare walls. (D. 7, 1, 44.) He may open, but cannot close, windows. (D. 7, 1, 13, 7.) He cannot put up a new building unless it is required for his crops or for guarding the land (D. 7, 1, 13, 6 ; D. 7, 1, 73) ; and he cannot pull down any buildings (D. 7, 1, 13, 4), not even those he has himself built. (D. 7, 1, 15, pr.) 3. Slaves. The responsibility of the master for the delicts of his slave remains unimpaired notwithstanding the usufruct, and the usufructuary may even call upon him to transfer the ownership, or pay damage for any delict done by the slave to him or his. (D. 7, 4, 27.) The ofFspring of a female slave is not reckoned among fruits, and so belongs to the owner. For it seemed absurd to reckon a man among fruits, seeing that all the fruits in the world are furnished by nature for man's sake. (J- 2, i, 37.) Ulpian telk us that it was an old question, whether the children of slaves formed an exception to the rule that the young of animals weiefructus, and says that the opinion of Brutus in favour of the exception ultimately prevailed. (D. 7, 1, 68, pr.) Brutus lived hefore Cicero. USUSFRUCTUS. 4OI The usufVuctuary, having a right to the labour of the slave, could inflict moderate chastisement to compel him to work ; but he could not put him to the torture, or lash him, or other- wise impair his value as a wealth-making machine. (D. 7, 1, 66 ; Paul, Sent. 3, 6, 23 ; Vat. Frag. 72.) He must also ,use the slave for the work for which he had been trained, and could not, e.g., turn a musician into a major-domo, or an actor into a bath keeper. (D. 7, 1, 15, 1.) As regards slaves in whom we have a usufruct only, it is the received opinion that all they acquire by means of what is ours or by their own labour is acquired for us ; but that all they acquire on other grounds belongs to their owner. If, therefore, such a slave is appointed heir, or has a legacy left or a gift made to him, it is not I but the owner that acquires the profit. (G. 2, 91.) The question is asked whether we can possess anything or acquire it by use through a slave in whom we have a usufruct, seeing that we are not in possession of him. For, of course, if we possess a man in good faith, we can, without doubt, both possess and acquire by use through him. In regard to both characters, however, we speak in accordance with the distinction that we have just set forth, that only gains made by means of what is ours, or by their own labour, are acquired for us. (G. 2, 94.) The statement of Labeo (Vat. Frag. 71) substantially corresponds with § 91 from Galus; but Labeo makes the distinction turn on the intention of the donor; if the donor intended to give to the usufructuary, then he obtained the gift ; if to the owner, then the owner gets it ; and this distinction is supported by the Digest. (D. 7, 1, 22.) 4. Animals. Among the fruits of animals are reckoned their young, as well as their milk, hair, and wool. And so lambs, kids, calves and foals become at once, by the JUS naturale, the property of him that has the usufruct. (J. 2, i, 37.) The rights of the usufructuary varied according as he received the animals singly, or in a flock or herd. If he received them as individuals and any of them died, he was not bound to replace them (D. 7, 1, 70, 3) ; although in that case he was not entitled to their flesh. (D. 7, 4, 30.) But if a flock or herd was given, he was bound to replace them. (Paul, Sent. 3, 6, 20 ; D. 7, 1, 68, 2.) But if a man has the usufruct in a flock, he ought out of the young to supply the place of those that die, as Julian held ; and also to plant other vines and trees in place of those that die. For he ought to cultivate properly, even as a gooA. paterfamilias would. (J. 2, i, 38.) He was not, however, bound to plant new trees for those overthrown by wind without his fault. (D. 7, 1, 59, pr.) II. Alienation by Usufructuary. — Strictly, the usufructuary could not alienate his interest ; he could not make another person usufructuary ; and probably at first a usufruct was absolutely inalienable. But in later times the usufructuary was entitled 2 C 402 PERSONAL SERVITUDES. to give to another, in whole or in part, his right of enjoyment, provided that person enjoyed it in the name and on account of the usufructuary. (D. 7, 1, 38.) Diocletian and Maximian (a.D. 292) state it as a proposition clear in law, that the iisufruc- tuary could let or sell his usufruct (D. 7, 1, 12, 2 ; Vat. Frag. 41) ; and this, we are elsewhere informed, even against the wishes of the owner. (D. 7, 1, 67 ; D. 7, 1, 13, 2.) If the usufructuary made a gift of his usufruct, he lost it by nonuser if the donee did not use it. (D. 7, 1, 40.) But if the usufruct were sold, the price received was regarded as equivalent to user, and the usufructuary did not forfeit it by the default of the purchaser. (D. 7, 1, 39.) An owner hires a farm from its uBufructuary, and sells the farm to Seius without reserving the usufruct. Does the usufructuary stiU retain the usufruct in the name of Seius ? No, not even if the owner continues to pay the rent ; because Seius gathers the fruit as his own, not in the name of the usufructuary. The remedy of the usufructuary is an action against the owner for breach of contract. The same result follows if the owner lets the usufruct in his own name. But if another than the owner hires the usufruct, and lets it out, the usufruct still subsists. (D. 7, 4, 29.) B. Duties of Usufructuary to the Owner=Rights in personam of the Owner. 1. The Usufructuary must deal with the property as a pater- familias. (J. 2, 1, 38.) The same idea is expressed by saying that the usufructuary must satisfy the judgment of a good man (arbitratu viri boni); a phrase which signifies that no very precise rule could be laid down, but that each case must be judged according to circumstances. (D. 7, 1, 9.) The standard oi diligence required was at all events eqiial to the highest known to the Roman law, and not the lower standard admitted in the case of co-owners. (D. 7, 9, 2 ; D. 7, 1, 65, pr.) The usufruc- tuary was compelled to cultivate the land in a husbandlike manner. He was bound to give the slaves food and clothes according to their condition and standing (D. 7, 1, 15, 2), and also medical attendance. (D. 7, 1, 45.) 2. The usufructuary was bound to do ordinary and moderate repairs, or surrender the usufruct. (D. 7, 1, 64.) If the roof of a house had decayed with age, the usufructuary was not bound to renew it ; but if the owner put on a new roof, the usufructu- ary had a right to use it. (D. 7, 1, 7, 2.) All that the usufruc- tuary could be asked to do was to keep the roof tight ; if he spent more than he was obliged, he could demand the excess from the owner. (C 3, 33, 7.) 3. The usufructuary must pay the burdens on the land, e.g., USUSFRUCTUS. 403 tributum (land-tax paid to the Emperor) ; stipendium (land-tax paid to the aerarium of the people) (D. 7, 1, 52, pr.) ; solarium (annual payment for use of a public place) ; indictio (temporary tax on land) (D. 33, 2, 28) ; sewer-vate {nomine cloacarii) ; high- way rate {ad collationem viae), etc. (D. 7, 1, 27, 3-4.) 0. Rights of Owner. The rights of the owner are practically in abeyance during the continuance of the usufruct, and he must permit every form of enjoyment of the property that does not injure it. (D. 7, 1, 15, 6.) He cannot pull down any house on the land, nor build upon it, without the concurrence of the usu- fructuary. (D. 7, 1, 7, 1.) He cannot surrender a servitude, but he can acquire one, without the consent of the usufructuary. He cannot impose a servitude on the land, even if the usu- fructuary is willing (D. 7, 1, 15, 7), unless it is such as can- not by possibility harm the usufructuary, as a servitude not to raise the house higher. (D. 7, 1, 16.) The usufructuary can- not acquire, but he can retain, a servitude ; and if by neglecting to use a servitude he causes it to be lost, he is liable to pay damages. (D. 7, 1, 15, 7.) On the other hand, an owner could with, but not without, the sanction of the usufructuary, make a burial-place on the land. (D. 7, 1, 17, pr.) A question is raised by the editor of Mr Austin's works (p. 856), whether the owner had a right of entry on the land subjeot to usufruct. The editor takes the affirmative, and quotes the text (D. 43, 19, 3, 5) concerning the interdict de itinere actuque privato. The passage states that in certain circumstances the owner had a right to the use of a servitude (iter) over neighbouring land, which he could assert as well against the usufructuary as against others. By implication, if the owner had a right to use a road leading from his own land, he could enter upon that land. But this passage refers to a road that both owner and usufructuary had used ; and inas- much as the interdict in question was open to one that had no right, but had only, in fact, used the road for thirty days during the year preceding the application for the interdict, all that is proved is, that as a matter of fact the owner had used the road. This being stated as a hypothetical fact in the first part of the passage, throws no light whatever on the question whether the owner had a right to the servitude. Also a, former section (D. 43, 1 9, 3, 4) informs us that although the use of the servitude by the usufructuary kept it alive for the owner, yet this would not in the absence of actual use by the owner give him a right to the interdict. On the other hand, the use of the servitude by tenants or friends was held to be a use by the owner, and to entitle him to the interdict. While the passage from Ulpian (D. 43, 19, 3, 6) must be con- sidered indecisive, if indeed § 4 does not raise a presumption the other way, there are other texts that introduce great difficulty into the question. Ulpian, speaking of ■urns, which, we shall see, is a much more restricted right than usufruct, says that one having the use of a farm can dwell upon it, and forbid the owner coming there. On the other hand, he must give access to the owner's tenant or his agricultural (but not his household) servants. (D. 7, 8, 10, 4.) In another passage (D. 7, 8, 12, pr.), Ulpian still speaking of usus, says that the owner had .a right of entry to gather the crops, 404 PERSONAL SERVITUDES. and that he could even dwell on the land in harvest. If then an owner, entitled to the fructus, and deprived only of the use {usvs), had no right of entry except for the pur- pose of preparing the ground and gathering the crops, it would seem to follow that, if he had no right to the fructus, he had no right of entry whatever. On the other hand, the owner had a right to see that the boundaries of the land were preserved, and for that purpose could send an insularius — a slave employed to look after 0. house — to a house, or a saltuarius — a person employed to watch lands or forests — into a farm or estate. (D. 7, 8, 16, 1.) It would seem, therefore, that the owner had a right of entry so far as to see that his property was not diminished, but whether for other purposes is not at till made out. Investitive Facts. A. Modes of Creating Usufruct. The usufruct, being a fragment of full ownership, might be created in two ways. The owner might give away the usu- fruct, reserving only the naked ownership (nuda proprietas) ; or he might give away the naked ownership, reserving a usufruct for himself. 'J'he former was called datio (dare usum- fructum) ; the latter deductio [deducto usufructu). A third course was open : he might give away, at the same time, the usufruct to one person and the naked ownership to another. All these are exemplified in the first mode. I. Legacy. — Usufruct admits of being separated from ownership, and this happens in many ways- If, for instance, it is left as a legacy, then the heir has the bare ownership, the legatee the usufruct. If, on the contrary, the farm is left as a legacy but the usufruct withheld, then the legatee has the bare ownership, the heir the usufruct. And again, the testator may leave one the usufruct, and another the farm without the usufruct. (J. 2, 4, I.) Following the plan hitherto pursued, we shall abstain from dwelling on this point until we come to the subject of legacy. Mancipation. — Our saying that usufruct admits of in jure cessio only was not too hasty. For although a usufruct may be established by manci- patio, inasmuch as it can be withdrawn when the property is conveyed, yet it is not the usufruct itself that is conveyed. For it is only withheld in con- veying the property, so that one has the usufruct, another the property. (G. 2, 33.) Paul observes that by mancipation, but not by delivery (even of a res nee mancipi), a usufruct could only be reserved (deducto), not transferred. A usufruct of a slave delivered to a pererjrinus could not be reserved. (Vat. Prag. 47.) III. In jure cessio. — Usufruct admits of in jure cessio only. For the owner can thus transfer the usufruct to another, while he himself keeps the bare ownership. (G. 2, 30.) But this of course is so in the case of Italian lands, because those lands admit of mancipatio and in jure cessio. (G. 2, 3I-) Still, since usufruct can be established both in man and in all other animals, we ought to know that usufruct in those can be established even in the provinces by injure cessio. (G. 2, 32.) USUSFRUCTUS. 405 Injure cessio was the mode of creating and transferring incorporeal things by act inter vivos. By in jure cessio an owner could transfer the usufruct, reserving only the naked ownership {dare usum fructnm), as well as give the naked ownership, reserving a usufruct (deduclo usufructu). (Vat. Prag. 47.) IV. Contract (in the Provinces). — But on landed estates in the pro- vinces, if a man wishes to establish a usufruct, or a right of passage on foot or with beasts, or of bringing water, or of raising a house higher, or not raising it lest a neighbour's lights be obstructed, and the like rights, he can do so by agreements and stipulations. For even the landed estates them- selves do not admit of mancipatio or in jure cessio. (G. 2, 31.) But if a man wishes to establish a usufruct otherwise than by will, he ought to do so by agreements (J>acta) and stipulations. (J. 2, 4, i.) The pact was an agreement to create a servitude ; by the stipulation a penalty was added. The penalty was limited to the heir of the person establishing the servitude. " Per te non fieri, neque per heredem tuum, quominus mihi ire agere liceat." (D. 45, 1,2,5; D. 45, 1, 4, 1.) This is an instance of riglits in rem being created by the agreement of the parties and nothing more ; that is, by contract simply. In deahng with dominium a careful distinction had to be kept in view between contract and the investitive facts of dominium, because in every instance the Roman law required something more than contract to create ownership. There was no reason in the nature of things why rights in rem should not be created by contract ; but the Roman legislators, for reasons satisfactory to themselves, chose to require something beyond the assent of the parties in order to transfer ownership. That something more was delivery, a fact that accomplished one important end of the lawgiver — making the ownership notorious. But when the ownership was split up, and it was desired to give a man the usufruct, a difficulty arose ; because if delivery were made, the transaction would assume the ap- pearance of a change of ownership, and thus imperil the naked ownership of the donor; and, moreover, as we shall see pre- sently, it would be unsuitable when the usufruct was con- ditional. Accordingly, in the old civil law, the cumbrous fiction of a lawsuit was adopted in the case of incorporeal things. When the ancient modes of conveyance fell into dis- use, there was no ceremony known to the law that could con- veniently take their place, and hence incorporeal property came to be created and transi'erred by mere agreement of the parties. This change appears in Gaius ; but he confines it to provincial lands (which were res nee mancipi) ; when, however, we come to Justinian, the old conveyances were obsolete, and the proper mode of creating a usufruct in his day was by pact and stipu- 406 PERSONAL SERVITUDES. lation. Justinian, therefore, makes no mention of mancipatio and injure cessio. E. Conditional Usufructs. Paul says (Vat. Frag. 50, 48) that a usufruct may be created to begin at once, and to terminate at a j&xed period prior to the death of the usufructuary, but that it cannot be made to commence at a future day (Vat. Frag, 49) ; and this, he adds, was an infirmity that it shared in common with all those rights that could be enforced only by the old legis actiones. The same passage occurs in the Digest (D. 7, 1, 4, 1), where Paul still stands sponsor, but the voice of Tribonian speaks. In the Digest it is said that a usufruct may com- mence at a future day. It was also finally established that a usufruct might begin from an uncertain event {ex. conditione), or be terminated by any event (ad conditionem). (D. 7, 1, 51 ; D. 7, 1, 54). Titius, whose farm was subject to a usufruct, bequeathed a usufruct of it to Sem- pronius. Was the legacy valid, seeing that a usufruct already existed ? Maecianus said it was, even if the previous usufructuary survived Titius, and enjoyed the usufruct after the heirs of Titius had taken possession. (D. 7, 1, 72.) C. Securities. The various modes of creating usufructs just described operate in favour of the usufructuary only when he has com- plied with an indispensable preliminary. (D. 7, 9, 7.) Every usufructuary must give security, whatever the mode of his appointment. (D. 7, 9, 9, 1.) The form of security was sureties { fidejussor es). (C. 3, 33, 4.) The object of the security was twofold — (1) that the usufructuary would deal with the property so as to satisfy a fair man (honi viri arbitratu) (D. 7, 9, 1, 3) ; and (2) would give back the property when his interest terminated.-' In later times these promises were superfluous ; the law imposed these obligations upon all usufructuaries : but there was an advantage in getting others as sureties, and for mismanagement an action could be brought on the promise before the usufruct came to an end. (D. 7, 9, 1, 5.) Divestitive Facts. But lest the properties should become altogether useless by being always separated from the usufruct, it is held that in certain fixed ways the usufruct disappears, and falls back into the ownership. (J. 2, 4, i.) 1 Uswum se honi viri arlitratu, et cum ususfructus ad eum pertinere desiiKt, restituturum quod inde exstabit. {D. 7, 9, 1, pr.) USUSFRUCTUS. 407 When the usufruct comes to an end, it falls back into the property, and from that time forward the owner of the bare property-rights comes to have full power over their object. (J. 2, 4, 4.) I. Injure cessio. — The man that has the usufruct can, hy making an in jure cessio to the owner, detach the usufruct from himself and merge it in the property. (G. 2, 30.) And again, a usufruct disappears if yielded up to the owner by him that has it. (J. 2, 4, 3.) II. Merger. {Consolidation or comparatio dominii.) — Or, on the contrary, if he that has the usufruct acquires the ownership. This is called merger {consolidatio). (J. 2, 4, 3.) III. And by not using it {non utendo) in the proper way and time, — all these points are settled by our constitution. (J. 2, 4, 3.) A usufructuary that neither by himself, nor by anyone in his name, availed himself of his usufruct, while the period of tisucapio elapsed, anciently lost his rights. (Paul, Sent. 3, 6, 30.) It made no difference that the usufructuary was ejected by force from his land. (D. 43, 16. 10.) Justinian preserved the rule, but altered the time to ten or twenty years in accordance with his changes of the period of prescrip- tion. (C, 3, 33, 16, 1 ; C. 3, 34, 13.) The question naturally occurs, — How is a usufruct lost by lapse of time, when it cannot be gained in that way ? The answer is easy. A usufruct is regarded as simply a burden upon the ownership, and by usucapio the owner gets rid of the burden. It is thus, so to speak, the ownership that is re- gained by usucapio (usucapio libertatis), rather than the usufruct that is lost. IV. The expiration of the period for which the usufruct was granted. This never exceeded the Ufe of the usufructuary, or, in the case of a municipahty obtaining a usufruct, 100 years, the supposed duration of the longest life. (D. 33, 2, 8 ; D. 7, 4, 3, 3 ; C. 3, 33, 3.) But it might be terminated sooner, either by a time having been fixed in the creation of the usufruct, or some event designated which was to terminate its existence. (Paul, Sent. 3, 6, 33 ; D. 33, 2, 30, pr. ; C. 3, 33, 5.) A usufruct is granted to A until B shall attain the age of twenty-one. Suppose B died before reaching that age, is the usufruct at an end ? Justinian decided that it should not, but should last for the period mentioned, if A lived so long. (C. 3, 33, 12, pr.) A grant of a usufruct to A until B shall recover his sanity. In this case the recovery of B destroys the usufruct ; otherwise it endures until B dies, if A so long Uves. (C. 3, 33, 12, 1.) V. A usufruct comes to an end, too, by the death of him that has it, or by his undergoing one of two forms of capitis deminutio, the maxima or the media. (J. 2, 4, 3.) This was the law as settled by Justinian ; but previous to his time even the smallest change of status, as by adoption or arrogation, was fatal (Paul, Sent. 3, 6, 29.) VI. Analogous to this was a singular mode of losing usu- fructs, of which the sting was also taken out by Justinian. According to the rule that a slave can acquire for his master only, not for himself, a slave might become the medium of con- 4o8 PERSONAL SERVITUDES. veying a iisufruct to his master. If afterwards the master sold the slave, the usufruct was extinguished. We have spoken of the slave as a conduit-pipe conveying rights to his master. We may now vary the figure, and speak of him as a chain by which the usufruct was anchored in his master's possession. (D. 7, 4, 5, 1.) Justinian enacted that usufructs should not be destroyed by the death, manumission, or alienation of the slaves by whom they were acquired. The same rule was applied to acquisitions through a son under potestas ; and Justinian, making a deeper change, decided that even if the father died or lost his liberty the usufruct should not be lost, but should survive to the son — for whom, indeed, it must have been from the first intended. (C. 3, 33, 17.) VII. Destruction or alteration of the essential character of the property. Interitus or mutatio rei. Nay, further, it is agreed that if a house is consumed by fire, or falls in either by earthquake or by its own defects, the usufruct is extinguished, nor can any be claimed even in the site. (J. 2, 4, 3.) For it is a right over an external object ; take away that, and the usufruct itself must needs be taken away. (J. 2, 4, pr.) The owner builds on ground subject to the usufruct. This so alters the character of the place that the usufruct is gone, and the usufructuary is left to his action for damages. {D. 7, 4, 5, 3.) Usufruct of a pond. The pond dries up. The usufruct is extinguished. (D. 7, i, 10, 3.) Legacy of a wood. The trees are cut down, and the land sown. The usufruct is at an end. {D. 7, 4, 10, 4) A gift of usufruct of silver. It is made into a vase. The usufruct is at an end. (D. 7, 4, 10, 5.) VIII. By original defectibility of title. If the estate of the donor was liable to be destroyed by a cause prior to the usu- fruct, and it so perishes, the usufruct is also extinguished. A testator leaves a usufruct of a farm to a legatee when a certain condition is fulfilled. Before that time the testator dies, and the heir gives a usufruct of the same land to another. Afterwards the condition is fulfilled : the second usufruct is at once terminated. (D. 7, 4, 16.) Transvestitive Facts. But if the man that has the usufruct yields it by z'ft jure cessio to a stranger, he still keeps his rights none the less, for the process is inoperative. (J. 2, 4, 3 ; G. 2, 30.) The same rule prevailed with Justinian, in whose time pacts and stipulations had taken the place of the injure cessio. But, as has been already explained, the prohibi- tion was more technical than real ; because the right of the usufructuary to part with the whole of his enjoyment of the land, with or without a price, was incontestable. Still, in strictness, we must say that there was no transvestitive fact. usus. 409 Remedies. A. Eights and Duties. I. Use and enjoyment. The usufructuary had the same remedies as the owner ; as, e.g., the actio legis AquUiae against the owner as well as all the world (D. 9, 2, 12) ; utUis actio aquae pluviae arcendae (D. 39, 3, 22, pr.) ; the actio furti (D. 47, 2, 46, 1) ; actio vi bonorum raptorum (D. 47, 8, 2, 23) ; interdict de arhorihus caedendis (D. 43, 27, 1, 4) ; interdict de vi et vi armata (D. 43, 16, 3, 13) ; interdict quod vi aut clam. (D. 43, 24, 12.) Generally, in so far as the usufructuary had rights to the enjoyment of the property as against the owner and all other men, he could use the same actions and interdicts as the owner. II. Duties of iisufructuary to owner. The owner [dominus] may sue the sureties of the usufructuary, and has against the usufructuary the same remedy as against other persons. Thus, for misconduct to slaves he may have the actio servi corrupti, actio iiijuriarum, or actio legis AquUiae. (D. 7, 1, 66.) B. Investitive Facts. I. Actio confcssoria de usufructu. — This was the action by which a usufructuary could establish his usufruct against the owner or any possessor, — uti fruijus sibi esse. (D. 7, 6, 5, pr.) It was also the proper action against the owner of adjoining land if he interfered with the enjoyment of a servitude to which his land was subject in favour of the usufructuary land. Servitudes were attached to the dominium, and it was con- sidered a difficulty that a usufructuary, as such, should be entitled to n servitude. The way in which it was accomplished was not by claiming the servitude, but by affirming that the owner of the adjoining land interfered with the enjoyment by the usufructuary of his laud. (D. 7, 6, 1, pr.) The burden of proof rests upon the usufructuary ; .and if he succeeds he gets a JTidgment substantially the same as in a vindicatio. The judge will order the possessor to give up the land ; if he refuses wilfully, or has disabled himself from obeying the judgment, then to pay such a sum as the plaintiff has sworn is the value of the usufruct ; if he is unable, through his own carelessness only, not through fraud, then the value of the usufruct is to be settled by the judge. 0. Divestitive Pacts. 1. Actio Negatoria de Usufructu. — This is the corresponding action by which the owner may establish the freedom of his property from a usufruct, and, if he is not in possession, recover the crops that the possessor has gathered. (D. 7, 6, 5, 6.) USUS. Definition. — Use (usus) is a usufruct without the produce (fructus) (D. 7, 8, 1, 1 ; D. 7, 8, 14, 1) ; and is confined to the personal wants of the usuary (usuarius). The exact difference between use and usufruct appears in considering the rights and duties of the usuary. Rights and Duties. A. Rights of the Usuary. I. Use and enjoyment. I. Fewer rights are implied in use than in usufruct. For he that has the bare use of a farm is understood to have nothing beyond the use. for his daily needs, of the vegetables, fruits, flowers, hay, straw, timber. And he 4IO PERSONAL SERVITUDES. ■may stay on that farm only so long as he is not an annoyance to the owner, or a hindrance to those that carry on the farm work. (J- 2, 5, i.) In addition to dwelling on the land, the usuary has, within the limits mentioned by Justinian, the right of walking or driving on the land. There was considerable diversity of opinion as to the exact effect of a grant of the use of land. Sabinus and Cassius said the usuary might take wood for ordinary consumption, and the apples, vegetables, and flowers. Nerva added the use of the straw, but not the oil, grain, or fruits. Proculus and Labeo went further. They said he could take the produce of the farm for the maintenance of himself and family, and even for his guests and friends. TJlpian favoured this view as more in harmony with the motives of the donor of the use. (D. 7, 8, 12, 1.) Paul adds that he might take provisions for the year's use, but only in the country ; and that he could carry any apples, flowers, or firewood to his town residence. (D. 7, 8, 15, pr.) 2. Again, he that has the use of a house is understood to have rights up to this point only ; — he may dwell in the house himself, but he cannot trans- fer this right to another ; and it is scarcely quite admitted that he may receive a guest. But he may dwell there with his wife and children, as well as his freedmen and other free persons that he employs no less than his slaves. And similarly, if it is a woman that has the use of the house, she may dwell there with her husband. (J. 2, 5, 2.) Although there seems to have been some doubt whether a woman had the same extent of use of a house, yet ultimately it was held that the rights were the same for men and women (D. 7, 8, 6), provided the guests were such as could with a regard to propriety dwell with the women. (D. 7, 8, 7 ; T>. 7, 8, 4, 1 ; D. 7, 4, 22.) 3. And again, he that has the use of a slave can use his labour and service only in person. But he is not allowed to transfer his rights to another in any way. (J. 2, 5, 3.) 4. The same rule applies to beasts. (J. 2, 5, 3.) But if it is the use of cattle or of sheep that is left as a legacy, he that has the use can use neither the milk nor the lambs, nor the wool, for all those are reckoned among fruits, but onlv the cattle to manure his fields. (J. 2, 5, 4.) II. Powers of alienation. And he cannot allow another the rights he has, either by selling them, or letting them out, or by giving them for nothing ; whereas he that has the usufruct can do all these. (J. 2, 5, i.) B. Duties of the Usuaiy. The nsuary was not, as a rule, bound to repair, but only to share the expense of repairs with the owner. If, however, the property gave no fructus, and only the use of it could exist, the usuary was bound to repair to the same extent as a usufructuary. (D. 7, 8, 18.) The usuary also was forbidden to change the character of the property, even to improve it. (D. 7, 8, 23.) Investitive Facts and Divestitive Facts. In tlie very same ways in which the usufruct is established, the bare use is HABITATIO — PRECARIUM. 4I I commonly established too. And it comes to an end in those very same ways in which the usufruct also ceases. (J. 2, 5, pr.) Seoui-ity is required, as in the case of the usufructuary. The Remedies are precisely similar to those in the case of usufruct. HABITATIO. Definition. — Papinian observes that the right of habitation is scarcely to be distinguished from the right of using a house. (D. 7. 8, 10, pr.) Anciently it was supposed to be a grant for one year only, but it was ultimately put on the same footing as usufruct — namely, for life. (D. 7, 8, 10, 3.) But if habitatio is left as a legacy to any one, or is established in any way, it seems to be neither use nor usufruct, but as it were a special right. Those that have this right for their benefit, we have allowed by our published decision, in accordance with Marcellus' opinion, not only to live in the place themselves, but to let out the right to others. (J. 2, 5, 5.) Another characteristic is that it was not lost through non- user or capitis minutio. (D. 7, 8, 10, pr.) OPERAE SERVORUM. This also is scarcely distinguishable from the use of slaves. Like habitatio, it was not lost by non-user (D. 33, 2, 2) or capitis minutio. (D. 7, 7, 2.) PRECARIUM. Definition. — Precarium is a tenancy-at-will of land, or of a servitude (D. 43, 26, 15, 2), or of a moveable. (D. 43, 26, 4, pr. ; D. 43, 26, 1, pr.) The person to whom a thing was given, pro- cario, was entitled to the use and enjoyment of it so loDg as the owner pleased, but no longer. (D. 43, 26, 12, pr.) Rights of Tenant. — The tenant of land was a possessor, and as such was protected from all persons, except the owner, in the use and enjoyment of it. (D. 43, 26, 15, 4.) As in the case of the usufructuary, he could not claim the offspring of female slaves. (D. 43, 26, 10.) Duties of Tenant. — (1.) To retain possession until it is asked back by the owner, and then to give it up. (D. 43, 26,8, 3.) (2.) To answer for wilful mischief done to the property while in his possession, but not for negligence {culpa). Thus if he lost a servitude attached to the land by non-use, he was not 412 PRAEDIAL SERVITUDES. bound to give compensation, unless he wilfally abstained from iTsing it. (D. 43, 26, 8, 5.) Investitive Facts. — All that was requii-ed was the posses- sion of the thing with the consent of the owner. (D. 43, 26, 9 ; D. 43, 26, 2, 3.) Divestitive Facts. — (1.) By the lapse of the time for which the agreement was made, if any time was mentioned. (D. 43, 26, 5.) (2.) By the happening of an event on the occurrence of which it was to be revoked. Thus, if on a sale of land the buyer was allowed to enter as a tenant-at-will until the price should be fully paid, and the buyer failed to pay at the time agreed upon, the seller could revoke the tenancy and turn out the buyer. (D. 43, 26, 20.) (3.) The death of 'the tenant, but not necessarily of the owner, put an end to the tenancy. (D. 43, 26, 12, 1 ; D. 43, 26, 8, 1.) Remedies. — a. The tenant's remedies against third parties were the interdicts and actions open to a bona fide possessor. B. For rights of owner. I. Interdict de precario. (1.) This interdict was restitutory — to compel the tenant to give back possession to the owner. (D. 43, 26, 4, 2.) (2.) It was not limited by a year's prescription. (D. 43, 26, 8, 7.) II. Also an actio in factum praescriptin verbis or condictio incerti might be brought by the owner for the same purpose. (D. 43, 26, 2, 2 ; D. 43, 26, 19, 2.) For the meaning of this form of action see Book II., Div. I., Subdiv. I., Equitable Contracts. DEFINITE RIGHTS IN REM TO THINGS. III. — Praedial Servitudes. Definition. A praedial servitude is a definite right of enjoyment of one man's land by the owner of adjoining land ; including in the term "land" also houses. The land subject to this right is called praedium serviens, and the land to which the right is attached is called praedium dominans. These servitudes are called praedial, because they cannot exist without landed estates {praedia). For no one can acquire a praedial servitude in town or country unless he has landed estates ; nor yet become subject to one unless he has landed estates. (J. 2, 3, 3.) GENERAL CHARACTERISTICS. 413 The lands must adjoin each other (vicina praedia). (D. 8, 3, 5, 1.) The exact degree of proximity, however, is regulated by the nature of the particular servitude. A servitude, the object of which is to restrict a neighbour from adding to the height of his house, is valid, although there ia a house between ; because so long as the inter- mediate house is not built higher the servitude is effective. (D. 8, 5, 4, 8 ; D. 8, 5, 5 ; D. 8, 2, 36 ; D. 8, 2, 38.) A waggon road {via) is good as a servitude, although it is interrupted by a river, if there is a ford or bridge. (D. 8, 3, 38.) A right of drawing water [aquae haustus) may exist, although between the servient and dominant land there lies a public road or river. (D. 39, 3, 17, 2.) But a right of leading water {aquae ductus) could not exist unless all the land through which the water flowed was subject to the servitude. (D. 8, 3, 7, 1.) A praedial servitude is attached to the land in this sense, that it cannot be transferred by the owner of the dominant land to the owner of any other land. Until extinguished in one of the ways hereafter enumerated, a servitude passes with the laud to every possessor. (D. 8, 4, 12 ; D. 8, 5, 20, 1.) _ Praedial servitudes are restricted in their enjoyment to the land to which they are attached. Labeo thought that an owner of land having a right to lead water from other land (aquae ductus), could allow the owners of neighbouring lands to enjoy it as well. But the opinion of Proculus prevailed, that only as much could be taken as was required for the farm to which the right of water attached. (D. 8, 3, 24.) Similarly, if to a farm is attached the right of taking sand or lime from other land, no more can be taken than is wanted for that farm. (D. 8, 3, 5, 1.) The owner of two adjoining properties sold the upper one, making it a condition of sale that the buyer should have permission to make a, ditch to pass on water from the higher land. The buyer received water from stiU higher lands, and wished to pass it through his ditch to the lower ground. Could he do so ? No ; he cannot send down more than is necessary to dry his own land. (D. 8, 3, 29.) All praedial servitudes ought to be capable of enduring as long as the land to which they are attached. Hence, strictly, water can be led only from a fountain, or other permanent source (D. 8, 3, 9) ; not from a pond that is liable to dry up {stagnum), or even a pond that does not dry up (lacus). (D. 8, 2, 28, pr.) But by a rescript of the Emperor Antoninus it was held that a right to water might exist even from an artificial reservoir. (D. 8, 4, 2, pr. ; D. 8, 3, 9, pr.) A praedial servitude is indivisible; it must be enjoyed wholly or not at all. (D. 8, 1, 11.) 414 PRAEDIAL SERVITUDES. If a person to whom a servitude belongs dies, each of his several heirs has a right to the servitude. (D. 8, 1, 17.) A person alienating part of an estate cannot impose a servitude on it, unless tne portion of land or houses is treated as a separate whole. (D. 8, 4, 6, 1.) If the owner of a servitude acquires only a part of the land burdened with the servitude, or the owner of the land burdened acquires only a portion of the dommant land, the servitude is not extinguished, although it could not have been so created. (D. 8, 1, 8, 1 ; D. 50, 17, 85, 1.) Urban and Rural Servitudes. What is a praedium rusticum or praedium urbanum ? ^ For the purpose of the law of servitudes the distinction seems to be drawn thus : — Land in the country is used chiefly for agricul- ture, and for building only as subservient to agriculture ; land in towns is used chiefly for building, and for cultivation only as an accessory of building. Hence a servitude that afiects chiefly or only the soil, and could exist if no houses were built, is called a rural servitude {jus rusticorum praediorum) ; and a servitude that affects chiefly or only houses, and could not exist without houses, although it may also affect the soil, is an urban servi- tude {jus urbanorum praediorum). ' Hence an urban servitude may exist wholly in the country, and a rural servitude wholly in the town. A right to rest a beam or joist on a neighbour's wall {jus tigni immittendi) is an urban servitude, although it be in the country ; and a right of way to a house is a rural servi- tude, although it be in a town. The importance of the distinc- tion is centred in two points, one of which, however, is only of antiquarian interest. Urban servitudes were res nee mancipi; rural servitudes in Italy were res mancipi. Another difference more lasting will appear when the nature of these servitudes is more particularly considered. Urban servitudes are all, or nearly all, negative ; rural servitudes are all, or nearly all, positive. This makes a difference in regard to the loss of the servitude by non- use. A negative servitude can be lost only by an adverse act of the owner of the land that owes the servitiide ; the servitude consisting in his not doing such act. An afiirmative servitude must be kept alive by the acts of the person entitled to it, and is lost by abstinence from such acts. But this point must be again referred to. ^Praedium at first seems to have meant land mortgaged to the State (G. 2, 61), but later it was a nomen generate, and included both ownership {arjer) and possession {possessio). (D. 50, 16, 115. ) 'Servitutes pi-aedwrimi aliae in solo, alias in supcrficie consistunt. (D. 8, 1, 3, pr,) rural servitudes. 415 Rights. An account of the rights of which servitudes consist is simply an enumeration and statement of the various servitudes. (a.) Rural Servitudes {servitutes rusticorum praediorum). Over country estates the rights are these ; — Her, actus, via, aquae ductus. (J. 2, 3, pr.) Among the servitudes over country lands some think we may rightly reckon the right of drawing water, of driving cattle to water, of grazing, of burning lime, of digging sand. (J. 2, 3, 2.) I. Rights of way. 1. Iter; 2. Actus; 3. Via. Iter is the right to pass, — for a man that is to walk ; not to drive a beast or a carriage. Actus is the right to drive either a beast or a carriage. Therefore he that has iter has not actus; but he that has actus has iter also, and can use the road even when he is not driving a beast. Via is the right to pass whether driving or walking ; for via includes both iter and actus. (J. 2, 3, pr.) In the absence of such a servitude, no one had a right to walk or pass over another's land. (C. 3, 34, 11.) The most extensive right of way (via) included the right of drawing stones and wood, and heavy-laden waggons. By the law of the XII Tables, the road must be 8 feet in width and 1 6 feet at the turnings (D. 8, 3, 8) ; unless the parties agreed upon any other width. (D, 8, 3, 13, 2.) If, however, the road as agreed upon was not of sufficient width, although it was called via, it was held to be either iter or actus according to its dimensions. (D. 8, 1, 13.) 4. A right of passing over (_/«« navigandi) a permanent lake be- longing to another person to one's own land or house, was a recog- nised servitude, analogous to a right of way. (D. 8, 3, 23, 1.) II. Rights to water. 1. Leading water (aquae ductus). Aquae ductus is the right of leading water through another's land. (J. 2, 3. pr-) Labeo said this servitude could be established only when there was an existing and known supply of water, but Paul held that a servitude might be created to search for water. (D. 8, 5, 21.) The owner of the servient land could not keep back the water, nor refuse permission to make the necessary con- structions for leading it off. (C. 3, 34, 10.) As a rule, the water must be led off in pipes (fistulae) ; but by special agree- ment stone channels might be allowed. (D. 39, 3, 17, 1.) The quantity of water that could be taken was determined 4l6 PRAEDIAL SERVITUDES. in the absence of agreement, by custom, not by the wants of the land for which the servitude was granted (C. 3, 34, 12) ; but so much could not be taken as to starve the land from which it came. (C. 3, 34, 6.) If custom sanctioned it, the water might be used for irrigation. (C. 3, 34, 7.) If, at the granting of the servitude, no special track were marked out for the pipes, the owner of the servitude could select his own course (D. 8, 3, 21) ; but having done so, he could not of his own motion alter it. (D. 8, I, 9.) The owner of the servitude had a right also to cleanse and repair the aqueduct. (D. 43, 21, 1, pr.) The water may be either perpetual {aqua cottidiana), or used only in summer {aqua aestiva). (D. 43, 20, 1, pr. ; D. 43, 20, 1, 29.) 2. Drawing water from a well or fountain {aquae haustus). This is a right to go upon another's land, and draw water from his fountain. The right to keep the fountain in repair was included. (D. 43, 22, 1, 6.) In reference to this servitude, an example may be quoted to show that it need not be praedial ; and the question whether it was so or not must be deter- mined by the terms of the grant. The presumption was that it was a praedial servitude. (D. 8, 3, 20, 3.) " Lucius Titius to Gaius Seius, his brother, greeting. From the water flowing into the fountain that my father constructed on the isthmus, I grant and concede to you gratuitously a rill, to be led either into the house you hold in the isthmus, or wherever you please.'' This was held to be a personal grant, and not to go to the heirs of Gaius Seius, or the purchasers of the house on the isthmus. (D. 8, 3, 37.) 3. Watering one's cattle on another's land (pecoris ad aquam appulsus). This, of course, includes the right of leading the cattle on to the servient land {actus). In this case, again, the question was one of intention ; whether the privilege was con- fined to the individual to whom it was given, or was attached to his land, so as to go to his heirs or a purchaser of the land. (D. 8, 3, 4.) 4. A right of passing on water — the converse of aquae ductus — aquae educendae. (D. 8, 3, 29 ; D. 8, 5, 8, 5.) III. Right of pasture {jus pascendi). This was a right to put one's cattle to pasture on another's land. It might be either praedial or personal, like the right of drawing water. (D. 8, 3, 4.) Several owners of separate lands bought a right of pasture on pasture-land. This right was enjoyed by several of their successors ; and finally some of them sold their lands. Had the purchasers the right of pasture ? in other words, was the servitude URBAN SERVITUDES. 417 praetlial ? Yes, if there was nn agreement to the contrary. This seemed the proper inference to be drawn from all the facts. (D. 8, 5, 20, 1.) This right must be carefully distinguished from compascuus ager, which is land belonging to a number of owners for the purpose of joint pasture. IV. Other praedial servitudes. The instances that have been given were the most common examples of praedial servitudes ; but there were many others, which need only be referred to : — 1. A right of quarrying stones for the use of one's land from the land of another {jus lapidis eximendae). (D. 8, 4, 13, 1.) 2. A right of digging for sand {jus arenae fodiendae) or chalk {oretae eximendae). 3. A right of burning lime {jus calcis coquendae). 4. A right of cutting silva caedua for stakes to vines. ( D. 8, 3, 6, 1 ) (b.) Urban Servitudes {jura urbanorum praedioruni). Over town estates the servitudes all attach to buildings. And indeed they are called servitudes over town estates because all buildings are called town estates, even country houses. Now the servitudes over town estates are these : the servitude of supporting the weight of a neighbour's house ; of allowing a neighbour to run a beam into one's wall ; of receiving or not receiving the raindrops or the water that flows from a neighbour's house into one's own house or yard ; and of hindering a man from raising his house too high so as to obstruct a neighbour's lights. (J. 2, 3, i.) 1. The servitude of support to a building {oneris ferendi). This servitude exists when one house rests upon a wall or pillars belonging to another. This is the only case where the duty of repairing was thrown upon the owner of the servient land. (D. 8, 2, 33.) 2. The servitude of supporting a beam or joist {tigni immit- tendi). This is simply inserting beams in the wall of another's house for the purpose of a covering to a walk alongside the wall, or for additional security. It may be established either with reference to existing beams or future constructions. (D. 8, 5, 14, pr.) The owner of the wall cannot be compelled to maintain it in repair. (D. 8, 5, 8, 2.) 3. Stillicidii vel Jluminis recipiendi vel non recipiendi. Stilli- cidium is the dropping of water from the tiles of a house ; flumen is when it is collected and passed on by a gutter. In regard to this water two different rights may exist under different cir- cumstances. The adjoining land may be in want of water for irrigation or the like, and may secure a right to the supply of the rain water from a neighbour's house ; or the owner of a house may wish to get rid of the water that falls on his house. 2 D 41 8 PRAEDIAL SERVITUDES. The servitude of receiving the water (stillicidii recipiendi) forbids the owner of the servient land from building so high as to interfere with the due reception of the rain water. On the other hand, the house from which the rain falls may be the servient land, and a servitude may exist compelling the owner of it to allow the water to pass ou to a neighbour's land. (D. 8, 2, 20, 3 ; D. 8, 2, 20, 6 ; D. 8, 2, 41, 1 ; D. 8, 2, 21.) 4. The servitude altius non tollendi prevents a house being in- creased in height. (D. 8, 2, 12.) This is easily understood, but another servitude, altius tollendi, has given great trouble to the commentators. Every owner had a right to build as high as he pleased, although he thereby shut lip his neighbour. (D. 8, 2, 9 ; C. 3, 34, 8 ; C. 3, 34, 9.) Where, then, is the room for a servitude or special grant by which an owner should be able to exercise that right ? One suggestion is, that a local custom might prevent houses being built be- yond a certain height. Thus Augustus enacted that at Kome houses should not exceed 60 feet, and Nero passed a similar law. Severus and Antoninus, in speaking of the building of a bath, say it must not exceed the customary height. (0. 8, 10, 1.) But if by a local or general law houses were restricted to a certain height, it is difficult to see how a dispensation from such a law could be given by one proprietor to another, and such a dispensation the right dUius tollendi would be. Another explanation that has been offered is thai jus altius tollendi was applied to a tenement that had been formerly subject to a jus altius non tollendi^ and had been re- lieved from it by prescription (usucapio lihertatis). According to this view, the expres- sion jus altius toUendi is not accurate, for by prescription no jus is acquired, only the unfettered dominion is recovered. The jus altius toUendi, like the jus aedificandi, is merely part of the rights of ownership. 5. Lights and prospect {lumina, prospectus). In the exercise of his right of building on his own land, one might shut out the light or view of his neighbour. To prevent this, a servitude, the object of which was to prevent such a building, might be created {ne luminihus officiatur, et ne prospectui offendatur). (D. 8, 2, 15 ; D. 8, 2, 4.) This servitude prohibited the shutting out of light by trees as well as by buildings. (D. 8, 2, 17, 1.) It applies not only to existing windows, but to those made sub- sequently to the creation of the servitude. (D. 8, 2, 23, pr.) Lumen is free vision to the sky, prospectus is free vision over lower grounds. (D. 8, 2, 16.) Another kind of right existed that has been the subject of dispute — the right to open windows in a wall where otherwise it would be forbidden. (D. 8, 2, 4.) It is to this that the rescript of Antoninus and Verus refers, which says that when no servitude of Hghts {lumina) exists, the owner can build, leav- ing the customary space between the erection and the next house. (D. 8, 2, 14.) CREATION OF SERVITUDES. 419 0. Right of occupying space above another's land {jus pro- jidendi and protegendi). The rule of law was, that to the owner of the soil belonged all the space above the soil, and therefore anything overhanging from a neighbour's house above his land would be, in the absence of a servitude, an infringement of his rights. The projections here referred to are balconies (maeniana) and the eaves of houses (suggrunda), which do not rest on the wall of the neighbouring proprietor, but simply overhang his groiind. The right to have such projections constituted the jus projiciendi. (D. 50, 16, 242, 1.) Protectum (hence jus protegendi) is something projected to cover a wall. (D. 9, 3, 5, 6.) 7. Cloacae mittendae, the right of passing a sewer through or below another's ground. The owner of the sewer had the right to cleanse or repair the sewer. (D. 43, 23, 1, pr.) Investitive Facts. A. Modes of Creating Servitudes. Gains says that servitudes (praedial) are acquired in the same way as usufruct. (D. 8, 1, 5, pr.) 1. Rights over urban estates can be created by zn jure cessio only ; over country estates by mancipatio also. (G. 2, 29.) 2. Usucapio. In the first place, it is alleged that incorporeal things cannot be acquired by usucapio, because they do not admit of physical possession. (D. 41, 1, 43, 1.) But Cicero speaks of the usucapio of aquae ductus, iter, actus, etc. A law, however, passed perhaps in the time of Tiberius (lex Scribonia), abolished usucapio of incorporeal things, unless simply as appur- tenances of land so acquired. (D. 41, 3, 10, 1.) The extinction of servitudes by non-use was not, however, taken away by this law. (D. 41, 3, 4, 29.) 3. Prescription. There is no question, however, that at least in the time of Justinian servitudes could be acquired by prescription in the same way as immoveable property. (C. 7, 33, 12.) In the Digest, several passages state that long possession (bona fide) gave a good title (D. 39, 3, 26 ; C. 3, 34, 1 ; C. 3, 34, 2) ; and a fortiori immemorial possession. (D. 43, 20, 3, 4.) While there can be no doubt that ser- vitudes could be acqiured by prescription, it is not so clear what the time was ; but, at any rate, after Justinian it may be assumed that servitudes were subject to the same rules as immoveables. The claimant was not bound to show that his exercise of the servitude began with title, but he had a 420 PRAEDIAL SERVITUDES. utili^ actio, in which it was only required to prove that he had in fact enjoyed the servitude for so many years neither by force nor by stealth, nor by leaVe {nee vi, nee elam, nee preeario). Bona fides was not required. (D. 8, 5, 10, pr.) 4. Delivery of possession, reserving a servitude. The owner of two houses, in delivering one to a purchaser, may make it a condition of sale that the unsold house shall have a servitude as against the house sold, or may give a servitude to the house sold against the house not sold. (D. 8, 2, 34 ; D. 8, 4, 6, pr.) By express agreement, any proper servitude can be reserved {recipere servitutem.) (D. 8, 4, 10.) 5. If any one wishes to establish any such right for his neighbour, he ought to accomplish it by agreements [pacta) and stipulations. (J. 2, 3, 4.) As regards negative servitudes, whioli consist merely in a prohibition of an owner doing something he had a right as owner to do, there could be nothing beyond the mere agreement after the old forms of mancipatio auA cessio injwre fell into desuetude. But in the case of a right-of-way, or the like, the essence of which was the authorisa- tion to the owner of it to do what otherwise he could not lawfully do, ah actual user of the right would naturally take place, and was essential in order to enable him to employ the Interdicts (D. 8, 1, 20) or the actio Publiciana. (D. 6, 2, 11, 1.) TJlpian, indeed, seems to speak of traditio as an alternative mode of constituting praedial ser- vitudes. (D. 6, 2, 11, 1.) By traditio he means user of the servitude with the consent of the owner of the servient land. This, however, was clearly not essential to a jus praediorum ; but only to the employment of Interdicts. When servitudes were established by cessio in jv/re, there was always some risk of failure through mistakes in the formalities, but as the Interdicts depended upon actual use, they were free from all such difficulties. 6. A man can also in his will bind down his heir to raise his house no higher, lest he should obstruct the lights of a neighbour's house ; or to suffer that neighbour to run a beam into his wall ; or to receive his raindrops ; or to suffer him to go across his farm, or to drive beasts, or to lead water from it. (J. 2, 3, 4.) B. Conditional Servitudes. Strictly a servitude was absolute ; it could not be created to date from a future day or event, nor be limited in its duration ; but if such limits were agreed upon, they formed a ground of defence {exceptio doli mali) if the servitude were sued for in disregard of them. Practically, therefore, sucli limits could be imposed. (D. 8, 1, 4, pr.) The degree of enjoyment {modus) was subject to be varied by agreement. Thus, a road might be granted only for a certain kind of vehicle, or for loads not exceeding a certain weight. (D. 8, 1, 4, 1 ; D. 8, 1, 4, 2.) Also it might be limited to use on alternate days or between specified hours. (D. 8, 1, 5, 1 ; D. 8, 4, 14.) RESTRICTIONS. 42 1 C. Restrictions on the Creation of Servitudes. 1. An owner cannot have a servitude over his own land {nulli res sua servit). It would be absurd to say that an owner, who as such has every right of use and enjoyment, had in addition through a servitude one definite or particular right of use or enjoyment. The rule is equally applicable to co-owners, although with less convenience: and if any co-owner desires to have some particular kind of enjoyment secured to him, he can do so only by resorting to a partition. (D. 8, 2, 26.) 2. The right contained in a servitude imposes on the owner of the land subject to the servitude only a negative duty. The duty it casts upon the owner is either not to do something, i.e., to abstain from exercising a right, or to forbear hindering another from doing something which otherwise he would have a right to forbid.^ If the servitude consists in not doing (in non faciendo), it is said to be negative {servitus negativa); if it consists in forbearance (in patiendo), it is said to be affirmative (servitus affirmativa), and means permission to do acts that would otherwise be unlawful. A right of way is an a^rmative servitude. The owner of the servient land is bound to suffer the owner of the dominant land to walk on his land. A servitude of lights or prospect is negative. The owner of the servient land is bound not to do anything to shut out his neighbour's lights or view. In one instance, and in only one, a positive obligation was added to the purely passive conduct required from the owner of land subject to a servitude. A person whose wall or pillars were used to support another man's building, might, if it was agreed upon, be obliged not merely to suffer the superstructure to rest, but also to repair the wall. This result was not reached without controversy. GaUus denied that an obligation to repair could be thrown upon the owner of the wall or other support, because a servi- tude could not require any positive act {in faciendo) ; but the contrary opinion, sup- ported by Servius, was finally established. (D. 8, 5, 6, 2.) In this case, a right in personam is added to, and made to go along with, the servitude. As a relief to the ovraer of the subject land, he was allowed to surrender the foundations, if he did not wish to repair them. This case is strictly an exception, for in the analogous servitude of inserting joists or beams in another's wall, no such obligation to repair could be imposed. (D. 8, 5, 8, 1.) 3. A servitude cannot be merely burdensome ; it must be also beneficial to the possessor of the servitude. At) agreement that A shall not go over a particular part of his own land, or that A shall not search for water in his own land, is void. (D. 8, 1, 15, pr.) 4. There cannot be a servitude of a servitude (servitus servitutis esse non potest). This rule would prohibit a person bequeathing to a legatee a usufruct of a right of way ; but in 1 Servitutum non ea natura est, ut aliquid faciat quia, sed ut aliqwid patiaiur, aut nonfaciat. (D. 8, 1, 15, 1.) 422 PRAEDIAL SERVITUDES. such a case the heir was bound to permit the legatee to enjoy the right of way, if the legatee gave security to renounce all claim to it on his death. The remedy of the legatee was an actio incerti. (D. 33, 2, 1.) Titius has a right of leading water {aquae ductus) through several estates. Not any of the owners of those estates, nor any neighbour, can enjoy the right of drawing water (aquae haustus) from the channel. By special agreement, however, that right could be granted by Titius ; but such a right would not be given to them as owners or neighbours, and therefore would not strictly be a servitude. (D. 8, 3, 33, 1.) Gains has the usufruct of land to which is attached a right of way over the land of Maevius. Gaius, inasmuch as his usufruct is itself but a servitude, cannot bring the usual action for the vindication of servitudes, but if Maevius or any one else molests him in the use of the road, he can sue by the interdict uti possidetis, on the ground that such molestation is an infringement of his right to the use of his land. (D. 7, 6, 1, pr.) Divestitive Facts. A praedial servitude was not lost by the death or capitis deminutio of the person to whom it was granted. (D. 8, 6, 3.) 1. Surrender of the servitude (remissio). This may have been done in olden times by the cessio in jure, but when that mode fell into disuse it was done by simple agreement. (D. 8, 3, 34, pr.) The remission might be tacit, as by permitting any act that destroyed the servitude ; e.g., blocking up a wall, or building so high that the raindrops (stillicidia) could not fall. (D. 8, 6, 8, pr.) 2. Merger ( Co n/wsio). — Inasmuch as a servitude was a single detached enjoyment, it followed that when the person to whom a servitude was due became owner of the land on which the servitude was imposed, the greater swallowed up the less. (D. 8, 6, 1.) So complete was the extinction, that even if the lands were afterwards separated and belonged to different owners, the servitude was not revived except by the usual modes of creating servitude. (D. 8, 2, 30, pr.) If, however, the owner of the dominant land acquired only a part of the servient land, the servitude remained intact, because it was indivisible, and could not be partly lost and partly retained. (D. 8, 2, 30, 1.) 3. Non-use (non-utendo). — The period of usucapio for releas- ing land from praedial servitudes was two years. (Paul, Sent. 1, 17, 1.) This period was extended by Justinian to ten years if both parties lived in the same province, and twenty years if in different provinces. (C. 3, 34, 13.) An important distinction existed between urban and i-ural servitudes. Urban servitudes are negative, rural servitudes DIVESTITIVE FACTS. 423 are affirmative. A right of way, to be kept alive, must be exercised; if no one actively uses the way for the period fixed by law, the right of way is destroyed. It is a discontinuous servitude; it is kept up by intermittent acts from time to time, and cannot be continuously enjoyed. But in the case of a servitude of lights, the person that enjoys it cannot do anything to keep it alive ; it consists in the owner of the servient land not doing something, and so long as that is not done, the servitude is fully alive. The servitude is continuously enjoyed, so long as it is enjoyed at all. The rule, then, may be stated thus : — In continuous servitudes, the period of prescription is reckoned from the time that an act is done b}'' the owner of th$ servient land that negatives the servitude; in discon- tinuous servitudes, the period is reckoned from the last time the servitude was used by the owner of the dominant land. (D. 8,2, 6.) A servitude is not lost through non-use if the following con ditions are complied with : — (1.) A usufructuary, tenant, guest or other person using the road or servitude in the name of the land to which it is attached, exercises such a use as prevents prescription being reckoned. (D. 8, 6, 20 ; D. 8, 6, 24 ; D. 8, 6, 5 ; D. 8, 6, 6, pr.) (2.) The use must be at the times, and in the manner, agreed upon. (D. 8, 6, 10, 1 ; D. 43, 20, 5, 1.) (3.) The servitude must be used as a servitude belonging to the land to which it is attached, and not, for example, as a public road. (D. 8, 6, 25.) 4. Destruction or change of the property destroys any servitudes attached to it, as when the dominant house is burned down, and not rebuilt. But if another like it is put up, the servitude is preserved. (D. 8, 2, 20, 2.) If a place over which a right of way exists is swamped by a diversion of a stream, but before the period of prescription is gone the way is restored by the deposit of alluvium, the servitude revives ; and it seems, even if the time had elapsed, the owner of the servient land could be compelled to re-grant the servitude. (D. 8, 6, 14, pr.) Remedies. A. Inteedicts. The actual enjoyment of servitudes was secured by interdict ; but the remedy by interdict was given subject to the analogy to corporeal possession. Interdicts existed only for affirmative, not for negative servitudes ; and their object was to stop the owners of the several lands from forcibly preventing the performance of the acts con- stituting the servitudes. Hence two ch.iracteristics of these remedies. (1) No 424 PRAEDIAL SERVITUDES. person could demand an interdict who had not previously done the acts permitted by the servitude ; and (2) the interdict did not deal with the question of right, but secured undisturbed enjojrment to «. person that had, whether with or without title, in point of fact claimed and exercised the right. (D. 43, 19, 1, 2.) I. Rights of way. 1. An interdict (dc itinere actuque privato), whose object was to secure free passage over the burdened land, and damages {quanti ejus interesse) for interruption. [D. 43, 19, 3,3; D. 8,6, 2, 3.) The Praetor iays : When a footpath, a driving road, or a regular road, is in dispute, and you have used it neither by violence, by stealth, nor by leave from another within the preceding year, I forbid any violence to be employed to hinder you from such use.' 2. Interdict to obtain permission to repair. Every one having a right of way, had by implication a right to keep the road in repair. (D. 43, 19, 3, 13.) The Preetor says : When you have used a path or driving-road within the preced- ing year, neither by violence nor by stealth, nor by suflFerance from another, I forbid any violence to be used to hinder you from repairing that path or driving-road, sup- posing 3'ou have a right so to do. He that would use this interdict must give security to the opposite party against any damage that, though yet undone, may be caused by his fault. ^ To obtain this interdict, the plaintiff must prove more than mere quasi-possession ; because the right to repair is not attached to the use or exercise of the servitude, but only to the right to the servitude. {D. 43, 19, 3, 13.) Also the plaintiff must give security against any damage he may do by his repairs. (D. 43, 19, 5, 4.) II. Rights to water. 1. Aqua cottidiana is water that might be used every day of the year (D. 43, 20, 1, 2) ; it is opposed to aqua aestiva, water used only in summer, even if it could be used in winter. (D. 43, 20, 1, 3 ; D. 43, 20, 6.) The Praetor says : As within the preceding year you have led the water in dispute neither by violence nor by stealth, nor by sufferance on his part, I forbid any violence to be used in order to hinder you from so leading it. (1). 43, 20, 1, pr. ) This interdict could be claimed by any person that had used the water under the conditions applicable to rights of way ; and it may be brought against every one that disturbs the claimant in the use of the water. (D. 43, 20, 1, 25.) The defendant must give security for the free exercise of the servitude, without prejudice to his con- tention that the servitude was not legally binding. (D. 43, 20, 7. ) 2. Interdict for repairs. There was an interdict to enable the owner of the servient land to repair the channel of the watercourse, or to cleanse it. The Prstor says : I forbid any violence to be used to hinder him from freely repairing and cleaning out the channels, covered ways, or reservoirs, in order to lead the water, provided only he leads it no other- wise than he did last summer, neither by violence, nor by stealth, nor by sufferance on your part. (D. 43, 21, 1, pr.) Its object is to secure freedom for the task of repairs or cleaning (D. 43, 21, 1, 8) ; and its aid can be obtained by the same persons that have a right to the use of the aqueduct. (D. 43, 21, 3, 7.) 1 Prcetor ait : " Quo itinere actuque privato quo de agitw, -vd via, hoc anno, nee vi, nee clam, nee precario ab illo usus es, quominus ita utaris, vim fieri veto." (D. 43 19, l,pr.) 2 Ait Prcetor : " Quo itinere actuque hoc anno nan vi, non clam, nan precario ab alio usus es, quominus (id) iter actumque, ui tibi jus esset, reficias, vim fieri veto ; qui hoc interdicto uti volet, is adversaria damni infecti, quod per ejus vitium datum sit, caveat." ^D. 43, 19, 3, 11.) ACTIONS. 425 3. Aquae liaustm and pecoris ad aquam appulsus. In this case, as in aquae ductus, there are two interdicts — one to secure the nse of the water, the other for repair of the fountain or well. (D. 43, 22, 1, pr. ; D. 43', 22, 1, 6.) 4. Interdict for water drawn from an artificial reservoir [ex castello). The Prsetor says : Since from that reservoir he has been allowed to lead water by one that had a right to do so, I forbid any violence to be used to hinder him from leading it as he has been allowed. And when an interdict shall have been given in regard to the doing pf the work, I will order security to be givenfor the damage that may be done.^ This interdict to enforce a servitude of water (whether personal or prsedial) arising from a casteUum or reservoir that is filled with public water (aqua puiUca) (D. 43, 20, 1, 39), is not merely possessory ; it involves the question of righ , and is thus a test of the existence of any investitive fact. (D. 43, 20, 1, 45.) III. Rights in private sewers {cloacae). In this case, again, there are two interdicts, of which the words of one only are contained in the Digest. The plaintiff must give security against any damage he may do by his repairs. (D. 43, £3, 1, 12 ; J). 43, 23, 1, 14.) E. Actions. I. Actio Confessoria. — This action tries the right to the servitude (D. 8, 5, 9, pr.) ; and the form was either, it is my right to do what you have prevented ; or, it is not your right to do what you have begun (jus tnihi esse, jus tihi non esse aedificandi). It can be brought only by the owner of the dominant land (D. 8, 5, 2, 1) ; or by a person having substantially the same rights, as a mortgagee in possession. (D. 8, 5, 16.) It lies against the owner of the servient land (D. 8, 5, 4, 4), or anyone else that inter- feres with the enjoyment of the servitude, although in this case the interdict would generally be the preferable remedy. (D. 8, 5, 10, 1.) The burden of proof lay on the plaintiff. (D. 8, 5, 9, pr.) II. Actio Ner/atona. — An occasion arises for this action denying the existence or showing the termination of a praedial servitude in two cases ; when one, claiming a servitiide, forbids an owner to do something that as owner he has a right to do on his own land (D. 8, 5, 4, 7) ; or when anyone does anything that in the absence of a servitude (whose existence is disputed) he has no right to do. (D. 8, 5, 17, 2 ; D. 8, 5, 13.) The object of the action is to obtain security against a repetition of the con- duct complained of (D. 8, 5, 12) ; and also damages when the defendant has withou right used the land. (D. 8, 5, 4, 2.) The burden of proof usually rests on the plaintiff. There seems no reason why> in this case, the burden should be shifted, even although it casts on the plaintiff the difficulty of proving a negative. Undoubtedly the burden would rest on the plaintiff in cases where the defendant had previously established an actual user by means of an interdict, and apparently the same rule held in other cases. (D. 8, 5, 6, 1 ; D. 8, 5, 7, 3.) III. A ctio Publiciana in rem. — This action is given to a bona fide possessor, whose right will be, but is not yet, perfected hy usucapio. Usufruct and praedial servitudes may be thus vindicated, when there is traditio or patientia, by the owner of the servient land. (D. 6, 2, 11, 1.) ' Ait Prcetor : " Quo ex castello illi aquam ducere ab eo, cui ejus rei jus fuit, per- missum, est ; quominus ita, uti permissum est, ducat, vim fieri veto. Quandoque de opere faciendo interdictum erit, damni infecti caveri jubebo." (D. 43, 20, 1, 38.) 426 EMPHYTEUSIS. IV. Actio oneris ferendi. — According to some, this servitude, which had the pecu- liarity of having an obligation to repair added to it, had a special action. (D. 8, 6, 6,2.) EMPE YTE U SIS. Definition. The tenure afterwards called emphyteusis is to be traced to the long or perpetual leases of lands taken in war granted hj the Roman State. The rent given for such land was called vectigal and the land itself ager vectigalis. The advantages of the perpetual lease were appreciated by corporations, ecclesias- tical and municipal. Corporate bodies are generally inefficient landlords ; and a tenure that practically relieves them from all concei'n in the management of the land, and gives them simply a right in perpetuity to an annual sum, seems most beneficial for their interests. The same tenure was adopted by private individuals, under a new name, at least after the time of Constantine, and was extended from lands to houses. The State still had its agri vectigales, but the perpetual tenure given by private persons and corporations was called emphy- teusis, the land fundus emphyteuticarius, the person to whom it was given emphyteuta. It may be defined as a grant of land or houses for ever, or for a long period (D. 6, 3, 3), on the condition that an annual sum (canon) shall be paid to the owner or his successors, and that if such sum is not paid the grant shall be forfeited. (D. 6, 3, 1, pr. ; D. 6, 3, 2.) The person to whom the grant is made is not owner, but he has Praetorian actions for the property against all possessors, and therefore has a right in rem. (D. 6, 3, 1, 1.) The question whether the emphyteuta is in law owner, appears in the controversy long agitated among the jurisconsults, whether he was a purchaser or a mere hirer. To have regarded him as a purchaser would have made him owner, and the position of the vendor (dominus emphyteuseos) extremely precarious. On the other hand, if the emphyteuta were a mere hirer, the rules applicable to hire would be out of place, considering the perpetual nature of his interest. Such are the considera- tions that may be supposed to have influenced the Emperor Zeno (a.d. 475-491) to terminate the dispute in the manner stated in the Institutes. So very closely akin are buying and selling to letting and hiring, that in EMPHYTEUSIS. 427 certain cases the question is usually raised whether the contract is one of buying and selling or of letting and hiring. [It has been raised, for instance, where anything is let out for all time, as is the case with the land of townsmen {munidpes), let on the express condition that so long as the revenue {vectigal) is duly paid, the estate shall not be taken away either from the original tenant {conductor) or from his heir. But the prevailing opinion is that this is a case of letting and hiring.] This is the case, for instance, with lands made over to be enjoyed for all time; that is to say, on condition that so long as the rent or income {pensio, reditus) is paid for them to the owner, it shall be unlawful to take away an estate of this sort either from the original tenant or his heir, or from any one to whom he or his heir may have sold it, given it as a present or as a dowry, or alienated it in any other way whatever. Now, a contract such as this caused doubts among the earlier writers ; and some thought it a case of letting, others of selling. The lex Zenonianaviz.% therefore passed, which determined that the contract of emphyteusis had a peculiar nature, and must not lean on either letting or selling, but must rest on agree- ments of its own. It determined further, that if any special agreement were made, it should stand just as if this were the nature of the contract ; but that if no special agreement were made in regard to the risk of the property, then if the property wholly perished, the risk thereof should fall on the owner, whereas partial damage should be the tenant's loss. This is the law now in use by us. (G. 3, 145 ; J. 3, 24, 3.) Rights and Duties. A. Rights of Empliyteuta. 1. Use and enjoyment {utendi fruendi). There can be no doubt that the right of the emphyteuta was larger than the right of the usufructuary, but how much larger? Probably the scantiness of passages bearing on this subject shows that few, if any, restrictions were imposed on the emphyteuta. The emphyteuta must, perhaps, for this purpose, be compared with the bona fide possessor rather than with the iisufructuary ; for the emphyteuta, like the former, and imlike the latter, was entitled to the fruits as soon as they were separated from the land, whether gathered or not. (D. 22, 1, 25, 1.) The em- phyteuta was subject apparently to no other restriction than that he must not depreciate the property. Perhaps the strongest evidence of this view is that he was not entitled to compensation for improvements. (C. 4, 66, 2.) 2. Ahenation. The emphyteusis passed to the heirs, and, subject to certain restrictions, could be alienated. Hence the greater including the less, it could be hypothecated (D. 13, 7, 16, 2), or burdened with servitudes. (D. 43, 18, 1, 9.) 428 EMPHYTEUSIS. B. Duties of Emphyteuta = rights in personam of dominus emphyteuseos. 1. To pay the rent agreed upon (canon), without any pre- vious demand, at the time agreed upon, and notwithstanding partial loss of the property. (C. 4, 66, 1.) This could not be increased by the owner {dominus emphyteuseos.) (0. 11, 70, 3.) The usufructuary paid no rent. 2. He must manage the property so as not seriously to reduce its value ; but he is not to be interfered with on the grounds upon which a usufructuary may be sued, that he does not act like a good paterfamilias. (Nov. 120, 8.) 3. He must pay all the burdens attached to the holding of the land ; and deliver the receipts (apocliae) to the owner (dominus emphyteuseos). (C. 4, 66, 2 ; C. 10, 16, 2.) These were the rules applicable in the absence of special agreement ; but if any variation were made, it would be sup- ported. (C. 4, 66, 2.) Investitive Facts. I. By agreement in writing (pactum). (C. 4, 66, 1.) n. By prescription (not by usucapio). (D. 6, 2, 12, 2.) By analogy to servitudes we may infer prescription ; and in the case of a possessor without title, the limit of forty years (negative prescription) seems to be given by Anastasius. (C. 11, 61, 14.) Divestitive Facts. I. The total loss or destruction of the property. II. Prescription — possession by the owner for the requisite number of years (usucapio lihertatis). III. Surrender or merger (confusio, consolidatio). IV. Forfeiture. In the absence of special agreement, an emphyteusis was forfeited — 1. For deterioration of the property. 2. For non-payment of rent, when tbe land was held from an ecclesiastical corporation, for two years ; in any other case three years. (C. 4, 66, 2 ; Nov. 7, 3, 2.) 3. If the emphyteuta do not produce to the owner, within three years, the receipts (apochae) for public burdens. (C. 4, 66, 2.) 4. If he attempts to transfer the emphyteusis without com- plying witli the rules prescribed. (C. 4, 66, 3.) If the owner would not receive the rent, with the object of causing a forfeiture, the emphyteuta was empowered, in the SUPERFICIES. 429 presence of witnesses, to deposit the money in sealed bags; and this tender was equal to payment. (C. 4, 66, 2.) Transvestitive Facts. 1. By bequest from the emphyteuta. (D. 30, 1, 71, 5.) 2. Alienation by delivery in the lifetime of the emphyteuta. This right was not unqualified. The consent of the domimis was necessary, and his acceptance of the new emphyteuta. The owner had the right of pre-emption. The proceedings to be adopted are prescribed by Justinian. (C. 4, 66, 3.) The emphyteuta ought to transmit to the dominus formal notice of the sum that a purchaser is willing to give for it. The owner has two months to decide whether he will take the emphyteusis at that sum ; and if he wishes it, the transfer must be made to him. If he does not buy at the price named within two months, the emphyteuta can sell to any fit and proper person without the consent of the dominus. If such a person is found, the dominus must accept him as his emphyteuta, and admit him into posses- sion either personally or by written authorisation, or by attesta- tion, before notaries or a magistrate. For this trouble, the dominus was entitled to charge a sum (laudemium) not exceeding two per cent, on the purchase-money. If the owner does not make the acknowledgment within two months, then the emphy- teuta can, without his consent, transfer his right to another and give him possession. Bemediks. 1. The emphyteuta has an action m rem {utUis), given after the analogy of the vindication for ownership. 2. If he is only a bona fide possessor, he has the actw PuUiciana in rem. 3. He has all the actions and interdicts requisite to protect his rights of enjoyment, like a usufructuary or owner. SUPERFICIES. Definition. Superficies or jus swperficiarium is a right to the perpetual enjoyment of anything built upon land, on payment of an annual rent {pensio). (D. 6, 1, 74 ; D. 6, 1, 73, 1 ; D. 43, 18, 2.) Rights. A. Rights in rem of Superficiarius. — 1. Enjoyment and use {utendi fruendi). (D. 43, 18, 1, 6; D. 43, 18, 1, 1.) 2. Aliena- tion, pledging, or burdening with servitudes. (D. 20, 4, 15 ; D. 43, 18, 1, 9 ; D. 43, 18, 1, 7.) 430 MORTGAGE. B. The duties of Superficiariiis were to pay his annual rent, etc., just as in the case of emphyteusis. Investitive and Transvestitive and Divestitive Facts Same as in emphyteusis. Remedies. 1. Actio in rem (utUis). (D. 6, 1, 75 ; D. 18, 1, 1, 6; T>. 43, 18, 1, 3.) 2. The possessory interdicts generally, as an owner or possessor. (D. 43, 16, 1, 5.) 3. Special interdict. The Prajtor says : " As under the terms of letting or hiring you enjoy one of the other, the superficies in dispute, neither by violence nor by stealth nor by leave, I forbid any violence to be used in order to hinder the enjoyment. If any other action in regard to the superficies is demanded, after hearing the case {causa cognita), I will give it." (D. 43, 18, 1, pr.) The object of this interdict was to give a right in rem ; previously to its introduction, the superficiarius could only sue on his contract, or, if he were disturbed by third parties, call on the owner to transfer to him his actions against the disturbers. (D. 43, 18, 1, 1.) ■ This interdict was introduced after the analogy of the interdict uti possidetis and is governed by the same rules (D. 43, 18, 1, 2) ; causa cognita, if for a short period, no actio in rem; but if for a long period, an actio in rem will be given. (D. 43, 18, 1,3.) SECOND SUB-DIVISION. DEPENDENT EIGHTS /iV SSM. Rights in rem, of which the leading groups have been now enumerated and described, may exist either for their own sake — that is, for the benefit they confer, and for no ulterior purpose — or they may be created, not for their utility to the person that enjoys them, but as a means towards another end. Thus rights of ownership may be given to a man as security for rights in personam. If A. owes B. money, B.'s only remedy is against A., and if A. fails, his debt is worth nothing ; but if A. gives B. property, which can be converted into money on condition that if A. fails to discharge his debt, B. may sell the property and pay himself out of the proceeds, B.'s position is very much strengthened. Such, then, is the aspect of a pawn or mortgage towards a creditor ; it is a mode of strengthening the weak point of all mere rights in personam, by giving the creditor valuable rights that avail against the whole world. As regards a debtor, a mortgage may be looked at in another light ; it is a way by which he may obtain tem- porary accommodation without entirely parting with his pro- perty. The first device by which this was accomplished in the Roman law was simple. An actual conveyance was HISTORY OF MORTGAGE. 431 executed by the borrower to the lender, with an agree- ment (contractus fiduciae), that if the purchase-money were repaid by a day named, the lender would re-convey the pro- perty to the borrower. The conveyance was formal and effectual in law to vest the ownership in the lender. How long this continued to be the only mortgage known to the Roman law it is not easy to guess ; but at some period unknown a revolution in the character of the mortgage was very quietly accompKshed by a simple edict of the Praetor. By the old arrangement, the borrower obtained his accommodation at a great risk. He gave up his ownership (jus in rem), and got in exchange only an action against the lender (jus in personam), who might meanwhile have sold the property, and deprived the borrower of his remedy. The borrower ran a serious risk, and was, in fact, left very much to the honour of the lendei". It is curious to observe with what emphasis of vituperation Cicero denounces unjust lenders ; because it shows that the instinctive desire of the lawgivers was to strengthen the weak point of the mortgage. Where the law is weak, honour is strong. Thus, a lender who on being paid his money, re- fused to restore the property, or had deprived himself of the means of doing so, was held to be infamous. (Cicero pro Caecina, 3, 7-9.)^ ' The completeness of our system of laws makes it difficult for us to realise the sentiments of persons in a progressive community, where legal remedies are imperfect. " A debt of honour " is, however, even in these days usually paid in preference to legal debts. If, then, the fear of disgrace makes a man pay such a debt, to which a dis- creditable odour always clings, we can understand how powerful the same motive was when the debt was held to be binding in conscience by public opinion. In truth, the social sanction, as it precedes in time the sanction of law, so it continues, while the law is imperfect, to aflford a substitute by no means inefficient. In very small communities the social sanction is most powerful ; and, indeed, the want of legal remedies begins to be keenlj' felt only when conomunities become so large as to impair the effective operation of the social sanction. " Customary law," as it is sometimes called not very accurately, rests in small communities upon the solid basis of the social sanction, enforced in case of necessity by exclusion from the society. At this stage, " custom " is more correctly described as " positive morality," in the sense explained by Austin, that is, not the dictates of a man's conscience, but the rules that his neighbours require him to observe on pain of their displeasure. In Rome, a curious survival existed in the shape of infamia, an institution partly legal, . partly political. The distinguishing feature of the ancient jurisprudence of Rome is its intense Formalism. Even when tribunals were fully established, and un- questioning obedience was given to the civil jurisdiction, the law hesitated to interfere, except when the transactions were of the most formal and solemn character. To abridge the gulf that thus separated the "positive law" from the "positive morality" of the Romans, power was given to the censor to brand offenders with ignominy in the 432 MORTGAGE. The change introduced by the Prsetor was one that, without really weakening the security of the lender, gave complete protection to the borrower. It proceeded on the distinction already described between possession and property. Let the Register of citizens, and to degrade a member of the Senate or order of Equites, or to remove a man from his tribe, and thus deprive him of the right to be a soldier. In this way, the sanction of public opinion came almost to merge in a legal institution ; but the imperfection of the machinery necessarily limited its application to gross breaches of confidence and to offences of a criminal character, that were not yet brought within the scope of the criminal law. Various instances have been mentioned in which a defendant, in addition to ordinary damages, was subjected to infamia. A condemnation for theft, robbery, injuria, or fraud, entailed infamy. So ^. partner, a mandatarius, a depositarius, tutor, a mortgagee (in contractus fiduciae only), if condemned for wilful breach of duty, was held to be infamous. (D. 3, 2, 1 ; Cic. pro Caec, 7-9.) The exact consequences of infamia have been the subject of dispute. The reason appears to be that infamia was a republican punishment, carrying with it exclusion from political life ; not merely from office (honores), but even from the right to vote in elections [suffragium). The exclusion from public oflBces seems to have been continued under the Empire. (0. 12, 1, 2 ; D. 48, 7, 1, pr.) Another effect of infamia was exclusion, under the edict of the Prsetor, from the office of attorney. No one could act on behalf of another in a lawsuit, if he were infamous within the meaning of the edict. (D. 3, 1, 1, 5.) This implied that the infamous person could not bring a popularis actio (D. 47, 23,, 4), unless he had a personal interest in the result of the action. (J. 4, 13, 11.) Again, no infamous person could act as adsessor to a magis- trate. (D. 1, 22, 2.) "When infamy was attached to a man by judgment of a court of law, it could be removed only by the authority of the Emperor. (D. 3, 1, 1, 10.) Another disability imposed on the infames during the Empire was removed by Justinian. The lex Julia et Papia Poppaea, while having for its main object the encouragement of marriage, introduced certain restraints on marriage with the object of preventing high-born persons contracting marriage with those beneath their station. It also prohibited freeborn men from marrying certain classes of women. According to the interpretation put upon the lex Julia by the jurisconsults, the restriction was extended to all persons declared infamous. But Justinian repealed the lex Julia in so far as it imposed restraints on marriage, and thus deprived infamia of one of its stings. It is a moot point whether imfamia rendered a person incapable of being a witness to a legal transaction or in a court of law. Savigny's opinion is, that infamous persons were not as such excluded from giving evidence, but that most of the persons disabled from acting as witnesses by special statutes were at the same time infamous. The XII Tables contain a provision that if a witness to a mancipatio refuses to give evidence in support of the transaction, he shall be infamous (improbus) and intestaiiiis} The interpretation put upon the word intestabUis in later times, was not merely that the infamous person could not be a witness in court (D. 22, 5, 15, pr.), but that he could not take part in any transactions requiring vritnesses. (D. 28, ], 26.) Thus he could not make a will. But it would appear that the special disability expressed by the word intestabUis existed only when created by a special statute, and therefore was not in all cases a result of infamia. ' Qui se sierit testarier librepensve fuerit, ni testimonium faiatur, improbus intesta- bUis que esto. HISTORY OF MORTGAGE. /J 33 lender in effect, said the Praetor, have the possession of the property ; but let the ownership remain with the borrower : let him retain his right in rem, and all the benefits (as, e.g., usucapio) that are attached to ownership. The lender has the actual possession, and (if so agreed upon) the right of sale (guarded by conditions preventing an improper or wrongful sale), which make him as secure as if he were owner ; the borrower is still owner, and has therefore a remedy, not only against the lender, but against the whole world. This then was a typical mortgage, in which the lender obtained as much, and only as much, as was necessary to secure his loan, and the borrower, with the smallest possible loss, ob- tained the accommodation that he desired. This is the ^i^mes of the Roman law. When first authorised by the Pr^tor, the pignus was con- stituted on a narrow but instructive basis. The Prsetor sanctioned such a security only when the thing in question was actually given into the possession of the lender. Hence the difference between the contract of fiducia and that of pignus : in the former, there was a formal conveyance by mancipatio or cessio injure (G. 2, 59) ; in the latter, there was no conveyance, but only change of possession. Once the thing was in his possession, the lender had the right of sale ; other- wise, he had not. But although an improvement on the fiducia, the pignus was still inconvenient. The lender did not always desire the possession of the thing pledged, nor did the borrower always wish to part with the possession. Loss might be inflicted on the borrower without any corresponding benefit to the lender. Plainly, then, a last step remained to be taken, — to dispense with the transfer of possession. The last, or rather the penultimate step, was due to one Servius, of whom nothing seems to be known but the name, and that he lived before Cicero, who introduced an action by which he gave the landlord of a farm a right to take possession of the stock of his tenant for rent due, when the tenant had agreed that the stock should be treated as a pledge. This was the actio Serviana. It was extended, under the designation of Actio quasi- Serviana, or hypothecaria, to all cases in which it was agreed between borrower and lender that anything should be a pledge when possession was not delivered to the lender. Hence arose the hypotheca, or pledge of a thing by mere agreement (without any 2 E 434 MORTGAGE, formality), and without the dehvery of possession. The remedy of Servius availed not only against the borrower, but against all other persons, and thus established a true right in rem. On the other hand, the borrower kept his property in his possession, and enjoyed it until he made default in the payment of his debt; thus suffering no present inconvenience, and being enabled to borrow on the most advantageous terms. It must not be supposed that because the three stages marked by the words Fiducia, Pignus, Hypotheca, were successive, that upon the introduction of the higher process the lower disap- peared. In point of fact, pledges with and without possession continued to exist, and were subject to precisely the same rules, so that they fall to be considered together, and may in fact be treated as one. (D. 20, 1, 5, 1.) The earhest {fiducia) long co-ex- isted with the other two, and may have flourished up to the time of Constantine. That Emperor, however, gave it a death-blow, for he abolished the lex commissoria, which was of the essence of the fiducia; namely, that if the money borrowed were not repaid by a given day, the pledge would be forfeited, and become the absolute property of the lender. Moreover, when the ancient forms of conveyance, mancipatio and cessio in jure, fell into disuse, the fiducia lost the other pillar upon which it rested ; and in the time of Justinian, if not earlier, it had passed into oblivion. FIDUCIAE CONTRACTUS. Definition. A contractus fiduciae is when anything is conveyed by man- cipatio or cessio injure, with the condition that if a certain sum is paid by a certain day, the thing shall be re-conveyed.^ Rights. A. Rights of Creditor. I. Rights in rem. 1. The creditor to whom anything is conveyed {fiduciae causa) is owner, and may convey the property. Thus, if a creditor bequeaths the thing to some legatee, the debtor who conveyed the property must sue not the legatee for the thing, but the heir of the deceased for damages. (Paul, Sent. 2, 13, 6.) 2. The creditor has an inalienable right to sell. An agree- • Fiducia est cum res aliqua sumendae nmtuae pecuniae gratia vel mancipatur vei in jure ceditur, (Isidor. Orig. 7, 25, 23.) CONTRACTUS FIDUCIAE. 435 ment that he should not have power to sell, if the debtor made default, is void ; but it is valid so far that the creditor must make a formal notification {solenniter denuntiare) to the debtor before proceeding to the sale. (Paul, Sent. 2, 13, 5.) II. Right in personam. The creditor is entitled to expendi- ture on improvements {si creditor rem fiduciariam fecerit meliorem). (Paul, Sent. 2, 13, 7.) A second mortgagee has a right to pay- off a prior mortgagee and get possession. (Paul, Sent. 2, 13, 8.) B. Rights of Debtor. 1. Rights in personam. 1. He may sell the property if it will yield a surplus, and the creditor is bound, on receiving his money, to remancipate the property, and enable the debtor to give a good title to the purchaser. (Paul, Sent. 2, 13, 3.) But he cannot sell to the creditor, who is in law already owner (D. 13, 7, 40, pr.) ; nor can the creditor buy it even through or in the name of another person, unless with the consent of the debtor. (Paul, Sent. 2, 13, 4.) 2. If the creditor sells [before the day named for forfeiture (?)], the debtor is entitled to any surplus after discharging the claim of the creditor. (Paul, Sent. 2, 13, 1.) 3. The debtor is entitled to a reconveyance on paying the sum agreed upon within the time agreed upon. 4. All that is gained through a slave pledged, goes to reduce the principal debt. (Paul, Sent. 2, 13, 2.) Investitive Facts. Mancipatio, Ces&io in jure. Divestitive Facts. 1. Fulfilment of condition, default of debtor. {Fiducia com- mittitur), — {Cic. Pro FiaccOy 21, 49-51). 2. Usureceptio. There are still some further grounds on which a man can acquire by usucapio what he knows to be another's. For suppose a man has given by mancipatio or by in jure cessio some property to another fiduciae causa, and then himself comes to possess that same property, then he may acquire it by usucapio within a year, and that even if it be landed property. This kind of usucapio is called usureceptio, because that which we once had we now recover by usucapio. (G. 2, 59.) Now e.v^xy fiducia is contracted either with a creditor in right of the pledge, or with a friend, that our property may be in greater safety with him. If, then, it is with a friend, usureceptio is certainly open to us in any case. But if with a creditor, it is open to us in any case only if the money is paid. So long, however, as it is not paid, usureceptio is open only if the debtor has neither hired the property from the creditor, nor asked to be tenant-at- 436 MORTGAGE. will {precario). But if not, a gainful usureceptio is open to the debtor. (G. 2, 60.) Remedies. a. Rights in personam of Creditor. Actio fidMciae contra/ria. (Paul, Sent. 2, 13, 7.) B. Rights in personam of Debtor. Actio jiduciae directa. This was an action bonae fidei, and condemnation involved infamy. (Cio. pro Caecina, 7-9.) PIGNUS AND HYFOTHECA. Definition. Between pignus (pledge) and hypotheca (mortgage) there is no difference, so far as regards the actio (quasi- Serviand) for recovery. For when creditor and debtor agree that any property shall be bound by the debt, then that property is included under both those names. But in other points there is a difference. For under the name pignus is properly included, as we say, what is at the time handed over to the creditor, especially if moveable ; whereas, that which is not handed over, but is made liable by the bare terms of the bargain, is properly included under the name hypotheca. (J. 4, 6, 7.) The distinction between Plgnus and Hypotheca had nothing to do with the diflerence between moveables and immoveables ; but some jurists thought, erroneously, that pignus was confined to moveables. (D. 60, 16, 238, 2.) Generally a pignus or hypotheca consisted of rights in rem over slaves or things, given as security for rights in personam. But it might consist of a right in personam, that the debtor had against a third party, given as security to the creditor for a sum due by the debtor. Gaius is a creditor of Titius for 50 aurei, and Gaius owes Maevins 20 aurci. Gaius may convey to Maevius his (Gains') right to sue Titius for 50 aurei, as n security for the 20 aurei he owes to Maevius. If, in enforcing this security, Maevius recovers the 50 aurei from Titius, his debt is wiped off, and he must hand the balance to Gaius. Suppose, instead of 50 aurei, Titius owed Gaius a slave on a contract of sale, and that Maevius recovered the slave from Titius. Then Maevius would hold the slave as a pledge for the 20 aurei Gaius owed him. (D. 13, 7, 18, pr.) Again, Titius gives a loan of 100 aurei to Gaius to rebuild his house, and, as we shall see, acquires an implied hypothec over the house. It was agreed that the rents of the tenants also should be hypothecated to Titius. Then Titius can sue the tenants (by utUis actio), and compel them to pay him over their rents. (D. 20, 1, 20.) Rights and Duties. A. Rights in rem. (a.) Rights in rem of creditor. I. If the creditor is not in possession, and if he is in a position to sue the debtor for the debt, he can bring an action to recover the possession of the hypothec from him or from anyone in whose hands it is. (0. 8, 14, 18 ; D. 20, 1, 17 ; C. 8, 28, 12 ; C. 8, 14, 15.) RIGHTS OF MORTGAGEE. 437 If there is an agreement that the creditor shall not sue for one year, the same period will be applied to the hypothec. (D. 20, 6, 5, 1.) If the obligation is conditional, possession of the hypothec can be demanded only when the condition has occurred and the debt become due. (D. 20, 1, 13, 5.) II. The right of sale. On the other hand, a creditor can by agreement alienate a pledge although it is not his property. But perhaps this may seem to be done on the understanding that it is the wish of the debtor that the pledge should be alienated ; for he originally made the agreement that the creditor might sell the pledge if the money were not paid. But lest creditors, on the one hand, should be hindered in pursuing their rights, and lest debtors on the other should too hastily lose the ownership of their property, we have, by our constitution, taken measures and fixed a regular course of procedure in the enforced sale (distractid) of pledges, by which sufficient and ample provision is made for the interests of both parties. (J. 2, 8, I ; G. 2, 64.) The provisions made by Justinian were as follow : — If the parties agreed as to the manner, time, etc., of the sale, their agreement was to be observed ; if nothiag was said in the contract as to the power of sale and the creditor wished to sell, he must, if he had possession, give formal notice of his intention to the debtor ; or, if he had not possession, obtain a judicial decree ; and after two years from either of those events he could sell. (C. 8, 34, 3, 1 ; D. 13, 7, 4 ; D. 13, 7, 5.) If the same thing has been hypothecated successively to several persons, only the first of them has the power of sale, unless a subsequent creditor has, in the modes hereafter to be described, put himself in the place of the first. (D. 20, 5, 5, pr. ; C. 8, 18, 1 ; C. 8, 18, 8 ; C. 8, 18, 5.) The power of sale being given to secure a debt, cannot be exercised until the debt really exists (D. 20, 5, 4) ; i.e., until the creditor is in a position to sue the debtor; and it ceases, if the principal and interest are paid. (C. 8, 29, 2.) But the power remains until the whole of the debt is discharged ; and, there- fore, so long as any part of the debt is unpaid (0. 8, 28, 6), or of the interest, or of the expenses necessarily incurred by the creditor, the creditor retains the power of sale. (D. 13, 7, 8. 5.) A hypothec is made to secure an annual payment, to come into effect only if the money is not paid on each proper day {nisi sua quaque die pecunia soluta est). A sale cannot take effect until the last instalment is due and unpaid. If, however, the phrase is that it comes into effect if any of the money is not paid on the proper day (si qua pecunia sua die soluta non ent), the property may be sold after default of the first instalment. (O. 13, 7, 8, 3) III. The right of foreclosure. The Fiducia was essentially a self-acting foreclosure ; if the 438 MORTGAGE. debtor did not pay by the day named, the pledge became the absolute property of the creditor. After the analogy of this contract, in all probability, was introduced what is called the lex commissoria, or condition that the pledge should be for- feited to the creditor if payment was not made within the time limited. As we have seen, this condition could be inserted in mortgages down to the time of Constantine. (C 8, 35, 3.) About a century earlier, however (a.D. 230), Alexander in- troduced a new kind of foreclosure, which was afterwards more fully developed by Justinian. According to Alexander's constitution there miist be a public notification of the hypothec and a year's delay. Finally, the ownership could be got by the creditor only by special petition to the Emperor. (C. 8, 34, 1.) Justinian allowed foreclosure only when the creditor was unable to find a buyer at an adequate price. If the debtor and creditor live in the same province, the creditor miist give foi-mal notice after two years from the time that the obligation has accrued. If they live in different provinces, the creditor must apply to the provincial judge, who will serve a notice on the debtor, giving him a certain time to come in and pay the debt. (C, 8, 34, 3, 2.) If the debtor cannot be found, the judgment gives him a certain time to appear ; if he does not appear, or appearing does not pay, the creditor will obtain the ownership on petition to the Emperor. After that the debtor has still two years' grace; but if he does not pay all principal and interest within that time, the ownership of the creditor becomes irrevo- cable. (C. 8, 34, 3, 3.) IV. Eight to hypothecate and to let the thing hypothecated, or to transfer the hypothec to another. (D. 20, 1, 23, pr.) A. is creditor of B., and has got the Tusculan farm hypothecated to secure the debt. A. can in turn give this farm to C. as security for a debt due by him to C. (C. 8, 24, 2 ; T>. 20, 1, 13, 2 ; D. 44, 3, 14, 3 ; 0. 8, 24. 1.) If, however, B. pays off A.'s debt, then C.'s hypothec is at once annihilated. (D. 13,7, 40, 2.) A., instead of hypothecating the land, could sell the hypothec, so that another should succeed to his place. (D. 20, 4, 19.) (&.) Rights in rem of the debtor. Subject to the rights of the creditor, the debtor still remains owner (dominus), and therefore can sell the thing hypo- thecated, but without prejudice to the creditor (C. 8, 14, 9); and may, under a rescript of Severus, sell it even to the creditor. (D.'20, 5, 12, pr. ; C. 8, 14, 13.) Also, all accessions to the thing RIGHTS OF MORTGAGER. 439 hypothecated belong to the debtor, and he sniFers any loss that may arise by injury or evil befaUing it. (D. 20, 1, 21, 2 ; C. 4, 24, 9.) Hence, whatever is acquired by a hypothecated slave goes to reduce the principal or interest of the debt. (Paul, Sent. 2, 13, 2.) B. Duties (reciprocal) of Creditor and Debtor. (a.) Duties of creditor = Rights in personam of debtor. I. To return the thing hypothecated if in his possession when the obligation for which it was given has been discharged, or tender of payment has been made. (D. 13, 7, 9J 3 ; D. 13, 7, 40, 2 ; D. 13, 7, 20, 2.) It would appear that the creditor could retain the pledge unless other money that he lent with- out hypothec was also repaid him, at least if he had possession. But this was only as against the debtor. (C. 8, 27, 1.) A creditor, too, that has received a pledge is under an obligatio re. For he is hable to an actio pigneratitia to make him give up the thing he received. (J- 3> I4> 4-) II. If the creditor exercises his power of sale, he must give the surplus, after paying himself, to the debtor. (D. 13, 7, 42.) If he has not got the money, the debtor may require him to give his authority to sue the purchaser. (D. 13, 7, 24, 2.) III. If he is in possession, the creditor gathers the crop and sets it off against the debt. (0. 4, 24, 1 ; C. 4, 24, 3.) This includes the services of slaves and the rent of houses (C. 4, 24, 2), and generally every benefit derived from the property. Hence also any damages the creditor may have received on account of things stolen must be added, unless the debtor was the thief. (D. 13, 7, 22, pr. ; D. 47, 2, 79.) The creditor, if it were part of the contract, might, however, keep the produce {fructus) instead of interest ; and this was a well-known arrangement called antichresis. ( Ut creditor fro •pecuniae deMtae usuris, fructus rei pignoratae haheat.) (D. 20, 1, 11, 1 ; D. 13, 7, 33.) IV. Generally, the creditor is answerable for wilful or negligent harm. But since a pledge is given for the good of both parties — for the debtor's good, because the money is more readily lent him ; for the creditor's, because the money he lends is in greater safety — it is held to be enough that the creditor in guarding the property should use all possible iexada) diligence. If he does this, and yet by some chance mishap loses the property, he is not answerable ; nor is he hindered from claiming the money lent. (J. 3, 14, 4-) 440 MORTGAGE. (b.) Duties of debtor = Rights in personam of creditor. I. If he is in possession by gratuitous permission or hire from the creditor, and the creditor sells, he must deliver up possession, and is liable for damages if he does not. (D. 13, 7, 22, 3.) II. He must pay all necessary expenses incurred by the creditor for the property hypothecated; as, e.g., repairing a house, or medical attendance on a slave, although the slave died and the house afterwards was burned. (D. .13, 7, 8, pr.) A question arises whether expenses not necessary, but beneficial to the property, ought to be allowed. Paul speaks generally of improvements (Paul, Sent. 2, 13, 7), which would include beneficial expenditure {utiles impensae). Ulpian speaks with more hesitation. (D. 13, 7, 25.) He recommends a middle course to the judge : on the one hand, not to be too burdensome on the debtor ; and on the other, not to be too fastidious in disallowing beneficial expenditure by the creditor. He puts two cases illustrative of his meaning. A creditor teaches slaves a handicraft or skilled work. If this was done with the consent of the debtor, of course the expenditure must be allowed ; also, if the creditor only followed up what had already been begun. Neces- sary instruction must also be allowed, but further than that Ulpian was not inclined to go. The other case is somewhat different. A large forest or pasture is hypothe- cated by a man who is scarce able to pay the creditor ; this creditor cultivates it, and makes it worth a great deal of money. Ulpian thought it was too hard that the debtor should thereby be improved out of his property. III. He must pay all damage sustained by the creditor through the use of the thing hypothecated. Thus, if he knowingly hypothecates a slave, a habitual thief, he must pay all damage suffered by the creditor, and cannot escape by sur- rendering (noxae deditio) the slave to the creditor. (D. 13, 7, 31; D. 47, 2, 61, 3.) But if he were ignorant of the character of the slave, he was permitted the indulgent alternative. (D. 47, 2, 61, 1.) C. Rights of Concurrent and Subsequent Creditors among themselves. I. When several creditors acquire their hypothec in the same thing at the same time, they have equal rights : one has no preference over the other. (D. 13, 7, 20, 1.) II. When the same thing is hypothecated at different times to several persons, he that has the first hypothec excludes all the others ; he is entitled to be paid in full, and the balance only is distributed among the subsequent creditors in the order of priority. What is priority in time ! The time in question is the date of the contract of hypothec, not of obtaining possession, nor of the debt for which the hypothec is given. PRIORITY. 441 Titius hypothecates his farm to Maevius, and nothing is said abont a power of sale ; afterwards he hypothecates the same farm to Gains, giving him an express power of sale, and delivers to him possession. Maevius is prior, and is entitled to be paid in full before Gains gets anything. (D. 20, 4, 12, 10.) Marcus gives a loan to Fablus without security, and afterwards Tabius borrows from Gallus, and gives him a hypothec on his estate. Then Fabius gives Marcus a hypothec on the same estate. Gallus is first, because, though his debt is later, his contract of hypothec is earlier. (D. 20, i, 12, 2.) Servius promised money to Gains conditionally, and by way of security at the same time hypothecated his farm. Before the condition was fulfilled Servius accepted a loan from Titus, and hypothecated the same farm to him. Afterwards the sum promised to Gaius became due, the condition having been fulfilled. Which was prior, Gaius or Titus ? Gains is first, because, according to the rule of Roman law, when a condition was fulfilled, the obligation was regarded as taking effect from the moment it was made ; and thus Gaius was first with the obligation as well as the hypothec. (D. 20, i, 11, 1.) An heir pledges a farm belonging to himself as security for a conditional legacy that he is bound to pay. Afterwards he pledges the same farm for money lent to him- self. The condition of the legacy is fulfilled, and it becomes payable. The legatee is preferred to the lender, because of the retroactive effect of a fulfilled condition. (D. 20, 4, 9, 2.) Prisons hired a bath from Julius from the next kalends, and agreed that his slave Eros should be security for the rent. Before the kalends Prisons borrowed money from Maevius, and hypothecated Eros to him. In this case Julius had priority to Maevius, although there was nothing actually due for rent at the time Maevius made his ad- vance. The reason assigned is, that the hypothec was attached to the contract of hire in such a manner that, without the consent of Julius, it could not be got rid of. Julius had the first hypothec. (D. 20, 4, 9, pr. ) Gallus agrees with Sempronius to lend him money by a certain day, the farm of Sempronius to stand as security. Then, before any money had been advanced, Sem- pronius borrowed from Titius, and hypothecated the same f.arm. Gallus afterwards advanced money, under the agreement, to Sempronius. Which has priority, Gallus or Titius ? It seems Titius had the priority. The distinction between this and the former case seems to be as follows : When Prisons hired the bath, it was out of his power to prevent the obligation accruing for the security of which the hypothec was granted. Unless he were relieved by Julius from the contract of hire, the rent became due by the mere lapse of time, whether Priscus occupied the bath or not. In the second case, Sempronius certainly fras not bound to accept any money from Gallus, even — which is doubtful — if Gallus were bound to advance the money. It lay, there- fore, entirely with Sempronius whether any obligation would be incurred towards Gallus or not. This seems to distinguish the case from conditional obligations, in which the condition is out of the power of the debtor ; and thus no obligation arose between Gallus and Sempronius until Gallus actually advanced his money. This being posterior to the advance of Titius, the latter, accordingly, had priority. (D. 20, 4, 1, 1 ; D. 20, 4, 11, pr.) A farmer (colonus) agreed with his landlord, Titius, that the stock brought on the farm should be hypothecated for the rent. Before bringing to the farm part of what would be stock he pledged it for a loan to Maevius. Then he brought it to the farm. Here Maevius has the priority, because the agreement with the landlord did not give tiJTn a hypothec until the stock was actually on the farm. (D. 20, 4, 11, 2.) A person that pays off a prior creditor is entitled to priority. Seius borrowed from Titius, and hypothecated to him a house. Then he borrowed from Maevius, hypothecating the same house. Gaius now advanced money to Seius 442 MORTGAGE. to enable him to pay oflf Titius, on condition that he should have the hypothec that had been given to Titius. Gaius is prior to Maevius. (D. 20, 4, 12, 8.) But the contract must be clearly on the condition that the same thing should be hypothe- cated, and that Gaius should take the place of Titius {ut idem pignus ei oUigetur, et in locum ejus succedat). (C. 8, 19, 1.) In the same case, Maevius had a right to pay o£F Titius {jus offerendi) on tendering the amount of the debt and interest for which the house was hypothecated. (0. 8, 19, 4 ; D. 20, 4, 20.) Lucius Titius advanced money on interest on a hypothec ; and to the same debtor Maevius advanced money afterwards on the same security. Is Titius entitled to priority for the interest due — not only before, but after the advance of Maevius ? He is entitled to the whole of the interest and principal. (D. 20, 4, 18.) Maevius advanced a sum to Titius on a hypothec of a house, and afterwards Seius lent 50 aurei on a hypothec of the same house. Subsequently Maevius made a further advance of 40 auvei on the same security. Suppose the house was not worth more than the first advance of Maevius and the 50 aurei of Seius. If Seius paid Maevius the first advance and interest, he was entitled to hold the house, and pa.y himself before Maevius could claim the second advance of 40 aurei. (D. 20, 4, 20.) Exceptions the to rule of priority. The Romans had no registration of mortgages, either for moveable or immoveable property. But if a hypothec were made by a public deed — i. e., sealed in the presence of wit- nesses and prepared by a notary (tabellio) — it had priority over hypothecs attested only by private documents. Leo gave the same privilege of priority to a private writing signed by three good and respectable witnesses (C. 8, 18, 11) ; and Justinian continued and confirmed the privilege. (Nov. 73, 1.) But in certain cases priority in time was postponed to other considerations. 1. The Imperial Exchequer (Fiscus) came before all creditors for arrears of fines. (C. 4, 46, 1.) 2. If money was advanced to buy office (riiiUtia) expressly on the condition of obtaining priority, the loan obtained priority. (Nov. 9, 7, 4.) 3. A married woman has the first preference in suing for the recovery of her dos, but she has no preference in respect of the donatio ante nuptias. (C. 8, 18, 12, pr.-2.) We have also given her an implied mortgage {hypothecd) ; and further, we have held that she is to be preferred to other mortgagees, but only when she is trying in person to recover her dower. It is forethought for her alone that has led us to bring in this rule. (J. 4, 6, 29.) 4. An advance of money on the security of any house or property for the purpose of preserving it from destruction, ranks next in order of preference. (D. 20, 4, 5.) Other privileged hypothecs rank according to their priority in time, but are preferred to all non-privileged hypothecs. INVESTITIVE FACTS. 443 1°. The hj-pothec of pupils over property bought by their tutors with their money. (D. 20, 4, 7, pr. ; C. 7, 8, 6.) 2°. The hypothec of one that advances money, or pays for the rebuilding of a house, on that house. (D. 42, 5, 24, 1.) 3°. The hypothec that one has over a thing bought with his money, if he has specially bargained for it at the sale. (C. 8, 18, 7.) Other hypothecs took the rank determined by their order in time ; and it need hardly be added, that all secured creditors were preferred to those that were not secured by pledge or hypothec. (C. 8, 18, 9.) Investitive Facts. A. Modes of Creating a Hypothec. (A.) By agreement between debtor and creditor. I. Simple agreement (nuda conventio), without any formality, without writing, and without delivery of possession. (D. 1.3, 7, 1, pr.) This was strictly hypotheca. The precise words are immaterial, provided they disclose an undertaking that anything shall be hypothecated to secure the performance of any obliga- tion. (D. 20, 1, 4.) Thus, a person in his absence might hypothecate his property by letter or messenger. (D. 20, 1, 23, 1.) The agreement was generally in writing, but that was not essential. (C. 8, 14, 12.) II. Simple agreement, with delivery of possession to the creditor (pignus). (D. 13, 7, 1, pr.) III. By last will. If the debt is in existence, the hypothec dates from the death of testator ; if not, then from the exist- ence of the debt. (D. 13, 7, 26, pr.) (b.) By operation of law (tacita Tiypotkeca). Certain persons in respect of certain debts were invested by special enactments with a hypothec over the whole or particular parts of the property of their debtors. We may divide those cases into two groups, according as the creditor had a hypothec over all the property of his debtor, or over particular things only. (c6.) Implied hypothec over all the property of the debtor. 1. The hypothec of the Exchequer (Fiscus) extended to all the property of its debtors, and even of the sums due to them (nomina) if they were ascertained and undisputed (liquida), whether the debt was for taxes or contract. (D. 49, 14, 46, 3 ; C. 8, 15, 1 ; C. 8, 15, 2 ; C. 4, 15, 3.) 444 MORTGAGE. 2. The husband had a hypothec for the dos,iih.e were evicted from the dotal property. (C. 5, 13, 1, 1.) 3. A wife or her heirs had a hypothec over the husband's property for the restitution of her dos. (C. 5, 13, 1, 1.) 4. Pupils and minors had a hypothec over the property of tutors and curators, as security against maladministration. (C. 5, 37, 20.) 5. So children under pofesta/t over the property of their father in respect of the property coming to them on the mother's side (bona materna). (C. 5, 7, 8 ; C. 6, 61, (5, 4.) 6. So also legatees and fideicommissarii over the property of the deceased, in security for the payment of their legacy or trusts. (C. 6, 43, 1 ; C. 6, 43, 3 ; Nov. 108, 2.) (/3.) Implied hypothec over specified property of the debtor. 1. The most important instance was Urban Hypothec. This was an implied hypothec that the landlord had over the furniture in the house hired from him, as security for the rent, and all other claims that he might have against his tenant (inquilinus) arising out of the contract of letting. (D. 13, 7, 11, 5 ; D. 20, 2, 4, pr.) This hypothec was originally confined to Rome and its suburbs, and was extended to the provinces only by Justinian. (C. 8, 15, 7.) It applied to granaries (Iiorrea), inns (deversoria), and threshing-floors (areae), as well as to dwelling-houses, but not to farms (praedia rustica.) (D. 20, 2, 4, 1 ; C. 8, 15, 5.) In one respect this implied hypothec was peculiar. It did not prevent the manumission of any of the household slaves (D. 20, 2, 6), unless owing to arrears of rent steps had been taken to enforce the hypothec. (D. 20, 2, 9.) The proper mode was to send a public official to the premises to make an inventory, and put a mark on the property, after which the tenant could not deal with it. (D. 19, 2, 56 ; D. 47, 10, 20.) 2. Rural Hypothec was not of the same extent as urban hypothec. In the case of urban hypothec, all things brought (invecta et illata) foi- use on the premises, even without the knowledge of the tenant, were included in the security ; but in the case of urban hypothec only by special agreement, and then only things brought for permanent use. (C. 4, 6, 5, 5 ; D. 20, 2, 7, 1 ; D. 20, 1, 32.) But the landlord had an implied hypothec over the crops (fructus). (D. 20, 2, 7, pr.) The hypo- thec attaches to the crop (fructus) from the moment it is gathered. 3. A person that lent money expressly to rebuild a house, or TACITA HYPOTHECA. 445 paid the cost of rebuilding, had an implied hypothec over the house. (D. 20, 2, 1.) 4. Pupils have a special hypothec over property bought by their tutors with their money. (D. 27, 9, 3, pr.; C. 7, 8, 6.) Justinian gave members of the corporation of bankers (colle- gium argentariorum) a special mortgage on immoveables, bought by their clients with money advanced by them. (Nov. 136, 3.) But generally, a person with whose money anything was bought had no hypothec over it, unless by express agreement. (G. 8, 14, 17.) B. In respect of what Obligations could a Hypothec be contracted 1 Generally, it may be said, every obligation {jus in personam) could be reinforced by hypothecation, whether it were con- ditional or unconditional, and whether past, present, or future. The obligation might be one that could not be given effect to by any action {naturalis ohligatio) (D. 20, 1, 5, pr.), unless where the result would have been to evade a positive law, such as the Senatus Consultum, Macedonianum, or Senatus Consultum Velleianum. (D. 20, 3, 2.) The person that gives the hypothec need not be the debtor ; any one may give a hypothec over his own property for an obhgation incurred by another, whether that obligation was or was not incurred on his behalf (D. 20, 1, 5, 2 ; D. 13, 7, 9, 1.) 0. What Rights may or may not be hypothecated. The general rule was that whatever could not be sold (be- cause it was not in commercio) could not be hypothecated. (D. 20, 3, 1, 2 ; D. 20, 1, 24.) Hence freemen, or res divini juris, could no more be hypothecated than sold. (C. 8, 17, 3 ; C. 8, 17, 6.) But one that had a power of sale, although not owner, as a tutor or procurator, could hypothecate. (D. 13, 7, 11, 7 ; D. 20, 1, 11, pr.) What accedes to anything hypothecated falls under the hypothec, and is added to the security of the creditor. The creditor has thus the same rights over the children of a female slave as he has over the slave herself. (C. 8, 25, 1 ; D. 20, 1, 29, 1.) So a house built on hypothecated land is subject to the hypothec. (D. 13, 7, 21.) Divestitive Facts. 1. By the extinction of the obligation to secure which the hypothec was created. The obhgation must be whollij ex- 44^ MORTGAGE. tinguished before any portion of the hypothecated property can be reclaimed. (D. 20, 1, 19 ; D. 13, 7, 8, 1 ; C. 8, 28, 6.) The creditor, as has been observed, could retain the property until all his expenses were paid (D. 20, 6, 1, pr.), and interest, if such had been included in the agreement. (D. 20, 1, 13, 6.) If the creditor refused payment, then by a proper tender of the amount due, i.e., by offering the money deposited in a sealed bag {deponere consignatum), the hypothec was released. (C. 8, 25, 2.) II. By sale of the property hypothecated. Sale extinguishes the hypothec, but does not release the debtor, except in so far as the amount obtained sufficed. (D. 12, 1, 28.) III. By voluntary release of the things hypothecated (remissio pignoris). A release of the creditor might be either express or implied. It was given by implication in numerous ways. 1. By accepting some other security ; thus by agreeing that a surety should be taken instead of the pledge. (D. 20, 6, 5, 2.) 2. By consenting to the sale of the thing hypothecated (D. 50, 17, 158), unless the hypothec was expressly reserved. (D. 20, 6, 4, 1.) The mere fact, however, of his knowing that the debtor sold the thing, did not show that the creditor consented (D. 20, 6, 8, 15), unless the sale had been duly advertised, and had taken place with his knowledge and without any objection; in which case his consent was presumed. (C. 8, 26, 6.) A creditor consented to the sale of a hypothec, if it brought 10 aurei. The debtor sold it for 5 aurei. As the terms of the consent were not complied with, the hypo- thec is not lost. On the other hand, if the creditor consented to sell it for 5 aurd, and it brought 10, the sale is final, and the hypothec at an end. (D. 20, 6, 8, 14.) If the consent was to a sale within a year, and the thing was sold after the year, the hypothec remained. (D. 20, 6, 8, 18.) A thing is pledged to Sempronius, and afterwards to Titius. With the consent of Sempronius it is then pledged to Marcus. By this Sempronius loses his hypothec, and if Marcus did not specially bargain to take his place, Titius has priority to Marcus. (D. 20, 6, 12. ) But it is really more a question of fact than of law. Did Semproniug intend to give up hia hypothec, and did not Marcus intend to take his place ? That is the question to be settled by the evidence in each particular case. (D. 20, 4, 12, 4.) Titius lent money to Seius on the security of a farm, which, however, was already hypothecated to the State. Titius paid off the money due to the State. Maevius appeared claiming a hypothec prior to the State. It appeared, however, that Maevius was a party to the deed of mortgage made by Seius to the State, in which it was warranted that the farm was free from any mortgage. Held that Maevius was estopped from setting up his prior mortgage. (D. 20, 6, 9, 1.) 3. By returning the title-deeds of the property. (C. 8, 26, 7.) 4. By returning the thing pledged to the debtor, not merely for his use during the pleasure of the creditor {precario),hVii with the intention of releasing the pledge. (C. 8, 26, 9.) ACTIONS. 447 IV. By merger (confusio). The hypothec is at an end when the debtor becomes the heir of the creditor, or the creditor acquires the ownership of the thing by purchase or otherwise. (D. 20, 6, 9, pr.) Titius, the bona fide possessor of Stichus, pledges him to Maevius, and Maevius gives Titius the temporary use of the slave. Then Gains, the true owner, dies, leaving Maevius his heir. The hypothecation is at an end, and only the holding at will (precarium) exists. (D. 13, 7, 29.) V. Destruction of the thing hypothecated. If the thing pledged perishes, necessarily all rights in respect of it are at an end. (D. 20, 6, 8, pr.) But the hypothec of raw material was considered to be terminated if that material was converted into a manufactured article ; and hence it was usual to insert words to cover the event of specification {quaeque ex silva facta natave sunt). (D. 13, 7, 18, 3.) But a mere change in a thing (mutatio rei) did not terminate the hypothec. If a house were removed, the ground was still subject to the hypothec (D. 20, 1, 29, 2) ; or if uncultivated ground were made a vineyard or built upon. (D. 20, 1, 16, 2.) VJ. Prescription. The right in rem of the creditor was lost if the thing mortgaged were possessed bona fide by anyone (other than the debtor or his heir) for the usual period of ten or twenty years. (C. 7, 36, 1 ; C. 7, 36, 2.) Remedies. A. In respect of Rights in rem of Creditor. I. To obtain possession of the thing hypothecated. The actio Seruiana (and also the quasi-Serviana, called also hypothecaria, for enforcing mortgages) owes its existence to the Praetor's jurisdiction. By the actio Serviana a man tries a suit as to the goods of a colonus (tenant- farmer) that are held by him as a pledge for the rent of the lands. By the quasi-Serviana again, creditors follow up their pledges or mortgages. (J. 4, 6,7.) 1. This action was in rem for the recovery of the thing hypothecated from the debtor, or from any third person having possession of it. (C. 4, 10, 14.) 2. Like other actions in rem, it may be brought by the heirs of the creditor. (D. 13, 7, 11, 4.) 3. When the defendant is the debtor, he cannot require the creditor first to sue himself or the sureties for the debt (C. 8, 14, 24) ; but when another had possession, he could, under the later legislation of Justinian, require the creditor to proceed first against the debtor and his sureties (beneficium onUnis s. excussionis). (Nov. 4, 2.) 4. Prescription (negative). This action could be brought against mala fide possessors up to thirty years (C. 7, 39, 7, pr.), and prior to a.d. 525, against the debtor and his heirs for ever. In favour of the latter, however, Justinus limited the actio cjuasi- Serviana to forty years. (C. 7, 39, 7, 1.) 448 MORTGAGE. II. Possessory remedies. 1. Interdicts for retaining and recovering possession ; Uti Possidetis, Vnde Vi, etc. 2. Interdictum Salvianum and Quasi-Scdvianum, for acquiring possession. " There is an interdict, too, called Salvianum, that is a means of gaining possession. It is used by a landlord to gain possession of a tenant-farmer's effects when expressly pledged for the rent." (J. 4, 15, 3 ; G. 4, 147.) These interdicts correspond precisely to the actio Serviana and quasi-Serviana. They tested the question of possession as the others did of right. The Salvianum was given to the landlord, the quasi-Salvianum to any creditor. At first the remedy was confined to the debtor, and the interdict could not be brought against a third party, as when the debtor had sold the thing. (C. 8, 9. 1.) But it seems that even against a purchaser from a debtor, a. utile i/nterdictum could be brought. (D. 43, 33, 1, pr. ) If there are two creditors having a right to the pledge, the proper remedy is the action, not the interdict. (D. 43, 33, 2.) E. Rights in persoiiam. (a) Of the Debtor. Actio figneratitia directa. 1. The object is to recover the thing pledged on payment of the debt, or, if it is sold, the surplus. 2. It is brought by the debtor or his heirs against the creditor. 3. The burden of proving the debt is on the creditor ; of the payment of it, on the debtor. (C. 4, 24, 10.) 4. Prescription. No prescription avails against the debtor or his heirs if they are ready to pay the debt. (0. 4, 24, 12.) (b) Of the creditor. Actio pigneratitia contraria. The object is to enforce the duties owing by the debtor to the creditor. BOOK IL RIGHTS IN PERSONAM, 2 F BOOK II. RIGHT IN PERSONAM— OBLIGATIO. IN Roman law, contract is classified as a branch of obligationes. Contract may be defined as consisting of those rights in personam that arise from the mutual assent of the parties, and is distinguished from those rights in personam that are established by law, irrespective of the wishes of the parties. Ohligatio is, therefore, correlative to right in personam. The duty corre- sponding to a right in personam is an ohligatio. Ohligatio is thus contrasted with dominium,. " The essence of an ohligatio," says Paul, " does not consist in this, that it makes a thing ours, or a servitude ours \i.e., it does not give us rights in rem], but that it binds another to give something to us or do some- thing for us." 1 Ohligatio is, however, of wider extent than primary rights in personam. It is exactly coextensive with actiones in personam. It is thus applied to the obligation imposed upon a person who has violated a right in rem to pay compensation or a penalty. Thus, while every right in personam was enforced by an actio in personam, every right in rem was not enforced by an actio in rem. Some rights in rem were enforced by actiones in rem, but other rights in rem were enforced by actiones in personam. The distinction was that if the existence of a right in rem were in dispute, the appropriate proceeding was an actio in rem; but if the right was admitted, and the question was whether the right had been violated, the remedy was an actio in per- sonam. The distinction is clearly brought out in the Institutes. Of all actions in which a question between parties is raised on any matter before judges or arbiters, the chief division is into two distinct kinds, namely, in rem. (for a thing), and in personam (against a person). The actions a man brings against a person under an obligation (pbligatus) to him, either by reason of contract or of wrong-doing {ex maleficio), are ^ " Ohligationum substantia rum in eo consistit ut aliquod corpus nosti'um aut servi- tutem nostram faciat sed ut alium nobis obstringat ad danckim aliquid ml faciendum vel fraestandum." (D. 44, 7, 3.) 452 OBLIGATIO. actions in personam given to meet the case. In them he alleges in his state- ment of claim that his opponent ought to give or do something, or he puts it in certain other ways. An action may be brought against a man that is under no legal obligation, but against whom some one is moving about something in dispute. In this case the actions that are given are in rem. If, for instance, a man is in pos- session of some corporeal thing which Titius affirms is his, and the possessor says he is owner, then if Titius alleges in the statement of claim that it is his, the action is in rem. Similarly, if a man brings an action to assert a right he claims over a thing — a farm for instance, or a house, or a right of usufruct, or of passage over a neighbour's farm, or of driving beasts, or of leading water from a neighbour's farm — the action is in rem. (J. 4, 6, I.) It is manifest that a precisely similar distinction may exist in the case of contract ; for either the existence of the contract may be the question in dispute, exactly as in the case of pro- perty, or the contract may be admitted, and the only question is whether it has been performed. But these two classes of questions were disposed of in the same action, whereas in the case of property, one set of questions was disposed of by vin- dicatio, and the other by actions ex delicto. In the case of rights in rem the Roman Law distinguished between primary and sanctioning rights, because there were distinctive actions for each class of rights ; but in the case of rights in personam there were no distinctive actions, and no discrimination was made between primary rights and sanctioning rights. We may classify legal topics from the standpoint of primary rights, or from that of sanctioning rights, but we cannot leap from one to the other without introducing cross-divisions. (See pp. 135-137.) Obligatio is a legal bond that ties us down so that we must needs do something, according to the laws of our State. (J. 3, 13, pr.)^ AdstrinffiTmir — " we are bound. " An obligation is something that binds a sperafied person or persons. This is an essential element of a right in pei'sonam. Alicujus solvendae rei. — Elsewhere the place o-f the word solvere is taken by three words — dare^ facere, praestare. Solvere was perhaps intended to be substituted as a generic term for those three words ,- but if so, the selection was not happy. It leads almost inevitably to the tautological language of Theophilus (xara^cc^^g/V to i'jrO'pst'^ofJjSyov)^ to pay a debt, thus introducing in the definition the very word to be defined. Moreover, solvere is a technical term in the lioman Law, designating one particular mode of terminating an obligation (iolutio) ; and it is not well to describe the general object of obligation by a word employed usuaBy for a specific divestitive fact. The intention of the Institutes doubtless is to describe in the most general language the objects of an obligation, and these are either acts or forbearances. The sphere of obligations cannot be made narrower. Por an obligation or jus in 'personam ^ Obligatio ei-t juris vinculum, quo necessitate adstrin^imur alicujus solvendae rei, secundum nostrae civitatis jura. OBLIGATIO. 453 differs from Jus in rem in this respect, that the duties corresponding to it may lie, and most commonly are, positive, whereas rights in rem imply duties that are wholly negative, consisting wholly of forbearances. The expressions dare, facere, praestare, given by Paul (D. 44, 7, 3), are taken from the forms of actions in Roman procedure. An action in personam Was an action to enforce a jus in, personam (leaving delicts out of account), and the inUntlo of the formula stated that the defendant ought to give, do, or make good (dare, facere, praestare], (G. 4, 2.) In some actions the word " give " alone was used si paret eos dare, oportere) (G-. 4, 41) ; in others, both to "give" and to "do" (quidqiiid paret Numerium Negidiu;ii Aula A'jerio dare, facire, oportere) (G. 4, 47) ; while in other cases praestare seems to have been employed. Dare has two different meanings. (1.) In its strictest technical sense it means to convey property so as to make the receiver u, true ovffner.* This was the meaning ascribed to it when used in the ancient, formal contract of stipiilatio. (D. 45, 1, 75, 10.) (2.) Often, however, dare signifies that the possession of the thing merely, and not the ownership, must he delivered. The obligation of a seller, in the contract of sale, was only to deliver the thing, not to make a good title to it. These two mean- ings coincide with the distinction between dominium and possessio. Facere is a general term, often including rfarc. (D. 50, 16, 218.)^ It is even used when dare would seem to be the better word, as when one is obliged to give up a- thing deposited with one for safe keeping. (D. 50, 16, 175.) In the foi-mulae, when a definite sum was demanded, dare seems alone to have been used ; when a sum not ascertained was demanded, then facere was added. An obligation may be not to do [non facere). A common example is when a person undertakes not to sue for a debt. (D. 45, 1, 75, 7.) Praestare does not occupy so distinguished a place in the formulae. It is found, according to Savigny, in the formulae in actions for delicts, as signifying to make good any damage or loss. "Von Vangerow suggests that it was the word employed in a certain kind of equitable actions (actiones in factum praescriptis verbis), to which the words of the old formulae did not apply. For the purpose, however, of the definition of obligation, it is tautological. All that is wanted is a tenn for acts and forbear- ances, and the best phraseology would have been to say that all obligations consist in facietido (acts), or in nonfaciendo (forbearances). The expressions already quoted exhaust all that is really essential to a definition, but there remain several phrases in the text too remarkable to be passed over without notice. Juris vinculum. — The nature of an obligation, as a tying of two persons together, is deeply fixed in Roman Law. It is implied in the old contract of nexutn. Necessitate. — This means that it has not been left to the free choice of the promiser whether he will do what has been agreed upon or not. A debtor is one from whom money can be exacted against his will.* Titius has sold a slave to Gaius, but on the understanding that either party may withdraw from the bargain. There is no obligation between them, as Titius is not bound to deliver the slave unless he pleases. (C. 4, 38, 13.) Titius sold a slave to Gaius subject to the condition that the slave's accounts should be satisfactory [si raiiones domini computasset arbitrio). If this were understood to mean to the satisfaction of the arbitrary will of the master, there was no obligation ; but the jurists held that the meaning was, if the accounts would satisfy a just man {arbitrio boni viri), and if the accounts were such as ought to be accepted, the salj was valid ; otherwise not. (D. 18, 1, 7, pr.) ^ Non videntur data, quae eo tempore qiw dantur accipientis non fiunt. (D. 50, 17, 167.) 2 Yerbum facere omnem omnirm faciendi causam amplectitwr dandi, solvendi, nunur- undi, judicandi, ambulandi. ^ Debitor is inteUigitur a quo invito exigi pecunin potest. (D. 50, 16, 108.) 454 OBLIGATIO. Keus, Ceedmor, Debitob. The word "dbligatio" applies equally to both the parties — to him that enjoys the right as well as to him that is subject to the duty ; thus we find such language as acquiring an obligation. (D. 45, 1, 126, 2; D. 23, 3, 46, pr.) In modern times, however, the tendency has been to confine " dbligatio " to the side of the debtor, and to speak o£ the creditor's interest as jus or right. In the English language, obligation has the one-sided meaning, and applies exclusively to the debtor. Agi-eeably to this use of oUigatio, we find that originally there was only one name (reus) for the promiser and the person to whom the promise was made. This term indicated the plaintiff and defendant in an action, making no distinction between them. (Fest. V. Seus, p. 273.) Afterwards " actor " came into general use for the plaintiff, "reus " continuing to designate the defendant. In like manner reus, as the name of a party to an obligation, was qualified. Seus promittendo or promittendi was the name of the promiser, the person subject to the duty ; reus stipulando or stipulandi was the name of the stipulatcyr, the person to whom the promise was made, and who had the jus in personam. (Festus v. Reus, p. 273 ; D. 46, 2, 1.) Creditor and Debitor. — These terms were at first confined to the case of loans [pecunia credita) ; but the necessity for finding suitable names for the parties to an obligation caused them to be extended. A creditor, therefore, became every person that could compel the performance of an obligation : a, debitor, every person that could be compelled to perform an obligation. (D. 5, 1, 20 ; D. 50, 16, 11 ; D. 60, 16, 10 ; I>. 50, 16, 108.) Hence a person to whom a wrong (delict) has been done is a creditor for damages or a penalty against the wrongdoer, who, in like manner, is a debitor. In the case of naturales obligationes, by a still further extension, the same words were employed in the same relative sense. (D. 46, 1, 16, 4.) DIVISION OF OBLIGATIONES. I. Civil and Pr^toiian. Of all obligationes the chief division is into two kinds ; Civil and Prae- torian. The Civil are either established by statute, or at all events recog- nised by the jus civile : the Praetorian are established by the Praetor in the exercise of his jurisdiction, and are also called honorariae. (J. 3, 13, i.) Honorariae obligationes are distinguished from civiles by the shortness of the period of prescription. Originally a civilis obligatio could not be extinguished by lapse of time ; but an obligatio honoraria, as a rule, could not be enforced after a year. When the praetor gave remedies in derogation of the jus civile, he declined his assistance unless the parties promptly sought his aid, except where the action was for the recovery of property. (D. 44, 7, 35, pr.) II. Civilis and Naturalis Obligatio. An agreement that could not be enforced by action, but was not in other respects destitute of legal effect, was a naturalis obligatio. The special importance of such agreements in the Roman Law was due to the manner of its development. The law of contract, like the other departments of Roman Law, seems to have had originally a narrow basis. The steps by which it was widened will hereafter be stated; but after all the innovations of Prastors and Emperors, there remained a considerable number of agreements, even in the time of NATURALIS OBLIGATIO, 455 Justinian, quite meriting legal recognition, but for -which no action was provided. With regard to them a middle course was adopted. The agreement could be used as a defence, or as a basis for other agreements enforceable by action. Numer- ous instances will occur in the course of the exposition : it will suffice at this stage simply to enumerate the legal effects of a naturalis ohligatio. 1. If anything due by a simple naturalis ohligatio were volun- tarily paid by the debtor, he could not demand it back by the condictio indebiii, on the allegation that it was not due. (See Div. II. Condictio Indehiti.) 2. Although no action could be brought upon a, naturalis ohligatio, yet it could be used as a set-off. (Book IV. Proceed- ings in jure. Formula System.) 3. A naturalis ohligatio could be the basis of an accessory contract. (See Accessory Contracts, postea.) 4. A naturalis ohligatio sufficed to support a mortgage. (See p. 445.) In those cases the surety could be sued, and the rights of mortgage enforced, although the original debtor could not be sued. 5. A naturalis ohligatio could be the foundation of a novatio. (See Subdiv. II. Transvestitive Facts.) III. Contract and Delict. Of obligationcs, the chief division is into two kinds. For every ohligatio arises either from contract or from delict. (G. 3, 88.) In the Digest (D. 44, 7, 1, pr.), Gaiua adds an indeterminate source of obli- gations, " obligationes aut ex contractu nasountur, aut ex malefioio, aut proprio quo- dam jure ex variis causarum figuria." IV. Justinian's division. Obligationes are next divided into four kinds, — from contract or from quasi-contract ; from delict or from quasi-delict. (J. 3, 13, 2.) As to the distinction between contract and quasi-contract, see p. 138, and be- tween delict and quasi-delict, pp. 150, 153. V. Modestinus enumerates the following sources : — (1) con- tract ; (2) Lex; (3) Jus honorarium; (4.) Neeessitas; (5) peccatum. This gives a wider definition of ohligatio than is usually to be found. An obliga- tion by lex means the general obligation to obey the law : jure honoraria, means the obligation imposed on all to act or forbear in obedience to the order of a magistrate, having the right to issue an edict. In these oases, Modestinus used dbligatio as equi- valent to the duty of obedience to the law. Neeessitas refers to the obligation of a necessary heir to take the inheritance ; but there is in no proper sense of the term, any obligation in this case ; for a necessary heir ia invested with the inheritance whether he is willing or not. jFit^t ©ibis ion. CONTRACT. Definition. 1. Definition per genus et differentiam. Contract belongs to the division of rights in personam, and not to the division of rights in rem; and it consists of those rights in personam that arise from the acts of individuals, and not of those that arise by operation of law. A contract may be said to exist when one person voluntarily undertakes a duty or duties with the intention of thereby creating in favour of another a right or rights in personam. When a duty is imposed on a person, without his assent, express or implied, conferring upon another a right in personam, there is no contract, in the proper sense of the word. The correct designation of this class is Quasi-contract. Titius gave Gains 20 awei upon an agreement that Gaius would return that amount at the end of a month. Titius has a right in personam to 20 aurei at the end of that period ; and this is a contract, because Gaius accepts the money with the intention of creating this right in favour of Titius. Julius gives Maevius 20 aurei under the false impression that he ovfes him that sum. Maevius is bound to return the money ; but as this duty is not voluntarily undertaken by him, but imposed upon him irrespective of his will, his obligation falls under the class of quasi-contract. (J. 3, 15, 1 ; J. 3, 27, 6.) Titius requests Gaius to watch his house during his absence from home. Gaius does so. The relation between Gaius and Titius is one of contract. Julius goes away from home, leaving no one to look after his house. Bad weather comes on, and Maevius, to prevent the house being spoiled, eaters and takes charge of it. Maevius acquires rights in personam against Julius, but as it is without the knowledge or consent of Julius, they belong to the head of quasi-contract. (J. 3,27, 1.) Stichus, in consideration of being manuuiitted, promises, in the customary way, to work for his master two days in every week. This is a contract, because the duty is voluntarily undertaken by Stichus, with the intention of giving his master a right to a portion of his services after manumission. Sempronius manumits his slave Stichus. Sempronius falls into poverty, but Stichus prospers and amasses wealth. Sempronius has a right of maintenance from Stichus. Inasmuch, however, as this right does not arise from any promise of Stichus, DEFINITION OF CONTRACT. 457 but belongs to Sempronius in eoneeqiienee of the manumission, it is of the nature of quasi-contract. Titius, being compelled to go abroad, leaves an imbecile son in the charge of Gains, who, as a recompense for his trouble, is allowed to take the rents of a farm. This is a case of contract. Julius by will appoints Maevius tutor to his son. Maevius, having no legal ground of exemption, is compelled to accept the office. The rights of the son as against Maevius arise not from contract, but from quasi-oontraet (J. 3, 27, 2.) Julius in his Will said : " I give and bequeath my slave Stichus to Maevius." This is a direct bequest of the ownership, and therefore Maevius has a right in, rem in respect of Stichus. Julius in his Will said : " I charge my heir Sempronius to give my house at Capua to Maevius, and to keep it in repair." This gives Maevius a right in pm-sonam in respect of the house and repairs ; but as Sempronius is bound, not by his own will, but by the directions of Julius, the right of Maevius arises from quasi-contract. (J. 3, 27, 5.) 2. Analytical definition. The following is the definition given in the Indian Code. (Act No. IX. of 1872, § 2.) When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal when accepted becomes a promise.' Every promise and every set of promises forming the con- sideration for each other is an agreement. An agreement enforceable by law is a contract. The three elements of a contract are thus proposal, accept- ance, and the additional requirements, if any, to support an action ; generally, in English law, a valuable consideration. Agreements enforceable by action in the Roman Law are called (1) contractus, or (2) Pacta Frcetoria, or (3) Pacta Legitima. These terms will be explained more fully hereafter. An agreement is a conventio or pactum. Paetmn est duorum consensus atque conventio. (D. 50, 12, 3, pr. ; D. 2, 14, 1, 3.) Pollicitatio is a proposal, not accepted, as a vow. Such a pro- posal did not create a legal obligation. {Ex nuda pollicitatione nulla actio nascitur.) (Paul, Sent. 5, 12, 9.) But if a promise were made of a gift for the public in consideration of honours bestowed upon the promisor, or a public work was actually commenced, especially if the public incurred expenses on account of the promised gift, the promiser was compelled to perform his pollicitatio. (D. 50, 12, 3, pr. ; D. 50, 12, 1, 1-5.) 458 CLASSIFICATION OF CONTRACTS. Ari-angement of Contracts by Justinian. And first let us look at those that arise from contract. Of these there are four kinds. For contracts are made by acts {re\ by words, by writing, or by consent. (J. 3, 13, 2 ; G. 3, 89.) I. Contracts re (acts). 1. Mutuum. 2. [Condictio Indebiti.]. This belongs to Quasi-contract 3. Commodatum. 4. Depositiim. 5. [Pignus.] Should be under the law of property. II. Contracts verbis (words). 1. Stipvlatio. III. Contracts Uteris (writing). IV. Contracts consensu (consent, without writing or acts or special forms). 1. Em/ptio Venditio (sale). 2. Locatio Conductio (hire). 3. Societas (partnership). i. Mandatum (agency). Arrang-ement of the Law of the Contract. For reasons to be given hereafter more in detail, the arrangement followed in the present work departs to some extent from Justinian's order. The several contracts are arranged according to the principles upon which they are based. Those principles are three in number : — First, Formal Contracts. In this class the validity of the contrast depends upon the observance of certain formalities. Second, Equitable Contbacts. These are bilateral contracts, that give rise to an obligation only when one of the parties has actually performed his part of the en- gagement. In this event, the other party is compelled also to perform his promises. This class corresponds to contracts re. Third, Contracts for Vaiuable Consideration. This corresponds nearly to the class erroneously described by Gaius and Justinian as made by consent alone. I. Formal Contracts. 1. [^Nexum.l 2. Stipulatio. 3. \BxpensiZatio or Nomina transcnptitia.1 II. Equitable Contracts. 1. Mutuum. I 2. Commodatum. 3. Depositum. 4. Mandatum. III. Contracts for Valuable Consideratiom 1. Emptio Venditio. . 2. Locatio Conductio. 3. Societas. NEXUM. 459 SUBDIVISION I. First Part. — Only One Creditor and One Debtor. First.— FORMAL CONTRACTS. I.— NEXUM. The solemn transaction joer aes et libram, which in its applica- tion to slavery, joaiWa potestas, manus, and ownership, has been already discussed, is found to occur in contract, and also in wills ; so that there is no department of the substantive law in which it fails to occupy a conspicuous place. The fact is cer- tainly noteworthy, — that by one single ceremony, although doubtless not with the same words, a man obtained a wife, bought his slaves, emancipated his children or delivered them up in bondage for their transgressions, gave away or acquired land, made contracts, and finally regulated the devolution of his property to his successors. But of all the uses of the form per aes et libram, that concerning contract is the one, not certainly of the least interest, but of which least is known. It is an undoubted fact that a right in personam could be created per aes et libram, but in what manner and subject to what limitations, the sources do not enable us to say. Varro and Festus have preserved evidence of the bare fact, and Gains, who gives us some information in respect of the divestitive facts of nexum, says nothing as to the way in which a contract ^«r aes et libram could be made, nor what were the restrictions placed upon that mode of creating contracts. Fi om what Gains says of a release per aes et libram it may be confidently inferred that the nexum applied to something short of the class of fungible things. It applied undoubtedly to things that were dealt with by weight, also to things dealt with by number, if the amount was definite, but it was a moot point whether it applied to things that were dealt with neither by weight nor number, but by measure. (G. 3, 175.) ll.—STIPULATIO. Definition. A contract made by words is formed by a question and an answer, when we stipulate that something shall be given us or done for us. The name stipulation is used, because stipulum, among the ancients, was a word meaning firm— itself, perhaps, derived from stipes. (J. 3, 15, pr.) 460 FORMAL CONTRACTS. The derivation of "stipnlatio" given by Justinian is taken from Paul. (Paul, Sent. 5, 7, 1.) Festus attributes it to siips (whence stipendium), a small coin. A third derivation is stated by Isidorua (Orig. 5, 24, 30), from stipula, a rod. The theory of this derivation is, that it was enstomary in maMng a, promise for the two parties to lay hold each of an end of a rod, and break it, so that by joining the broken ends together there would be evidence that some contract had passed between them. Such a usage is not unknown, but there does not appear to be any extrinsic evidence in supportof it. The question of derivation is not altogether without interest historically. The ancient name of the verbal contract, always called stipulatio by the jurists, seems to have been "sponsio," and in the early history of the stipulation, "spondeo" was the only word that coald be employed with efficiency. Paul says that every stipulation was properly called sponsio. G. 3, 105.) The answer must, however, always be in spoken language. Thus r S. Will you give (daiis) ? P. Why not {quidni) ? This is a good stipulation, but if the promiser had answered only by a sign or nod, it would not have been a. stipulation at all. (D. 45, 1, 1, 2.) 2. The question and answer ought to be consecutive; if 462 FORMAL CONTRACTS. anything intervene between them, there is no stipulation, (D. 45, 1, 137, pr.) The parties also must necessarily be within hearing distance of each other. 3. The question and answer must agree, but substantial agreement was enough, although the previous terms of the question were not repeated in the answer. (D. 45, 1, 137, pr.) An advance is to be remarked between the time of Gaius and Justinian. Again, a stipulation is void if the question and answer do not agree ; as when a man stipulates that you shall give ten aurei, and you promise five ; or mce versa. It is void too if he makes a simple stipulation, and you pro- niise conditionally, or vice versa j if only you expressly say so ; as when a man stipulates under a condition or for a particular day, and you answer, " I undertake for to-day." For if you were to answer only, " I promise," it would appear to be a briefly-worded undertaking for the same day, or under the same condition ; since it is not necessary in answering to go again over everything that the stipulator has expressed. (J. 3, 19, 5 ; G. 3, 102.) Stipulator. Will you give me 100 aurei before the Kalends? Promiltor. I will give you 100 awei on the Ides. — This is void, because the pro- miser agrees to a longer time than is asked. (D. 45, 1, 1, 3.) S. Win you give me 10 aui'ei on the Kalends of January or February ? P. I promise. — This is good for February, but not for January. (D. 45, 1, 12.) S. Will you give me Stiohus or Pamphilus ? P. I will give you Stichus. This is void, because it makes a simple categorical mstead of a disjunctive promise. (D. 45, 1, 83, 2.) S. Will you give me 10 aurei ? P. If my vessel arrives from Asia I will. This is void. (J. 3, 19, 5 ; D. 45, 1, 1, 3.) ,S. Will you give me 10 ? P. I wiU give you 20. 5. Will you give me 20 ? P. I will give you 10. According to Justinian in the text, these promises are altogether void ; but this decision conflicts with the text of the Digest. Generally the rule is laid down in regard to money, that the greater includes the less ; and therefore, if one promises 20, the promise is good for 10, if 10 was asked. (D. 60, 17, 110 ; D. 45. 1, 83, 3 ; D. 45, 1, 1, 4.) S. Do you promise to give 10 or 5 ? jP. I promise. — In this case, according to Pomponius, 5 wiU be due. (D. 45, 1, 12.) II. Form of stipulation when more than one thing is promised. Whenever several things are included in one stipulation, if the promiser answers simply, " I undertake to give," he is liable for all. But if he under- takes to give one of them, or several, then an obligation is contracted as regards those for which he has undertaken. For of the several stipulations only that one (or some) seem complete, since we ought to stipulate and to answer for each thing separately. (J. 3, 19, 18.) S. Do you promise to give Stichus and Pamphilus ? P. I promise Stichus. — This is held to be a good stipulation for Stichus. (D. 45, 1, 83, 4.) STIPULATIO. 463 S, Do you promise Stichus ? P. I promise both Stichus and Pamphilus. Tliia is also good for Stiohus. The question and answer are regarded as crowding two stipulations into one ; and they are good so far as question and answer agree, bad in so far as they do not a^ree (D. 45, ], 1, 5.) III. Wi'itten stipulations. A stipulation was essentially an oral contract. Nevertlieless, when writing became a general accomplishment, it was usual to make a written record of every important transaction ; and such writings necessarily carried great weight with judges. Ultimately, a written stipulation carried with it two great advantages : it fortified the two weak points of the stipulation. These weak points were (1) the necessity of proving the actual presence of the parties, and (2) of proving that the form of question and answer was observed. 1. A stipulation in writing was conclusively presumed to have been made in the interrogative form. (Paul, Sent. 5, 7, 2 ; D. 45, 1, 30 ; D. 45, 1, 134, 2 ; C. 8, 38, 1.) If it is written in a legal document that a man has promised, this is held valid, just as if a question had first been put, and then he had answered. (J- 3, 19, I7-) It seems that in agreements that were really not in the interrogative form, a custom grew up of affirming in writing that one put the question and the other the answer [Rogavit Titius spopondit Maevivs) ; and it was held that upon such an agree- ment an action ex stipulatu could be brought, unless it was clearly proved to have been the intention of the parties that no stipulation should exist. (D. 2, 14, 7, 12.) 2. A stipulation in writing affords an almost conclusive pre- sumption that the parties were both present. (C. 8, 38, 14.) Again, an obligation made by words is void if formed between persons not present. But this furnished matter for lawsuits to contentious men who some time after perhaps denied such allegations, and contended that either they or their opponents were not present. A constitution of ours, therefore, written to the advocates of Cssarea, was brought in to quicken the decision in such suits. By it we have provided (C. 8, 38, 14), that all such writings as bear on their face that the parties were present, are in any case to be believed, unless the party that employs such audacious allegations can show by the most unquestionable proofs, either in writing or by competent witnesses, that the whole of that day on which the document was drawn up either he or his opponent was elsewhere. (J. 3, 19, 12.) Eemedy. From this two actions proceed ; a condictio if the stipulation is definite, an actio ex stipulatu if it is indefinite. (J. 3, 1 5, pr.) 1. The condictio, here referred to, has a history elsewhere to be described. It was introduced (or profoundly modified) by the lex Silia (e.g. 244 (?) p. 62), for the re- 464 FORMAL CONTRACTS. covery of epeoifio sums of money (ccrta pecunia). A few years later (ciroa B.C. 234 (?) ) it was extended by the lex Galpurnia to the recovery of any specific thing {omnis eeria res). At a sobaequent period, it was still further enlarged to include indeterminate objects : i.e., where the plaintiff did not de- mand a specific sum or thing, but in general terms " whatever the defendant ought to do or give " (quidquid pa/ret dare facere oportere). When the object was specific, the action was called condictw eerti ; when not specific, condictio incerti. [Sometimes the latter was called actio ex stipulatu, as in the text. 2. When the claim is indeterminate, the measure of damages is the loss sustained by the plaintiff in consequence of the breach of the contract {quanti actoris intersit). (D. 45, 1, 113, 1.) Of course, when a definite sum has been promised, that is the measure of damages. The time selected for the purpose of estimating the damages, was the last moment that was fixed for the performance of the promise (D. 42, 1, 11) ; and if no time were fixed, then the litis contestatio. The defendant had a right to perform his promise up to the litie contestatio, but if he performed it after that, was nevertheless condemned as if he had not. (D. 45, 1, 84.) Application of Stipulation. The stipulation was greatly resorted to as a convenient mode of making contracts by private itidividuals ; but it was also extensively employed in judicial processes. This use of stipula- tions is worthy of notice. The Praetor, for example, instead of giving an order that a person should be responsible, if by the fall of his house his neighbour's property was injured, called upon the owner of the ruinous premises to promise that he would be responsible for any damage that might result. This procedure seems, at first sight, strange. Whether by the direct or by the circuitous process, the free will of the person bound was equally disregarded. He was no more at liberty to refuse to promise to be responsible, than he was to deny such respon- sibility if it were directly imposed upon him. But it is much easier to get a man to promise not to do some particular thing, than, when it is done, to acknowledge it to be wrong, or to give compensation. The real meaning of the institution of judicial Btipxilation is — the weakness of the executive. The sovereign goes &o far as to make his subjects promise not to misbehave, but he is not strong enough to punish them for acts that they have not themselves coDdemned beforehand. Some stipulations are yz«ftV2a/,fj, some Prffitorian ; some are dtre to con- vention, and others are common, being, Prffitorian as well aa judiciales. (J. 3, 18, pr.) Stipulations due to convention arise by agi-eement between the two parties : that is, neither by order of the judex nor by order of the Prsetor, but by agreement of those that make the contract. Of these there are as many kinds (I may almost say) as there are of objects of contracts. (J. 3, 18, 3.) Judicial stipulations are really not contracts at all ; they observe the forms but not the spirit of contract. (D. 45, 1, 52.) STIPULATIONS IN JUDICIAL PROCEDURE. 465 PrEEtorian stipulations proceed from the simple duty of the Prstor ; as, for instance, stipulations against doing threatened damage or for the payment of legacies. The term Praetorian ought to be taken so as to include those due to the Aediles ; for these too come from a magistrate's jurisdiction. (J. 3, 18, 2.) 1. Stipulatio Damni Infecti. — The object of this procedure, o£ which the stipulation was only a preliminary and not indispensable step, was to secure compensation for damage that might be done by a house falling down, or by any work or construction upon any land, public or private. (D. 39, 2, 19, 1.) The grant or refusal of the stipulation was entirely in the discretion of the Praetor, who paid regard to the pro • bable injury that might he occasioned, and not to the question whether the petitioner was strictly a neighbour or not. (D. 39, 2, IS, 3. ) If the threatened damage arises from anything on a man's own land, or on which he has a servitude, it is enough if he promises by stipulation ; he need not give security ; but it the damage is threatened by the act of a person not owner or bona fide possessor, he must also give sureties. (D. 39, 2, 30, 1 ; D. 39, 2, 13, pr.) The stipulation was usually made for a certair length of time, so that if no damage occurred within that time the promisor would be free. It was not considered fair that a promise of this kind should hang indefinitely over a man's head. (D. 39, 2, 13, 15.) But at the end of that time it could be renewed, if the Prstor thought fit. (D. 39, 2, 15, pr.) A peculiarity of this judicial stipulation was that it availed not only against the promiser and his heirs {like contracts generally), but against every one that succeeded him in the ownership of the property in respect of which the stipulation was made. If the owner refused to make the stipulation, the petitioner was put in possession, that is, had custody only (nuda custodia) (D. 39, 2, 15, 20) ; but after a time he could apply for possession (possidere), such as would ripen by usucapio into ownership. (D. 39, 2, 15, 21.) 2. Stipulatio legatorum servandorum causa {for security of legacies). This was a procedure analogous to the former. An heir that was bound to pay a legacy at a future day was compelled to promise by stipulatioa that he would meet the claim when due, and also to give sureties ; if he could not or would not, the legatee wjis put in possession. (D. 36, 3, 1, 2.) Stipulationes judiciales are those alone that proceed merely from the duty of a judex J as the giving security against fraud, or to follow up a slave that has taken to flight, or to restore his price. (J. 3, 18, I.) 1. Stipulatio de dolo. — When a bona fide possessor was sued by the real owner, he was obliged, say in the case of a slave, to promise that he would not wilfully hurt the slave ; more especially if, after the suit began, the period of usucapio elapsed, and the possessor, being technically ovraier, could manumit or pledge the slave. (D. 6, 1, 45 ; D. 6, 1, 18.) 2. De persequendo servo restituendove pretio. — Stipulation to pursue a slave or return his price. A man dies bequeathing a slave to a legatee. Before the slave is delivered he runs away. If the heir was careless, he must pay the legatee the value of the slave ; but if he was not in fault, then he simply promises, if the slave should be caught, to give him up, or pay his value. {D. 30, 1, 47, 2.) Gaius, however, in another passage (D. 30, 1, 69, 5), speaks as if the heir were bound to take active measures of pursuit. Common stipulations are such as this — that the property of the pupillus shall be in safety. For both the Prsetor and the judex (at times) order that such security shall be given if affairs cannot otherwise be cleared. Another instance is the stipulation that certain proceedings shall be ratified. (J. 3, 18, 4-) 2 G 466 FORMAL CONTRACTS. 1. Stipulation by Tutor. (See Tutda.) 2. Stipulatio de rata belongs to the subject of Procedure. [See Book IV.] Other Verbal Contracts. The stipulation was not the only verbal contract recognised by the Roinan Law, although it was immeasurably the most important. There were also the Dictw Dotis the and ohligatio operarwm, XJlpian says a dowry -{dos) could be given, or promised with or without stipulation. {Dos datur, ml dicitur, vel promiuitur.) The same language is found in a constitution of Arcadius.and Honorius (a.d. 396) preserved in the C. Th. 3, 12, 3, with the additional statement ithat this triple mode of constituting a dos was in accord- ance with the ancient law. (1.) In the dictio there was.no interrogation, and apparently no particular form of words. (2.) Anyone could promise a -dos by -stipulation, but certain persons only could use the dictio ; namely, the woman about to ;be married, her father or other ascendant in the male line, or her debtor by her order, ;(Ulp. Frag. 6, 2.) Ohligatio Operarum was another verbal promise sanctioned by the law. An account of it win be found under theiefld of Ereedmen (Div. II. Libertini). III. — ExPENSiLA Tio or Nomina Transoriptitia. In the old times of republican simplicity, the Romans displayed a religions exactness in keeping their household accounts. According to Dionysiug, every Roman was obliged by the censor, at the making of the census, to take an oath that his books were accurately and honestly kept. The custom was to jot down each day the items of income and expenditure as they occurred {adversaria), and to transfer these once a month to a permanent book, called Codex or Tabulae aecepti et expensi. (Cic. Pro. Rose. Coim. 1, 1.) The daily entries (adversaria) were made without order, and were soon rubbed out ; the codex was well arranged, like a ledger. (Cic. Pro. Rose. Com. 3, 6.) Whether the temporary entry in "the da-y-book was suiEcient to support an action on contract is not certain ; but an entry in the codex charging another as owing a sum of money was a formal investitive fact, and gave the person making the entry a right in pej'sonaw for the amount. It was not necessary that prior to the entry any sum sTiould have been due ; it was enough if the intending debtor consented to the entry. Theo- philus gives us one form in which the entry was made.^ The entry in the codex served the same purpose as the interrogative form in stipulation. It created a contract; it was not merely evidence that a contract existed. If an action ^ " CenJInm aureos, quos, mihi ex causa locationis debes, ea^msoa tibi tuU I Expensoa mihi tidisti." (Theoph. ad J. 3. 21. pr.) EXPENSILATIO, NOMINA TRANSCRIPTITIA. 467 were brought for the money, the judge could not go beyond the writing ; if the sum were entered, it must be paid. Hence, if, on the promise of a loan, an intending debtor allowed such entry to be made in the codex of his creditor, he could not refuse payment on the ground that he had never received the money. Writing that was mere evidence of a pre-existing contract was called nomina arcana. The case is different with the entries called nomina arcaria; for in them the obligation is made by acts {re), not by writing ; since they hold good only if the money is actually counted out. This counting of the money makes an obligation re. We shall therefore be right to say that arcaria nomina do not make an obligation, but afford evidence that an obligation has been made. (G. 3, 131.) Hence it is wrong to say that by arcaria nomina even aliens come under an obligation, for they come under it not by reason of the entry in itself, but because the money is counted out. This kind of obligation belongs to the Jus Gentium. (G. 3, 132.) In the case put by G-aius, the obHgation to restore the money lent, as will be seen presently, arose from the actual lending, and not from the written attestation ; so that if the latter had not existed, the obligation would still have been perfect. It was usual to commit stipulations to writing in the time of Cicero (Top. 25 ; Ehet. 2, 9), but the obligatory force of the transaction was not altered. It was the stipulation that gave rise to the action, not the writing, which was merely evidence. The question has been asked, whether an entry in the books of the creditor, without the knowledge or consent of the debtor, made an expensilatio f But the answer should not be doubtful. It is absurd to suppose that one man could make another his debtor by contract without his consent. If that had been allowed, it would have put all the honest men in Rome at the mercy of the knaves. There is no exception to the rule, that there can be no contract without consent. No doubt could exist upon this point, but for another and very different question, — Whether an entry in the books of the debtor similar to the entry in the books of the creditor was also necessary % Cicero says it was the practice for the debtor to make a corresponding acknowledgment in his own books, and adds it is not less base to refrain from entering what one owes to another, than it is to enter as due from another what is not due. The absence of such an entry in the books of a debtor deprived the creditor of the simplest and most con- clusive proof of the debtor's assent. But he was not shut up 468 FORMAL CONTRACTS. to that ; and if he could show by other evidence that the debtor had consented to the written entry, he was entitled to succeed in his action. Cicero does not put the absence of an entry in the debtor's books higher ; it is merely evidence worth little or much, according to the character of the alleged debtor. The Expensilatio could not be conditional. It purported to be a statement of a sum actually due, and consequently the debt could not depend on the happening of any future event, or be suspeuded till a future day. (Vat. Frag. 329.) If we had only the text of Gains, a serious doubt would arise whether the expensilatio was really an original means of creating rights in personam, or only a mode of novation. (See Postea, Novatio, Expromissio.) An obligation may be made by writing, as in the case of transferred entries (nomina transcriptitid). Now a transferred entry is made in two ways, either from thing to person, or from person to person. From thing to person, if what you owe me by reason of sale, or hire, or partnership, I set down as paid out to you. From person to person, as when what Titius owes me I set down as paid out to you, supposing, that is, that Titius has offered me you as a debtor in his room. (G. 3, 128-130.) If these were the only uses of the expensilatio, it would not rank as an original mode of creating an obligation. But a case related by Valerius Maximus (viii. 2, 2) shows that although perhaps it was usually employed for the purpose of novation, it was not always so. C. Visellius Varro, being dangerously ill, allowed a woman (Otacilia), with whom he had been living, to put down in her books a sum of 300,000 sesterces as due by him {expensa ferri sibi passus est), with the intention that if he died she should claim that sum from his heirs. Visellius recovered, and was sued by OtaciUa for the money. C Aquilius Gallus (Prsetor, B.C. 65), after consulting with the leading men, refused the claim on the ground of immoral consideration (libidinosa liberalitas), not because there was no pre-existing obligation. This case shows that an obli- gation might be created by entry in the codex. ChibogRAPHA, Syngraphae. — The codex was already be- coming obsolete in the time of Cicero, and long before Gaius it had disappeared, except perhaps in the case of bankers or money-lenders (argentarii) ; and the nomina transcriptitia con- sisted of detached written affirmations and acknowledgments of debt. A Chirographum was kept by the creditor only, and was signed by the debtor. EXPENSILATIO, NOMINA TRANSCRIPTITIA. 469 Syngraphae were signed by both parties, and preserved for both. These forms of contract were of Greek origin, as their names indicate. They were both in common use in the time of Cicero, and the syngraphae were known as early at least as the second Punic War (e.g. 210). What, then, was the relation between the codex and the chirographa and syngraphae that coexisted with it ? The codex, like the stipulatio, originated in Roman customs ; and therefore, like the stipulatio, it was confined to Roman citizens. It was disputed whether aliens could use the nomina transcriptitia, and the utmost stretch of liberality was, that they might use them for novatio only, not for expromissio. Whether ahens incur an obligation by transferred entries is justly ques- tioned. For such an obligation seems in a way to belong to the/z/J civile; and so Nerva held. But Sabinus and Cassius thought that if the entry trans- ferred is from thing to person, then aliens too are bound ; but if from person to person, that they are not. (G. 3, 133.) The aliens were, however, put on complete equality with citizens by borrowing from the Greeks the written contract common to them. Besides, an obligation by writing can be made by bonds and indentures (chirographa^ syngraphae) ; that is, when a man gives a written acknow- ledgment of the debt or promise to pay — provided, however, that there is no stipulation. This kind of obligation is peculiar to aliens. (G. 3, 134.) It has been doubted whether by these chirographa a new obligation could be created, or whether they were simply written evidence of an existing contract. This latter view is inadmissible, unless we suppose that the language of Gains is inaccurate. He assumes that there is only the writing, and not a stipulation ; and that the writino" alone sufficed to constitute an obligation. We may, therefore, regard the chirographa and syngraphae as the exact equivalents of the nomina transcriptitia ; they were to aliens what the latter were to citizens. The remedy of a creditor by expensUatio was the condictio certi. CaUTIO. — Formerly an obligation was made by writing, or by entries (nomina), as the phrase was. But these entries are not now in use. Plainly, however, if a man gives a written acknowledgment of a debt, thoiigh the money has not been paid over, he cannot meet it by the plea {exceptio) that the money has not been paid, if a long time has elapsed. This has been settled very often. So it happens, as even at the present day, that he is bound by the writing, while he cannot complain ; and from that writing arises a condictio, though there was no obligation made by words. By long time in this exceptio the imperial constitutions formerly understood any time running up to five years. But that creditors might not be too long exposed to the chance of being defrauded of their money, a constitution of ours has narrowed the time, so that an exceptio of this sort cannot be brought after the lapse of two years at most. (J. 3, 21, pr.) 470 FORMAL CONTRACTS. A cautio was merely a ■written acknowledgment of a loan, and was not conclusive of the receipt of the money by the borrower ; and, what would scarcely be expected, the burden of proving the delivery of the money to the debtor rested entirely on the creditor, if the debtor denied the receipt. (C. 4, 30, 3 ; C. 4, 30, 1.) Justinian, however, in this respect, gave some compensation to the creditor by subjecting the debtor to a payment of twice the amount of the loan if he falsely denied his own writing or the receipt of the money. (Nov. 18, 8.) The cautio does not, therefore, rank as a literal contract ; and Justinian rightly says that the literal conti'act did not exist in his day. Was there any historical connection between the true literal contract {expensilatio, chirographa, or syngraphae) and the cautio? The point is obscure, but some hght may be thrown upon it by considering what was the exact difference between cJiirograpJia and cautio. The essence of the chirograph was its constituting an obligation by its own inherent strength ; the cautio was mere wastepaper but for the pre-existing contract of loan, of which it was the evidence. The difference was great, but still there was an easy descent from the ancient to the modern form. After Aquilius' Prsetorship a fraudulent chirograph was void. Thus, if a debtor were induced to give a chirograph to a person that alleged he had deposited money with another for his use as a loan, and no such deposit had been made, the chirograph would have been rendered worthless by the plea of fraud. If, however, the allegation of the creditor was not that he had deposited the money, but that he would do so, say the day after the chirograph was signed, it would probably have been difficult, if not impossible, to employ the defence of fraud. The difficulty of urging this plea lay in the fact that a chirograph was perfectly valid although there was no valuable consideration, and therefore the mere fact that the money had not been lent would not of itself have vitiated the obligation. Still, if a creditor did not give the money for which he had got a chirograph, and afterwards sued the debtor on the writing, he was dishonest, at least in bringing the action, if not in getting the chirograph. This seems recognised in a constitu- tion of Antoninus (C. 4, 30, 3), who speaks of the plea of fraud as substantially identical with the plea of non numeratae pecuniae (that the money had not been paid) {exceptio doli seu non numeratae pecuniae). EXPENSILATIO, NOMINA TRANSCRIPTITIA. 471 But in order to give complete protection to borrowers, it was necessary to give a remedy when the money had not really been lent, whether that was owing to the fraudulent inten*ion of the lender or not. This was done by the exceptio now nnmeratae pecuniae. The rule of law is the same, if a man, by pretending he will lend you money, makes a stipulation with you, and then does not pay the money. For that money he can certainly claim from you ; and give it you must, since you are liable under your stipulation. But because it is unfair that you should lose your case on that ground, it is held that youi ought to defend yourself by the exceptio that the money was not paid over. The time for this, as has been written in an earlier part of these books, has been nar- rowed by our constitution. (J. 4, 13, 2.) Like all equitable innovations, the exceptio- noit numeratae pecuniae was regarded as an indulgence, and limited to loans of money ; and at first it could be urged only within^ a year. The time was afterwards extended to five, but finally settled at two years by Justinian. (C. 4, 30, 14, pr.) If the creditor did not sue, the debtor could bring a condictio to reclaim^ the written instrument, or if the creditor were absent, by a formal notifica- tion in Court, his exceptio was made perpetual.- (C. 4, 30, 7 ; C. 4, 30, 14, 4.) The cautio thus appears to have grown out of th& chirographa by the admission within a limited time of th« plea that the con- sideration for which it professed to be granted had not really been received. It may be added that if the borrower paid interest or repaid any portion of the loan, he could not afterwards deny receipt of the amount stated in the cautio. (C. 4, 30,- 4.) Justinian, moreover, extended the remedy beyond money lent — namely, to any tilings alleged to be given {vel aliae res datae), thereby considerably enlarging the scope of the exceptio, and enabling persons to contest their own written statements. (C. 4, 30, 14, pr.) Second.— EQUITA BLE CONTRA CTS. The group of contracts said by Gaius and Justinian to be made re introduces a new class of considerations. An obliga- tion arises, not from the observance of an ancient form, but from some act or fact. This fact, or res, consisted in the delivery by one person to another of some property, with the intention of imposing duties on the receiver. The formal contracts are the offspring of the jus civile ; the contracts with 472 EQUITABLE CONTRACTS. great infelicity called "real," were introduced by the Praetor on purely equitable grounds. I. — MuTUUM (Loan). Definition. An obligation may be contracted re, as by giving a loan {mutuwn). Now a vtutui obligatio arises when the things lent are weighed, counted, or measured, as wine, oil, corn, money, bronze, silver, gold. These we count, measure, or weigh, and so give them with the intention that they shall become the property of the receivers, and that at some future time we shall have returned to us, not the same things, but others of the same nature and quality. Hence comes the name mtihmm, because I so give it you that from being ineum it becomes hium. From this contract arises the action called condictio. (J. 3, 14, pr. ; G. 3, 90.) Mutuum is akin to creditum, from which it differs only as the species from the genus. (D. 12, 1, 2, 3.) Creditum includes other than fungible things. (D. 12, 1, 2, 1.) Rights and Duties. I. Duties of the Borrower. In describing contracts limited to special subject-matter we find that the duties may be divided into two principal classes : (1.) Those that are ascribed to the investitive facts, without special agreement. These are the normal rights and duties giving the special character to the contract. (2.) Those duties that do not regularly form part of the contract, but may be added to it by special agreement of the parties. 1. The receiver was bound to restore the same kind of things he received, equal in quantity and quality (D. 12, 1, 3) ; but not the identical things. Thus, if it was money, he must restore the same amount, but not the same coins. (Frag. Ulp. Inst. 3, 1.) If corn were given, the borrower must restore corn, not wine, or anything else of equivalent value. (D. 12, 1, 2, pr.) From a text of Pomponius it would seem that the borrower usually promised to return as good as he got {ut aeque bonum nobis redderetur), but such a promise was taken for granted. (D. 12, 1, 3.) _ 2. By special agreement the borrower might be required to pay interest, not exceeding the rate allowed by law, if an agreement were made by stipulation; or even, in a few exceptional cases, by pactum, as, in loans by municipalities (D. 22, 1, 30), or loans of corn or fodder. (C. 4, 32, 12; JSov. 136,4.) Investitive Facts. — No contract of mutuum existed unless the things given were actually delivered to the borrower, or MUTUUM. 473 ■were in his possession before the contract. (D. 12.^ 1, 9, 9.) The things must be made the property of the borrower ; i.e., he must have ownership {dominium), and not mere possession (possessio). Hence, an owner alone can give things by way of mutuum, although a mere possessor can give things so as to create other real contracts. (D. 12, 1, 2, 4.) This contract might be conditional, like stipulation. (D. 12, 1, 7 ; D. 12, 1, 8.) Special Bestriotion on Mutuum. — Persons under potestas were prohibited from accepting a loan (mutuum) of money. One peculiar reservation is made in regard to such persons ; for the Senatus Consuliwn Macedonianuin has forbidden loans to persons in the potestas of their parents. He that trusts them is denied an action, not only against the son or daughter, grandson or granddaughter, in person (and that whether still in ■potestate, or now become sui juris by the death of the parent or by emancipation), but also against the father or grandfather, whether he has the descendants still in potestate or has emancipated them. The reason of this provision by the Senate was, that often sons, loaded with debt for borrowed moneys, which they used to spend in extravagance, plotted against their parents' lives. (J. 4, 7, 7.) This enactment passed, according to Tacitus, in the reign of Claudius (Ann. 11, 13), or, according to Suetonius, in the reign of Vespasian (Vesp. 11), derived its name either from Macedo, a well-known usurer ; or from Macedo, a young debauchee, whose crimes had drawn the attention of the Senate to the perils arising from spendthrift children. The words of the enact- ment are contained in D. 14, 6, 1.^ " It is determined that no one that has given money on loan to & filiusfamilias, to be paid even after the death of the parent in whose power he is, shall be given any action or claim, that so these money-lenders of the worst sort may know that no Jiliusfamilias can contract a debt that will be good in the event of his father's death." In form it did not make the loan null and void, but only refused an action to the lender. Hence, if the loan were repaid without action brought, the money could not be re- covered on the plea that it was not due. (D. 12, 1, 14.) The act applied to loans of money, but in other respects left the capacity of persons under -potestas to contract perfectly unrestricted. Thus, a son could buy or sell, or let or hire, and 1 " Placere ne cui, qui filiofamilias vmtuam pecuniam dedisset, etiam post mortem parentis ejus cujus in potestate fuisset actio petitioque daretur : ut scirmt qui pessimo exemplo fenerarent, nuUius posse fiUifamUias bonum nomcii cxpectata patris marte fieri." 474 EQUITABLE CONTRACTS. if the obligations so arising were changed into a loan (mutuum), it was still valid (D. 14, 6, 3, 3), unless the sale or hiring were merely a pretext to evade the statute. (D. 14, 6, 7, 3.) JExceptions. (1.) A son {filiusfamilias) could borrow upon his peculiwm, and to the extent of it, without exposing himself to the dis- abilities of the statute. The statute prevented him borrowing upon the strength of his expectations from his father. (D. 14, 6, 1, 3 ; D. 14, 6, 2.) (2.) The loan was valid if it were contracted with the father's consent (D. 14, 6, 12 ; C. 4, 28, 4), or received his subsequent ratification. (C. 4, 28, 7.) If the father paid any portion of the loan, his consent was conclusively presumed. (D. 14, 6, 7, 15.) (3.) When the loan was made for the benefit of the father's estate ; i.e., if it was made by the son with the intention of making his father the real debtor. (D. 14, 6, 7, 12.) (4.) When the loan was proper or necessaiy. A son, being abroad, could borrow to pay such things as his father was accustomed to allow him for his education or official duties. (0. 4, 28, 5.) A son might also borrow to pay a legal debt. (D. 14, 6, 7, 14.) (5.) The loan was valid also when the lender was mistaken or misled as to the status of the borrower, provided the mistake was such as a reasonably careful man might make, and was not an error in law. (D. 14, 6, 3.) If the borrower declared he was a paterfamilias, it was enough (C. 4, 28, 1), unless the lender either knew or might have known that he was not. (D. 14, 6, 19.) Ebmedt — The condictio certi, sometimes called actio mutui (C. 7, 35, 5), or condictio ex mutuo, was the remedy. Maritime or Commercial Loans. DEPmiTlON. — Pecunia trajeciiiia is money lent at interest (nautico foenore) with which merchandise is bought and shipped at the risk of the lender, until the goods arrive at the port of destina- tion. (D. 22, 2, 1.) It is a loan of money (1) to be converted into goods (2) that are to be sent across sea (3) at the risk of the lender. Eights op Borrower. — 1. The borrower was not bound to repay the loan, unless the goods arrived safely at their destina- tion (D. 22, 2, 3 ; C. 4, 33, 4) ; or unless they were lost by COMMODATUM, 475 other perils than the perils of the sea ; as, e.g., if they were seized by the exchequer as illicit. (C. 4, 33, 3.) 2. The interest was not limited. (Paul, Sent. 2, 14, 3.) Latterly, however, Justinian fixed a maximum of 12 per cent, per annum. (C. 4, 32, 26, 1.) 3. Usually the borrower was, by special agreement, bound to pay the expenses of a slave sent to collect the money if it were not repaid within the fixed time. To prevent disputes, it was usual to fix the sum per diem to be paid to the slave. (D. 22, 2, 4, 1.) ii. — commodatum (gratuitous loan). Definition. Again lie to whom anything is given to be used, tliat is lent free, comes under an obligatio re, and is liable to an actio comniodati. But he differs widely from a man that has received a loan (inutuum) ; for the thing is not so given hiin as to become his, and therefore he is bound to restore the actual thing itself. A thing is understood to be lent free strictly only if the thing is given you to be used without any reward being received or fixed. But if it is otherwise, and a reward comes in, then the use of the thing is let out to you {locatur) ; for a free loan (commodatum') ought to be gratuitous. (J- 3. 14, 2.) Commodans or commodator is the person that lends the thing. Commodatarius is the borrower. The commodatum is of Prastorian origin. The edict runs thus : ^ — " The PrEetor says, If it is alleged that a man has lent another anything free, I will give him a remedy therefor." As commodatum consists in the use of a thing, there could with propriety be no commodatum of things consumed in the use. But such articles might be given for the sake of show, not to be used and consumed (D. 13, 6, 3, 6) ; and even money might be lent for the purpose of a sham payment. (D, 13, 6, i.) Usus and Comviodatum. — In what respect does commodatum, which here appears among contracts, differ from usus ? In one respect they resemble each other. Both are gratuitous ; both imply the absence of consideration for the use. But the differ- ences between them are sufficiently marked to justify the arrangement of the Institutes. We may, however, premise what is not the difference. The term of the edict was not " wti," but " commodare." Labeo said use (usus) was the genus of which com- modatum was the species : that use applied both to moveables and immoveables, while commodatum applied only to moveables. But this distinction Cassius denied ; and TJlpian agrees with him ; adding that even a dweUing-house might be the object of a commodatum. (D. 13, 6, 1, 1.) Both usus and commodatum effect a separation between the ownership and the actual enjoyment of property ; but in usus the separation is serious, and lasts generally for the life of the usuary ; in the case of commodatum the use is more limited and tem- porary. The usuary had rights ira rem ; he could sue the thief, or anyone that did damage. A borrower {commodatarius) could not sue the person that damaged the article borrowed (D. 9, 2, 11, 9) ; and although he could sue the thief that stole it yet ''■Ait PrcEtor : " Quod quis commodasse dicetur, de eo judicium dabo," (D. 13, 6. 1. 476 EQUITABLE CONTRACTS. under Justinian, this was entirely in the option of the owner. The com/modatarius had not even interdict possession. (D. 13, 6, 8.) Still more striking is the difference in the investitive facts. Usus was created by testament, by mancipatio, by in jure cessio — all recognised modes of creating owner- ship. But usus could also, as we have seen, in certain cases originate in contract. Is it not the same with commodatum? There is a difference in the kind of contract. Whether the usus arose from stipulation or not, it certainly arose from a promise ; but the right of the commodatariMS begins from the delivery of the thing ; until that time he has no right whatever. The external marks correspond with a more essential difference ; in usus, the law looks to the interest of the usuary ; in commodatum, to the interest of the lender. There could be no greater mistake than to suppose that the law interfered on behalf of the borrower {commodatarius). It did not compel a man to give a loan of any- thing he had promised : it bad no intention of beneficence towards the borrower (al- though it must be borne in mind, the commodatum is gratuitous) ; but when a lender entrusted anything to a borrower, the Pr^tor required that he should not abuse the confidence reposed in him, but that he should return the property safe and sound. This was the primary object of the intervention. The comm^datuTn is, therefore, in its original scope, a unilateral contract ; it imposes duties on the borrower, but none, in the first instance, upon the lender. But the Praetor having once intervened, could not stop there. The borrower might have been put to great and unexpected expense, and it would not be fair to compel him to return the property without giving him com- pensation. The, lender must not expect the equitable intervention of the Prsetor, unless he was prepared to " do equity " as well as to receive it. Thus, incidentally, the lender miglit be subject to duties as well as the borrower ; but the duties of the borrower exist in every case ; the duties of the lender are occasional, accidental, and indirect. This, then, is the fir.st example of a departure from the strict unilateral contracts of the civil law; for even the "mutuum" w&s purely unilateral. It is a contract unilateral in its origin and scope, but which may, in consequence of circum- stances that arise, become bilateral. Eights and Duties. I. Duties of the commodatarius = Rights in personam of commodator. 1. To return the thing lent in as good condition as he re- ceived it, excepting ordinary tear and wear. 2. To use the thing for the use agreed upon. It is theft, as already explained, if the borrower fraudulently procures the loan of a thing for one purpose intending to use it for a different one, or to use it in a manner that he knows the lender would never have permitted. (J. 4, 1, 6.) A horse is lent for a journey, the length of which is known to the lender {commo- dans). The distance is too great, and the horse is hurt. The loss falls on the lender. (D. 13, 6, 23.) A horse is lent to go to battle, and is killed. The owner has no claim against the borrower {comirwdatarius). (D. 13, 6, 5, 7.) 3. The borrower must take as good care of the thing lent as a good paterfamilias, if there is no special agreement. (C. 6, 43, 1 ; D. 13, 6, 5, 7 ; D. 13, 6, 23.) COMMODATUM. 477 He that has received a loan, if by any chance mishap he loses what he received — by fire, for instance, or the fall of a house, or shipwreck, or the onset of robbers or foes — none the less still remains under the obligation. But he that has received a thing to use is in a different position. Undoubt- edly, indeed, he is compelled to show all possible diligence in guarding it ; and it is not enough for him to employ all the diligence he usually employs in regard to things of his own, if another person of greater diligence could guard the thing safely. But for force too great for him, or for the like mis- haps, he is not liable, if only it was not by any fault of his the mishap occurred. But otherwise, as if you choose to take what is lent you free from home with you and then lose it by the onset of foes or robbers or by ship- wreck, there is no doubt you are bound to restore it. (J. 3, 14, 2.) The borrower, in the case of mutuum, became owner of the thing lent. He was bound to restore not what he received, but only the same kind of thing in quantity and quality. His obligation, therefore, did not depend on the fate of the things com- mitted to him. These he could use or destroy as he pleased. But the commodatarius is not owner o£ the thing lent to him ; he has only the custody and the use of it, and according to the usual rule, accidental loss should not fall upon him, but upon the owner. Titius borrows plate from Gaius, saying he means to use it for a supper to be given to his friends. He takes it on a journey. The plate is stolen by robbers. Titius must pay Gaius the value of the plate. (D. 44, 7, 1, 4.) Loss by theft was considered to show a want of due diligence ; and accordingly if the thing lost were stolen (even if by the slave of the lender), the borrower was obliged to make good the loss. (D. 13, 6, 21, 1.) Was the borrower of a slave liable if the slave ran away ? This question, we are told, gave rise to nauch controversy. In some cases the liability of the borrower was beyond dispute, as when the slave was kept in chains, or so young as to require looking after, or the borrower had specially agreed to watch him. (D. 13, 6, 5, 6.) Exception. — The borrower was required to take good care, as nothing more than a just return for the gratuitous benefit con- ferred upon him. (D. 13, 6, 5, 2.) Accordingly, when the lender also derived a benefit from the contract, a less degree of care was required. Two friends agree to give a joint supper— one taking the charge, and the other supplying the plate. Gaius says in this case it was an opinion of some jurists that the friend in charge was responsible only for wilful misconduct {dolus), not for the want of ordinary care {culpa) ; but Gaius thinks that he might be made liable as far at least as a husband was for his wife's dos ; i.e., not for the care of a 'prudent man {goodpater- famUias), but only for such as he took of his own affairs. (D. 13, 6, 18, pr. ) A man gives dresses to his betrothed in order that her appearance may be credit- able to him. In this case, if the match goes off, and the dresses have to be returned, the betrothed is responsible only for wilful mischief {dolus), because the dresses are given as much for the glory of the intending husband as for her gratification. (D. 13, 6, 5, 10.) II. Duties of Commodator = Rights in personam of Commo- datarius. 1. The lender is bound to suffer the borrower {commodatarius) to enjoy the use of the thing according to the terms of agree- 478 EQUITABLE CONTRACTS. ment. This obligation, it must be- remembered, arises only when the thing has been delivered to the borrower. Titius lends to Gaius tablets (pupiUares or codex) in order that a debtor of Gaius' may give him a written security. Titius cannot demand back the tablets until the security is discharged. The reason is that it would be inequitable. If Titius had refused the tablets, another might have given them, or witnesses might have been procured. (D. 13, 6, 5, 8.) Upon the same principle, if Titius gave Gaius a loan of wood to repair his house, he cannot take it away until the house falls down. (D. 13, 6, 17, 3.) 2. The lender must pay any extraordinary expenses incurred in preserving the thing lent. Thus the money spent on a sick slave, or to catch a runaway slave, must be paid by the lender. (Paul, Sent. 2, 4, 1.) But ordinary expense, which is the natural equivalent for the use of the thing, must be borne by the borrower.' The borrower must, therefore, pay the food of the slaves, and even expenses for illness, if they are small in amount. (D. 13, 6, 18, 2 ; Mos. et Rom. Legum Collat. 10, 2,5.) 3. If the lender has knowingly given in loan, and the borrower unwittingly received, things mischievous or unsuited to the purpose for which they were lent, he must pay any damage that may result. Titius supplies Gaius with rotten wood to repair his house, and the house falls down. Titius must make good the loss. (D. 13, 6, 17, 3.) Julius lends vessels to hold wine or oil, knowing that they are leaky or will spoil the liquor. Julius must pay the value of the wine or oil so destroyed or lost. (D. 13, 6, 18, 3.) Maevius gives to Sempronius the loan of a dishonest slave, who steals from Sem- pronius. Maevius must make good the loss if he knew, and Sempronius did not know, the slave's character. If Maevius did not know, he may still be sued by a noxalis actio furti. (D. 13, 6, 22.) Investitive Facts. As in mutuum, the rights and duties of eommodatum arise from the delivery of the thing to the borrower. The bor- rower is not owner, and has not even possessio. (D. 13, 6, 8 ; D. 13, 6, 9.) Hence a person not owner — even a thief or robber — can give a thing in eommodatum, (D. 13, 6, 15 ; D. 13, 6, 16.) Remedies. I. To enforce the duties of the commodaiarms. 1. Actio commodati dvrecta. This is an action honaefidei. (See Book IV. as to meaning of actio bonaefidei.) If the defendant has lost the thing -without blame, he may be required to give security to deliver it up if it should again come into his possession. (D. 13, 6, 13, pr.) DEPOSITUM. 479 II. To enforce the duties of the commodator. 1. Actio commodati contraria. At present no more need be said upon this, than that everything that forms a ground for the actio contraria is a good defence to the actio directa (D. 13, 6, 18, i) ; and that, lilce other contrariae actiones, it can be brought, although the actio directa may not have been called into exercise. (D. 13, 6, 17, 1.) 2. Actio utUis commodati contraria. This is to enforce restitution when the lender has carried off the thing lent without the knowledge of the borrower, and has sued the borrower and made him pay the value of it. This action is to compel the lender to restore the price so unjustly obtained. (D. 13, 6, 21.) HI.— DEPOSITUM (Deposit). Definition. This is a contract in which one person (depositor) gives another (depositarius) a thing to keep for him gratis, and to return it on demand. (D. 16, 3, 1, 8 ; D. 16, 3, 1, 45.) This contract is distinguished from mutuum, because the ownership of the thing is not transferred, but both ownership and possession remain with the depositor. (D. 16, 3, 17, 1.) It is distinguished from commodatum because the receiver is not allowed to use it. Titius deposits with Gaius 10 aurei, giving him permission to use them if he pleased. UntU Gaius actually did use the money, the contract remained one of deposit simply. (D. 12, 1, 10 ; D. 16, 3, 1, 3i.) Julius deposits with Maevius 10 ti/wrei, and afterwards gave Maevius permission to use them. If Maevius accepts this permission, the contract is changed at once into mutimm, although he does not actually use the money. (D. 12, 1, 9, 9.) The consent of both parties is required to make a contract. If, then, Gaius accepts a. thing on deposit, on the condition that if he should wish to use it he may do so, the agreement is understood as simply giving him power to convert the contract into loan at his own pleasure. On the other hand, when permission is afterwards given and accepted, the contract is at once changed, because an agreement for use, without actual use, sufBoes to make a commodatum. The contract of deposit belongs to the Jus Gentvwm. The words of the edict are :— " If a deposit is made not in consequence of a sudden outbreak, or fire, or fall of house, or shipwreck, the remedy shall be for the loss simply. But if in consequence of the events above named, double, if the action is brought against the depositee in person. If it is brought against his heir, and it is affirmed that the loss was due to wilful wrongdoing of the deceased, the remedy shall be for the loss simply ; but if of the heir, for double the amount." ^ When the deposit was made in consequence of fire and shipwreck, etc., it was said to be made from compulsion or distress {iKcessariitm, miserdbile). 1 Prcetor ait ; " Quod neque tumailtus neque incendii neque ruinae neque noMfragii coMsa deposUum sit, in ai/m/phma [ex] earum autem rerum, quae supra comprehensae sunt, in, ipsum in duplun, in heredem ejus, quod dolo mMo ejus factum esse dicetur qui mortuus sit, in simpium, qu^od ipsius, in Aiplum judicium dabo." (D. 16, 3, 1, 1.) 480 equitable contracts. Rights and Duties. I. Duties of Depositarius = Rights in personam of depositor. A, In the Absence of Special Agreement. 1. To keep the thing safe. He is liable only for acts of wilful fraud ; but on the score of fault — that is, of sloth or negligence — lie is not liable. He is not answerable, therefore, although, through his want of diligence in guarding it, the thing is lost by theft. For he that gave a negligent friend a thing to guard, ought to ascribe the loss to his own easy-going ways. (J. 3, 14, 3.) The contract of deposit is for the benefit of the depositor alone, and therefore the depositarius is responsible only for wilful destruction of the thing or extreme negligence. The reason mentioned by Justinian can hardly be supported, because in mandatum, which was a gratuitous contract, and in some respects scarcely to be distinguished from deposit, a higher degree of care was exacted. The contrast is with commodatum, where the benefit of the contract was entirely for the borrower, although the lender also might have an advantage, if he gave the use of the thing in order to induce some one to take better care of it. (Mos. et. Rom. Legum CoUat., 10, 2, 1 ; 10, 2, 2 ; D. 13, 6, 5, 2.) A slave deposits plate with Gaius. Gaius, thinking Titius to be the master of the slave, gives it up to him. The true owner has no remedy against Gaius, who acted honestly, although in mistake. (D. 16, 3, 1, 32.) Titius deposits some plate with Gaius, and dies, leaving several heirs. Certain of the heirs demand the plate. Gaius was advised that the best course was to go before the Prsetor and obtain an order for the delivery of the plate. But even if Gaius did not take that precaution, and gave up the plate to the demandants without any inten- tion of prejudicing the other heirs, he was not liable to them. (D. 46, 3, 81, 1.) A testament is deposited for safe custody with Titius, who reads the contents aloud to his neighbours. This is gross negligence (culpa lata) ; or, if done maliciously, dolus; and in the latter case the depositarius was exposed to the a^tio injuriarum as well. (D. 16, 3,1, 38.) SemproniuB deposits plate with Gaius, and Gaius deposits it with Titius. Titius by his dolus causes the loss of the plate. Gaius is not responsible for the loss, but is bound to give Semproniua his right of action against Titius. (D. 16, 3, 16.) A slave belonging to Titius gives Gaius money to pay to Titius for his manumission. Gaius pays the money. Is he liable to Titius to restore the money deposited, because a deposit by the slave is, in law, a deposit by the master ? If Gaius informed Titius with what purpose the money was deposited with him, Titius has of course no ground of complaint. But if Gaius paid the money as if it were his own, he is liable to make good the deposit ; for, in point of fact, he has not returned it ; it is one thing to return a deposit, and another to give a thing as from oneself. (D. 16, 3, 1, 33.) 2. The depositarius must not use the thing. Such a use may amount to a theft of the use, or may merely subject the deposi- tarius to payment of interest. (C. 4, 34, 3 ; C. 4, 34, 4.) DEPOSITUM. 481 3. If without his fault the depositarius loses the thing de- posited, he must give the depositor all his rights of action against the person by whom the loss was caused. (D. 16, 3, 16; D. 16, 3,1,47; D. 16,3,2-4.) 4. To return the thing on demand, with all its produce and accessions, and without making any charge. (D, 16, 3, 1, 45 ; D. 16, 3, 1,24; D. 16,3,34.) Further, he with whom anything is deposited incurs an obligatio re, and is liable to an actio depositi. For by it he is bound to restore the thing he received. (J. 3, 14, 3.) If the depositarius is in a position to return the thing on demand, and refuses, he must pay interest. (Paul, Sent. 2, 12, 7 ; C. 4, 34, 2.) B. By Special Agreement. I. It was not unusual to make an agreement that the deposi- tarius should take as much care of the thing deposited as a good paterfamilias. (D. 16, 3, 1, 35 ; D. 16, 3, 1, 6.) In some cases the depositarius might be responsible even for accidental loss. Titius wishes to toy an estate with borrowed money, but does not wish to raise the money until the sale is accomplished. Gaius, who wants to lend, and is obliged to go abroad, leaves him the money on condition that if the purchase is made, the money shall be a loan. In this case, accidental loss of the money falls on Titius. (D. 12, 1, i, pr.) II. Duties of depositor ^ Rights in personam, of depositarius. 1. The depositor must pay all the expenses incident to the custody of the thing, as the food of slaves (D. 16, 3, 23; Mos. et Rom. Legum Collat., 10, 2, 5), or the expense of carrying anything to the place where it is to be dehvered. (D. 16, 3, 12, pr.; D. 16,3, 12,1.) 2. He must make good all damage caused by the thing deposited, if he knew that it was likely to cause damage ; as, for example, a slave given to stealing. (D. 13, 7, 31.) Investitive Facts. — As in the other contracts re, the investitive fact is the delivery of a thing, not mere consent. Hence a written instrument attesting a deposit has no value if the thing has not actually been delivered. (D. 16, 3, 26, 2.) Remedies. I. To enforce the duties of the depositarius. 1. Actio depositi directa. 1°. Damages. By the law of the XII. Tables, a penalty of twofold the value of the thing was given against a depository who did not return the thing deposited ; 2 H 482 EQUITABLE CONTRACTS. but by the Prstor, the double penalty was retained only when the deposit was compul- Bory. (Paul, Sent. 2, 12, 11 ; D. 16, 3, 18.) 2°. Condemnation brought infamy (infamia) on the depositarius. (0. i, Si, 10 ; Mos. et Rem. Legum Collat, 10, 2, 4.) (See as to Infamia, pp. 4-31-432.) 3°. It is an action bonae fidei. (D. 16, 3, 1, 23.) But no set-off was allowed (ex- cept probably in respect of expenses incurred on account of the thing deposited) : the depositarius must restore the thing without deduction of what the depositor may owe him. (Paul, Sent. 2, 12, 12 ; C. 4, 34, 11.) 4°. The oath of the plaintiff as to the value of the thing deposited is taken. (D. 16, 3, 1, 26.) 5°. Although this action is of Preetorian origin, the contract of deposit is of older date, and was enforced by an action of the civil law ; and hence this action is not Iknited to one year, but is perpetual, subject to the general rules of prescription. 2. Actio utilis depositi directa. This is the action brought by a person to whom the depositor has given his right of restitution (C. 3, 42, 8) ; or by the depositor against a person with whom the de- positarius has deposited the thing. (Paul, Sent. 2, 12, 8.) II. To enforce the duties of depositor, 1. Actio depositi contraria, regarding which nothing special is to be noted. PiGNUS. — In the Institutes, pledge (pignus) is included among contracts re. But in this work it has been placed along with the other forms of mortgage. lY. —MANDATUM. Definition. Mandate is a contract in which one person (is qui mandatum suscipit, mandatarius) promises to do or to give something, with- out remuneration, at the request of another {mandator or man- dans), who, on his part, undertakes to save him harmless from all loss. Lastly, we must know that a mandate {mandatum), unless gratuitous, ceases to be a mandate, and passes into business of another kind. For if payment is settled on, it is at once a case of letting and hiring. And (to speak generally) in all cases where the business contract is one of mandate or deposit, if the duty is undertaken without payment, the fact that payment comes in transforms the contract into one of letting and hiring. If, there- fore, you give clothes to a fuller to clean and do up, or to a tailor to mend, without settling on or promising a payment, the actio mandati is open to you. (J. 3, 26, 13 ; G. 3, 162.) Mandate is the only gratuitous consensual contract. In no other consensual con- tract was ■■'■ promise without consideration binding ; but the peculiarity of mandate is, that it exists only when there is no consideration. The gratuitous nature of the contract began to be felt as an inconvenience ; and although, strictly, payment could not be recognised, yet a sum might be agreed upon to be paid as a honorarixim (D. 17, 1, 6) ; and even a salary might in later times be paid. But it could be recovered only by special action, and was not recognised as an element in the mandate. (C. i, 35, 17; D. 17, 1, 66, 3.) MANDATUM. 483 A mandate may exist either for our own sake or for some tliird person's. For I may give you a mandate to manage business either for me or for some third person, and in both cases there will be an obligatio mandaii, and we shall be liable to one another in turn, — I for your expenses, you to act in all good faith toward me. (G. 3, 155.) The contract of mandate may be formed in five ways. For the mandate is given you either for the giver's sake only, or for his and yours, or for that of some third person only, or for the sake of the giver and some third person, or for your sake and that of some third person. But if it is for your sake only that the mandate is given you, it is superfluous. [For what you were going to do for your own sake, and acting on your own opinion, you will not be regarded as doing as the result of a mandate from me.] No obligation, therefore, arises out of it, nor any actio mandati between you. (J. 3, 26, pr. ; G. 3, 156.) It is for your sake only that a mandate comes in ; if, for instance, a man gives you a mandate to invest your money in the purchase of land rather than to put it out at interest, or vice versa. Now a mandate of this sort is rather a piece of advice than a mandate, and therefore is not obligatory ; for no one incurs an obligatio mandati by giving advice, even though it turns out ill for him to whom it is given. For each man is free to search out for himself whether the advice is good. If, therefore,, you have money lying idle by you at home, and some one urges you to buy something with it or to lend it out, even though such buying or lending turns out ill for you, he is not liable to you in an actio mandati. And so much so that it has been questioned whether he that has given you a mandate to lend money at interest to Titius is liable to an actio mandati. But Sabinus' opinion has prevailed that the mandate in this case is obligatory, for [the mandate was not a general one to lend money on interest, but a special order to lend it to Titius, and] you would not have lent it to Titius but for this mandate. (J. 3, 26, 6 ; G. 3, 156, as restored.) Tlie obligation of a mandator — i.e., of the person making the request — was to save the other harmless. In giving general advice, a person conld never be supposed to undertake that obligation. But the ground of the distinction set forth in the outset may be looked at in another aspect. The contrast drawn by Gaius between general advice to lend money and a request to lend money to » particular person, correctly illustrates the principles of the distinction. It would be absurd to infer an intention to indemnify from loss when no specific act was recommended, but a mere general preference of lending money to buying land was expressed ; but it may be reasonable to presume such an intention when a particular act is recommended in respect of a particular person. If, therefore, Sempronius had advised Titius to buy the slave Stichus, instead of lending money to Seius, and Titius had bought Stichus, and been evicted without being able to recover the price from the seller, he would doubtless have had an action against Sempronius. The question really turns on the intention of the parties ; did the mandator request the mandatarius in such a manner as to lead the latter to expect indemnification, and therefore to make an investment, or do some- thing exposing himself to loss that he would otherwise have escaped ? Aurelius Quietus gave a mandate to M« medical guest in these terms : — " At your gardens near Kavenna pray set up a tennis court, warm baths, and whatever else is necessary for your health, at my expense.'' The doctor spent 100 aurei on improvements of this nature ; but on selling hi» gardens found that the price was. 484 EQUITABLE CONTRACTS. enhanced only to the extent of 40 awei in consequence of his improvements. He can recover the balance of 60 awrei in an action of mandate. (D. 17, 1, 16.) 1. A mandate may come in for the sake of him that gives it, — as when a man gives you a mandate to manage his business, or to buy a farm for him, or to undertalje {spondere) on his behalf. (J. 3, 26, i). Titius requests Seius to buy a certain article for him out of his own money. After the thing is bought and paid for by Seius, Titius refuses to take it : Seius can sue him, not only for the price paid, but for interest. (Paul, Sent. 2, 15, 2.) An example of a general power of administration is given in D. 17, 1, 60, 4. Lucius Titius committed the administration of his property to his nephew in these terms : — " To Seius, my son, greeting. I indeed hold it according to nature that a brother or brother's children should act for a brother without any express authority ; but still if there should be any necessity for your interference, I grant you power to act for me in all my concerns, if you will ; to buy, sell, contract, and in all other ways to act as owner of all my property. I authorise aU you do, and refuse my sanction to nothing." 2. It may be for the sake of both you and the giver, — as when the man gives you a mandate to lend money at interest to a third person that borrows it for the good of the giver's property ; or when you wish to bring an action against him as surety, gives you a mandate to bring the action against the principal at his risk ; or gives you a mandate to stipulate at his risk, with a substitute for his choosing, for a debt he had owed to you. (J. 3, 26, 2.) Seius is about to sue Titius as surety, and Titius requests him to sue the principal debtor at his risk. After the changes made by Justinian, this case could not occur, as the creditor was in every instance obliged to sue the principal debtor before the surety. Titius owes money to Seius, and Sempronius to Titius. On being sued by Seius, Titius requests Seius to accept from Sempronius a promise by stipulation to pay the amount, on condition that if Sempronius does not pay the money he will. A dispute regarding an inheritance took place, and claims were advanced on the part— (1) of the heirs named in the wiU ; (2) of a paternal uncle, Maevius ; and (3) of several paternal aunts, sisters of Maevius. Maevius wrote to his sisters, saying he would share with them whatever he recovered in a suit he was about to institute against the testamentary heir. No stipulation followed. Maevius compromised the case, and got some lands and other property. Could the sisters compel him to share with them ? Yes, because a request was implied on their part to Maevius to take legal proceedings to recover the property to which they aU laid claim. (D. 17, 1, 62, pr.) 3. A mandate may come in for the sake of a third person only, — as when he gives you a mandate to manage Titius' business, to buy a farm for Titius, or to become surety for Titius. (J. 3, 26, 3.) In this case the nuiTidator was simply a surety. In what respects suretyship so constituted differed from the verbal contract of suretyship (fidejussio) will hereafter be examined. (See Accessory Contracts.) 4. It may be for the sake of the giver and a third person,— as when he gives you a mandate to act in business common to himself and Titius, or to buy a farm for Titius and himself, or to undertake for Titius and him. (J- 3. 26, 4.) MANDATUM. 485 " Titins to Seius. Greeting. — Yon are aware of the interest I take in Sempronia, and since you are about to marry her in accordance with my wishes, I desire to see you married in a manner suitable to your position. Although I know that Titia, the mother of the girl, will promise you a suitable dowry, still I, the more to win your attachment to my house, do not hesitate also to pledge my word. Wherefore, know that for whatsoe-»er sum you stipulate with her, I will be surety, and will see you paid." This is au example of a letter of mandate. (D. 17, 1, 60, 1.) 5. It may be for your sake and that of a third person, — as when a man- date is given you to lend Titius money at interest. But if the mandate is to lend him money without interest, then it is for the sake of the third person that the mandate comes in. (J. 3, 26, 5.) Eights and Duties. A. Duties of Mandatarius = Rights in personam of mandator. I. To do what he has promised. (D. 17, 1, 22, 11.) A mandate anyone may freely refuse to imdertake. Bttt if it is once un- dertaken, it must be fulfilled or renounced as soon as possible, so that he that gave it may carry out the same matter, either in person or through some one else. For unless the renunciation is so made that the whole case is kept untouched for the giver of the mandate to resolve the inatter himself, then none the less there is room for an actio mandaii, — unless, indeed, some good reason comes in for not renouncing, or for renouncing, at an unreason- able time. (J. 3, 26, II.) Paul gives instances of " good reasons,'' — sudden iUness, a necessary journey, enmity arising between mcmdator and mandatarius, or a mandator's loss of credit, and in- ability to meet his obligations. (Paul, Sent. 2, 15, 1.) The obHgation on the mandatarius is, therefore, not nnquali- fied. A person that has gratuitously undertaken a mandate is not bound to execute it unless he has the- means of doing so, and has put the mandator in a position whei'e he cannot have the commission executed by any one else. The obligation of the mandatarius can therefore be got rid of at any time, if he gives the mandator an opportunity of getting another to per- form the mandate. It would be unfair, if after having under- taken to do a service, and having made it impossible for any one else to do it, the mandatarius were at the last moment to refuse. This would be taking advantage of the confidence reposed to him, to do an injury to the mandator. If a consideration has been promised for a service to be rendered, then the person that undertakes it cannot renounce. Suppose Titius asks Seius to manage his estate during his ab- sence on a campaign. If Titius agrees to pay Seius a salary for his trouble, then Seius cannot refuse the superintendence without exposing himself to an action for damages. But if no 4^6 EQUITABLE CONTRACTS. wages are to be paid, Seius can refuse up to the time that Titius goes away, provided he gives him an opportunity to find another. It would be grossly inequitable if Seius were allowed, just at the moment when Titius was obliged to go, to throw up the management ; accordingly, in the Roman law, Seius was obliged to execute his promise, or else pay the damage result- ing from his refusal. (C. 4, 35, 16 ; D. 17, 1, 27, 2.) Hence, if no loss is actually suffered, either because there was no necessity for doing what was promised, or another did it, Seius has no- thing to answer for. (D. 17, 1, 8, 6.) II. To execute the commission as it was given, leaving no- thing undone, and doing nothing wrong. (D. 17, 1, 5, pr.-l.) If the mandatarius does not execute his commission according to its terms, he is not entitled to his counter claim against the mandator. (D. 17, 1, 41.) In the discharge of a mandate one ought not to overstep its bounds. [For if he does, the principal has an actio mandati against him for the amount of the principal's interest in its fulfilment — supposing always he could have fulfilled it ; while against the principal he has no action in turn.] If, for instance, a man gives you a mandate to spend any sum not exceeding loo aurei in buying a farm, or in undertaking something for Titius, you ought not to buy the farm at a higher price, nor to become surety for a larger sum. If you do, you will have no actio mandati against him. Sabinus and Cassius indeed held that, even if you are willing to bring the action for a sum not exceeding lOO aurei, it will still be in vain. But the authorities of the opposing school rightly think that you can bring an action for a sura not exceeding lOo aurei; and this opinion is certainly milder. But if you buy it for a less sum, you will have an action against him. For he that gives you a mandate to buy him a farm for loo aurei is understood to give you a mandate to buy it for less if you can. (J. 3, 26, 8 ; G. 3, 161.) Titius gives Seius a commission to sell a slave for 10 aurei. Seius sells the slave for 9. The sale is good ; but Seius must make up the price to Titius. (Paul, Sent. 2, 1.5, 3.) This view is not borne out by the following cases : — Titius asks Seius to sell his (Titius') farm for 100 aurd, and Seius sells it for 90. If Titius sues for his land, he will recover it unless the price is made up to 100. (D. 17, 1, 5, 3.) Calpurnius requests Attius to buy the house of Seius for 100 amrd. Attiua instead bought the house of Titius for less, although it was of greater value. Cal- purnius is not bound to accept it. (D. 17, 1, 6, 2.) Titius requests Seius to pay a sum that he owes to Cornelius. Instead of payino- it to Cornelius, Seius induces Cornelius to accept him as a substitute in the place of Titius, and afterwards has to pay the money. Although Seius has not observed the exact terms of the mandate, still this is a substantial performance. (D. 17, 1, 45, 4.) "Lucius Titius to his Gaius. Greeting. ^I request and order {manAo) you to become a surety for Publius Maevius to Sempronius ; and whatever sum Publius shall fail to pay you, I hereby inform you by this letter, written with my own hand, that I will instantly pay you." Gaius did not become surety (Jidejussor), but he gave MANDATUM. 487 » mandate to Sempromua to advance money to Maevius, Inasmuch as, in either way, Gains made himself responsible if Maevius made default, he had a remedy against Titius upon this letter. (D. 17, 1, 62, 1.) Titius requests Seius to buy a farm, without stating that he will not accept a part, but only the whole of it, Seius buys a, half. This is a, good performance. (D. 17, 1, 36, 3.) III. The mandatarius must execute the mandate honestly, and with as much care as a good paterfamilias. (C. 4, 35, 13). A mandatarius is guilty of dolus when he refuses to give up to the mandator what he has got through the mandate, and has in his power (D. 17, 1, 8, 9) ; or when he refuses to sue when it is in his power to sue. (D. 17, 1, 44.) But the mandatarius is not liable for accidental loss unless he specially undertakes that responsibility. (D. 17, 1, 39.) This obligation may be contrasted with the parallel gratuitous contract of deposit. In that contract the depositarius answers only for fraud {dolus)^ not for carelessness. The responsibility of the mcmdaiarius is said to arise from the contract being originally made between friends, with no voucher but their honour, and implying a high degree of care. Whether this is a. satisfactory reason is somewhat doubtful, when we consider that a less amount of care was required in the non-gratuitous con- tract of partnership. Modestinus (Mos. et Rom. Leg. CoUat. 10, 2, 3) states that the mandatarius answers for dolus only, not for culpa, and in this respect contrasts him with a tvior. The services of mandatarius and tutor are in each case gratuitous, yet in the former, says Modestinus, only dolus is reckoned ; in the other both dolus and culpa. But the statement of Modestinus was undoubtedly not law ; it is interesting, however, as evidence that there was not complete unanimity among the Roman jurists on the subject of the responsibility of the inandatarius. Calpurnius requests Felix to inquire into the value of an inheritance left him. Felix does so, and reports it worth 500 aurei. Upon this representation Calpurnius sells the inheritance to Felix for that sum. Really it was worth 900 aurei. Calpur- nius cannot set aside the sale on the ground of inadequacy of price, but he can sue Felix for 400 aurei, because he misled him to that extent in executing his mandate. (D. 17, 1, 42.) Titius requests Seius to inquire into the resources of Piso, who has asked him for an advance of money. Seius, willing to do a good turn to Piso, represents him as perfectly trustworthy. Titius advances money to Piso, who is really insolvent. Seius must make good the loss. (D. 17, 1, 42.) Julius being plaintifiF in a suit, appoints Licinius his procurator, who, by collusion with the defendant, allows the claim to be defeated. Licinius must make good the loss ; and if he is insolvent, an action for fraud {actio de dolo) lies against the defend- ant. (D. 17, 1, 8, 1.) Titius requests Seius to buy Famphilus for him at an auction. Seius did not bid for the slave, from a desire to please a rival bidder. Seius is answerable to Titius for the loss. Suppose, however, Seius bought Pamphilus, and the slave escaped. Is Seius liable ? Only if the escape was due to his connivance (dolus) or want of care. (D. 17, 1, 8, 10.) Sempronius requests Gaius to buy a slave, and Gains in doing so neglects to make the seller warrant the absence of defect or disease. If Sempronius suffers any loss by this neglect, Gaius must make it good. (D. 17, 1, 10, 1.) 488 EQUITABLE CONTRACTS. IV. The mandatarius must give up to the mandator all the produce of the things committed to his care (D. 17, 1, 10, 2), — the money or other property acquired by him as mandatarius (D. 17, 1, 10, 9), and all rights of action against third parties. (D. 17, 1, 43.) If the mandatarius is unable to do so in conse- quence of his own misconduct or fault, he must make good the Titius lends money to Oalpumius, and afterwards at his request Seias stipulates for the amount from Calpurnius. The effect of this is that the loan ceases to exist, and is transformed into a debt due by stipulation. Titius dies, and his heirs demand from Seius his right of action against Calpurnius, because they have no remedy upon the loan. If lltius did not intend to make a gift of the debt to Seius, Seius must allow the heirs of Titius to sue Calpurnius in his name. (D. 17, 1, 59, pr.) B. Duties of Mandator or mandans = Rights in personam of mandatarius. I. To pay the mandatarius what he has properly expended in ■executing the mandate. (D. 17, 1, 12, 9.) This includes not only the money spent in obtaining produce (fructus), but per- sonal expenses (unless included in salary), as for travelling. (D. 17, 1, 10, 9.) But luxurious expenditure is not allowed. Anything, however, of the nature of ornament added by the mandatarius may be taken away by him, if it does not injure the mandator, unless the latter is willing to pay for it. (D. 17, 1, 10, 10.) Titius requests Seius to buy Stichus for him. After the purchase, Stichus steals from Seius. Can Seius sue Titius for damages or the surrender of the slave to him? Yes, if the theft was not due to his fault. If Titius knew the character of Stichus, and did not forewarn Seius, he is liable to pay to Seius the total loss sus- tained, even if that exceeds the value of the slave. (D. 17, 1, 26, 7 ; D. 47, 2, 61, 5.) II. To accept whatever the mandatarius has bought, and in- demnify him against all obligations that he has undertaken in execution of the mandate. (D. 17, 1, 45, pr. ; D. 17, 1, 45, 5.) In a word, the obligation of a mandator was to see that the mandatarius suffered no loss from executing the mandate. As the mandatarius got nothing, so he ought to lose nothing. But this obligation was conditional ; it depended upon whether he properly performed the mandate. (D. 17, 1, 41.) If he faith- fully executed his commission, and spent money or subjected himself to obligations, it would have been a manifest breach of faith, if the mandator had refused to release him from the obliga- tions, or to reimburse him what he had spent. The mandatarius acted for the mandator, not for himself. It follows that until the mandate was executed no action lay against the mandator. MANDATUM. 489 (D. 17, 1, 45, 1.) The obligation of the mandator has thus an afBnity with the duties arising from contracts re. Since I have acted for you, and incurred certain expenditure, you are bound to indemnify me. This performance of the mandate is analogous to the delivery of a res in mutuum or depositum. The principle in both cases is the same. On the other hand, the obhgation of the mandatarius to exe- cute the contract is not absolute ; it is limited to the case where the mandator has, in consequence of the promise of the manda- tarius, not done something he would otherwise have done, and has thereby sustained loss. (D. 17, 1, 8, 6.) In this respect the position of the mandator is unique. He acquires a right against the mandatarius, not from any act (as in the other cases of equitable contracts, and the corresponding right of the manda- tarius against the mandator), but from a forbearance to do what his interests required him to do, and what he would have done but for the confidence he reposed in the promise of the manda- tarius. Hence mandate may, without impropriety, be assigned a place in the class of Equitable Contracts. Investititb Facts. — A mandate does not require to be made in any set form of words, and it may be implied from the con- duct of the parties. (D. 50, 17, 60 ; D. 17, 1, 62, pr.) Special Divestitive Facts. 1. But a mandate, although properly entered into, may be revoked so long as it had not been acted on in any way ; and thereupon is at an end. (J. 3, 26, 9; G. 3, 159.) It would be inequitable to allow a mandator to revoke a, mandate after it had been partially fulfilled, so as to escape his obligations to the vmndatarius. (D. 17, 1, 15.) 2. Renunciation of the mandatarius. The limits within which this could be done have been already mentioned (p. 485). 3. Again, if while a mandate has not as yet been acted on in any way, one of the parties — either the principal or the agent — dies, the contract of mandate is dissolved. But for convenience' sake it is a received opinion that if your principal dies, and you in ignorance of his death carry out the man- date, then you can bring an actio mandati. For were it not so, a lawful and reasonable ignorance would bring loss upon you. And similarly it is held that if Titius' steward is manumitted, and his debtors through ignorance pay the freedman, then they are clear ; although otherwise, in the strict account of law, they could not be clear, because they paid another, and not the person they ought to have paid. (J. 3, 26, 10 ; G. 3, i6o.) Remedies. I. Aclio mandati (directa). By the mandator against the mamdatai-iua. 490 CONTRACTS FOR VALUABLE CONSIDERATION. Condemnation involves infamy, if the breach of duty has been wilful. (D. 3, 2,1.) II. 1. Actio mandati [contraria). By the mandatarius against the mandator. 2. Persecutio extra ordinem for salary (honorarmm) promised. (C. i, 36, 1.) TmuD.— CONTRACTS FOE VALUABLE CONSIDERATION. The fourth group of contracts enumerated by Justinian is distinguished from the others by the absence of any special form ; they are said to be created by consent alone. The contracts made by consent are those of purchase and sale, letting and hiring, partnership, and mandate. (J. 3, 22, pr. ; G. 3, 135.) In those forms the obligation is said to be contracted by consent, because neither a form of words nor writing nor the presence of the parties is at all needful ; nor need anything be given to make the obligation actually binding, but the consent of those that are doing the business is enough. (J. 3, 22, i ; G. 3, 136.) And hence such business contracts are even made between persons not present, by a letter for instance, or by messenger. [But in no other way can an obligatio verbis be formed if the parties are not present.] (J. 3, 22, 2 ; G. 3. 136.) Again, in those contracts each incurs an obligation to the other to render what is fair and just ; whereas in contracts made by words one party stipu- lates and the other promises. (J. 3, 22. 3 ; G. 3, I, 37.) In the case of entries, one binds the other by entering the money as paid out, and that other is bound in turn. Against a man not present an entry of debt may however be made, although no verbal contract can be made with one not actually present. (G. 3, 138.) The circumstances dwelt upon in the text are that the consensual contracts are bilateral {not unilateral, like stipulation), that they are honae Jidei (not stricti juris), and that they may be completed in the absence of the parties. But mandate is not any more bilateral than deposit ; the equitable contracts are ionae fidei ; and, as Gains points out, the expensilatio does not require the presence of the parties. The mark that distinguishes this class of contracts from all others — namely, the presence of valuable consideration, the Institutes were not at liberty to mention, if for no other reason, on account of the position assigned to the gratuitous contract of mandate. I.— SALE {Emptio- Venditio). Definition. Sale is a contract in which one person {venditor, seller) pro- mises to deliver a thing to another {emptor, buyer), who on his part promises to pay a price {pretiurn). To constitute a sale, three things were required : — (1) a thing ; (2) a price ; and (3) an agreement between two persons to give one for the other. In regard to two of these elements — the consent and the thing — there is nothing peculiar or distinc- SALE. 49 1 tive, and the observations to be made upon them -will find a place in the Second Subdivision. The other element — price — requires some explanation. 1. The price must be coin. And further, the price ought to be fixed. For there can be no sale with- out a price. (J. 3, 23, i ; G. 3, 140.) Again, the price ought to be in money. For whether anything else — a slave for instance, a robe, or a farm — can be the price of another thing, is much disputed. Sabinus and Cassius think it can ; and hence the common say- ing that barter is sale, and its oldest form. For proof they used the Greek poet Homer, who in one place says that the army of the Greeks got wine for itself by bartering certain things. His words are : — " And thence too wine was got by the long-haired Achaean s, some bartering for it bronze, and others the glistening steel, some hides, and some the cows themselves, and some again slaves." But the authorities of the opposite school thought differently, and held that barter was one thing, sale another. For how else, said they, could it be made clear in a sale which was the thing sold and which the price. And it would be absurd to regard each as at once the thing sold and the price paid. [Caelius Sabinus says that if you have a thing for sale, say a farm, and I come and give a slave as its price, then the farm is the thing sold, and the slave is given as the price for receiving the farm.] But the opinion of Proculus, who says that barter is a kind of contract dis- tinct from sale, has deservedly prevailed. For he both backs up his view by other lines from Homer, and argues for it by very strong reasons. Former Emperors too have allowed it ; and it is more fully shown in our Digest. (J. 3, 23, 2 ; G. 3, 141.) It is enough, however, if part of the consideration is a price. Titius sells a house to Gains for 2 aurei, and on consideration that Gaius repairs another house. It was held that an action of sale (ex vendito) would lie against Gaius for the repairs ; but not if the only consideration was the repairs. (D. 19, 1, 6, 1.) Although the contract must be for a price, the payment may be in goods. There is nothing to hinder the seller, after the contract is made, agreeing to take goods for the price. (C. 4 44, 9.) . 2. The price must be definite. The price ought also to be definite. But if instead of this the parties agree that the thing is to be bought at the value to be put upon it by Titius, then among the ancients there were debates enough and to spare whether this constituted a sale or not. [Labeo said the transaction had no force ; and Cassius approved of this view. But Ofilius declared it was a sale ; and his opinion was followed by Proculus.] But our decision has settled the question in this way : — Whenever a sale is agreed for at a price to be fixed by a third person, the contract is to stand, but under this con- dition. If the person named fixes a definite price, then in any case his valuation must be followed, the price fully paid, the thing delivered, and so the sale fully accomplished. For the buyer can proceed by the actio ex emptoj the seller by the actio ex vendito. But if the person named is either 492 CONTRACTS FOR VALUABLE CONSIDERATION. unwilling or unable to fix a definite price, then the sale goes for nothing, as if no price had been determined on. And since this is held by us to be the law in the case of sales, it is only consistent to extend it to the case of letting and hiring. (J. 3, 23, i ; G. 3, 140.) The constitution referred to is C. 4, 38, 15. There was no contract if the determination of the price was left to the purchaser, thus, " for as much as you think fit or please." (D. 18, 1, 35, 1.) 3. The price must be real, and not merely colourable (imagi- nana venditio.) (D. 50, 17, 16.) The price may be made less as a favour to the buyer (D. 18, 1, 38), but if it is not intended to be demanded, there is no sale. (C. 4, 38, 3). 4. In the absence of fraud, the Prastor refused to cancel a sale on the ground of mere inadequacy of price. (D. 4, 4, 16, 4.) But it is stated in a rescript of Diocletian and Maximian, that ■when a thing was sold for less than half its value, the seller could recover the property, unless the buyer chose to make up the price to the full amount. (C. 4, 44, 2.) Although the language of the rescript is perfectly general (rem majoris pretii si tu vel pater tuus minoris distraxerit), some authors con- tend that this rescript applies only to land, because the example mentioned is a farm. It is a moot point whether, if the price were excessive, the buyer could withdraw from his bargain, unless the seller consented to take a fair price. Rights and Duties. Duties of Seller {Venditor)— 'RmB.i:^ in personam of Buyer {Emptor). A. In the Absence of Special Agreement. The distinction here followed is recognised by the Roman jurists. Ulpian (D. 19, 1, 11, 1) observes that in a contract honae fidei, the first principle is to carry out the intentions of the contracting parties. If the parties are silent, then the duties are such as naturally pertain to the contract. This statement is rendered more explicit by another text from Ulpian, which puts the distinction on its proper basis, that the parties when silent are presumed to abide by the recognised custom. {Ea enim quae sunt moris et consuetudinis, in honae fidei judiciis detent venire.) (D. 21, 1, 31, 20.) This points to the true origin of the group of duties now to be described. When the parties are silent, custom speaks. I. The seller is bound to deliver the thing sold {proestare, tradere rem) to the buyer. (D. 19, 1, 11, 2.) If the thing sold were SALE. 493 a res mancipi, the seller must transfer it by mancipatio. (Paul, Sent. 1, 13, 4) The seller was not bound to make a good title and vest the ownership in the buyer (D. 18, 1, 25, 1 ; D. 19, 4, 1, pr.), but he must give the buyer such possession as would enable him to triumph in a possessory suit. (D. 19, 1, 11, 13.) Hence a person could make a valid contract of sale, although he was not the owner, if he had possessio. (D. 18, 1, 28.) Indeed, if the vendor, by special agreement, promised to make the buyer owner, as well as possessor, it was held that the transaction was not a contract of sale, but an exchange. (See p. 369. D. 12, 4, 16.) In exchange or barter, the obligation on both sides was to give a good title to the ownership (dominium), and not merely to the possessio. (D. 19, 4, 1, 3.) From the circumstance that upon the sale of a res mancipi, the vendor must convey the thing sold by mancipatio, it may be inferred, not altogether without probability, that the rule in Barter obtained at first in Sale. It is the natural and the reasonable rule, since the purpose of the contract of sale is the exchange of the ownership of a thing for coin. The meagreuess of the obligation imposed upon vendors was supplemented by an obligation, in later times implied by law, to warrant the buyer against eviction. At first this duty arose only from express stipulation ; and it is probable that the obligation to give a mere possessory title originated in the same way (vacuam possessionem tradi). (D. 19, 1, 3, 1 ; D. 22, 1, 4.) A probable explanation of this anomaly has been already oflTered (p. 369). To the latest period, the rule was strictly maintained, and the only concession that appears to have been made is that, if a person, other than the vendor, attacked the title before the price was paid (whether the thing sold had been delivered or not), the buyer was not obliged to pay the price, unless substantial sureties were given to guarantee him the res- titution of his money, in case he were evicted. (Vat. Frag. 12 ; C. 8, 45, 24.) An heir sells to G-aius an estate of which Titius has been put in possession to secure a legacy. The heir cannot fulfil his obligation although he is owner. (D. 19, 1, 2, 1.) Titius has a usufruct of Gaius' farm. Gaius sells the farm to Maevius. Gaius must redeem the farm before he can give Maevius free possession. (D. 19, 1, 7.) Julius sells a farm over which a right of way exists to a neighbouring farm. This is not inconsistent with the delivery of the free possession. (D. 18, 1, 59.) Titius, heir of Sempronius, sold a farm to Septicius in these terms : — "The land of Sempronius, and all his rights thereon, you will buy for so much. " The land vf as delivered ; but its boundaries were not pointed out. Can Titius be compelled to pro- duce the title-deeds of the inheritance, and show what rights Sempronius had, and 494 CONTRACTS FOR VALUABLE CONSIDERATION, what are the boundaries ? Certainly ; and if no such title-deeda exist, Titius mnst still point out the boundaries, as fixed by usage. (D. 19, 1, 48.) A creditor to whom a farm was mortgaged, and who had possession of the receipts of taxes {chiroffrapha tributoi-um), sold it to Maevius, with a condition that Maevius should pay any tribute that might be due. The same land, on account of alleged arrears of taxes, is sold by the contractor of the district, and Maevius buys it and pays the price. Maevius can compel the creditor to deliver up to him the receipts for the taxes that have been paid. (D. 19, 1, 52, pr.) In the absence of any agreement to the contrary, a sale of a house included all that was commonly regarded as part of it, or was intended for the permanent better en- joyment of the house. (D. 19, 1, 13, 31 ; D. 19, 1, 17, 7.) For details, see D. 19, 1,38, 2; D. 19, 1, 17, 8; D, 19, 1, 15; D. 19, 1, 18, 1 ; D. 18, 1, 78 ; D, 18, 1, 40, 6 ; D. 18, 1, 76 ; D. 50, 16, 245, 1. The sale of a farm included the crop on the ground and fixtures in the soil, but not living animals, as fishes in >i pond. (D. 19, 1, 17, 1 ; D. 6, 1, 14 ; T>. 19, 1, 15 ; D. 19, 1, 16.) It did not include what was ordinarily called ruta-caesa (D. 18, 1, 66, 2), i.e., things dug up {eruta), as gravel, lime, etc. ; or cut, as trees. (D. 19, 1, 17, 6.) Tlie sale of slaves did not carry with it the slave's peculmm, unless specially agreed upon. (D. 18, 1, 29.) The obligation to deliver was conditional upon the payment of the price. The seller was not obliged to part with the thing sold until he had got his money, and the whole of his money. (D. 19, 1, 50; D. 18, 4, 22.) The vendor keeps the thing quasi pignus. (D. 19, 1, 13, 8.) Titius sells wheat to Gaius for 10 aurei, and Gaius, before the wheat is delivered to him, dies, leaving two heirs. One of the heirs cannot, by offering 5 aurei, get the halt of the wheat. Titius is not bound to part with any of it until he gets the whole price. (D. 18, 1, 78, 2.) II. Prior to the delivery of the thing sold to the buyer, the seller must take as much care of it as a good paterfamilias. (D. 18, 1, 35, 4.) He is responsible for custodia and diligentia. (D. 19, ], 36.) This obligation might be diminished or enlarged. It was diminished if the buyer refused to accept the thing, or neglected to take it away after he was bound to do so. (D. 18, 6, 17 ; D. 18, 6, 12.) If no time were agreed upon, the seller ought, after a reasonable time, to give notice to the buyer to remove the goods. (D. 18, 6, 4, 2.) If both buyer and seller made delay (mora), it was the same as if the buyer alone were in delay. (D. 19, 1, 51.) When the buyer made delay (mora), the seller was responsible only for wilful misconduct or extremely gross negligence (dolus), as in the case of a depositee. (D. 18, 6, 17.) On the other hand, if the seller refused to give up the thing at the proper time, and was thus in delay (mora), he was responsible not only for due care (diligentia), but for accidental loss. SALE, 495 Titins sells a house to Gaius. The adjoining house is in a ruinous condition and threatens to fall. Titius does not require the owner of the dangerous property to five security [cautio damni mfeeti), and before the house sold is delivered to Gaius, it is injured by the fall of the next house. On account of his negligence in not requiring security, Titius must pay for the damage sustained. (D. 19, 1, 36.) Sempronius sells a house to Septicius, hut before the time for deliver}', it is burned down by the carelessness of a slave belonging to Sempronius, and employed to watch the property. Does the loss fall upon Sempronius or Septioius ? If Sempronius showed ordinary care in selecting the slave to watch the house, he was not responsible. (D. 18, 6, 11.) Titius sells a slave to Gallus, After the sale, Titius orders the slave to do some dangerous work, and the slave breaks his leg. Is Titius responsible for the damage ? Labeo said if Titius ordered the slave to do what he was accustomed to do before the sale, and what he would have ordered him to do if the sale had not taken place, he is not responsible. Paul took a different view, and said the question was whether the work was so dangerous that a prudent man would not have ordered it to be done either before or after the sale. (D. 19, 1, 64, pr.) III. The seller must compensate the buyer in the event of his being evicted by lavv^ from the whole or part of the thing bought. (D. 41, 3, 23, 1 ; C. 4, 52, 5 ; C. 8, 45, 6.) This obligation was often created by express agreement. The technical phrase was habere licere, that the buyer should have undisturbed possession of what he bought. To the stipulation a penalty was added, in Rome, generally of twice the price of the thing sold, elsewhere, varying according to local custom. (D. 21, 2, 6.) The stipulation was kept up for the sake of the penalty, long after the obligation to pay for eviction was recognised as a duty of the seller. Hence the obligation to answer for eviction presents itself under three aspects. (1.) The buyer stipulates for a penalty in the event of his being evicted. (2.) If no penal stipulation was made, the buyer could at any time, prior to eviction, call upon the seller to make it. (3.) If neither the stipulation nor any demand for it was made, and the buyer was evicted, the seller was bound to give compensation. These three cases will be examined separately. 1. A stipulation is made, on this condition, that the seller promises to the buyer twice the price paid by him if he is evicted by law from the thing sold. If the promise were that the buyer should have undisturbed possession {habere licere), the seller was bound to pay the penalty if the buyer was evicted by any one ; if, however, the promise were that the seller and those claiming under him would not disturb the buyer, the penalty could not be exacted if an eviction were made by any other than those persons. (D. 19, 1, 11, 18.) If an eviction 496 CONTRACTS FOR VALUABLE CONSIDERATION. took place, the penalty became due {stipulatio committitiir). In order that the penalty should become due, five things must concur. 1°. The seller must have promised absolutely. Thus, if he declined to guarantee for eviction in certain cases, the penalty was not due. In selling a slave, the owner guaranteed against eviction, unless the eviction took the form of the freedom of the slave. If the slave were free at the time of sale, or were a statidiber, the buyer could not recover the penalty. (D. 21, 2, 69, pr.) 2°. The ground of the eviction (causa evictionis) must have existed at the date of the sale. A slave was sold without his peculium. The slave took away part of his peculium to his new master, who was thereupon sued for theft. The penalty for the theft exceeded the value of the slave, and the buyer surrendered the slave to his old master {noxcE deditio). The buyer was nevertheless bound to pay the price. If the theft had occurred before the sale, and the buyer had been obliged to surrender the slave, then the penalty for eviction would have been due. (D. 21, 2, 3.) 3°. The eviction mnst be by order of a court of law, and the order must not be bad in law. (D. 21, 2, 16, 1 ; D. 21, 2, 51, pr. ; C. 8, 45, 15.) If the eviction is by force, the remedy of the buyer is the interdicts to recover possession. (C. 4, 49, 17.) If the buyer goes to arbitration and loses, he has no redress against the seller, because he was not forced to go to arbitra- tion. (D. 21, 1, 56, 1.) If the judge that ordered the eviction made a mistake through ignorance or stupidity, the buyer had no redress. He was deprived of his property by the blunder of a judge, a calamity that ought to be assimilated to floods or the like, all of which losses must be sustained by the buyer. (Vat. Frag. 10 ; C. 8, 45, 8 ; 0. 45, 15.) 4°. The eviction must not be due to the fault of the buyer. If the buyer, having a good defence as possessor, but no remedy if out of possession, allows the adversary, wilfuEy or by negligence, to get possession, he must suffer the loss. (D. 21, 2, 29, 1 ; D. 21, 3, 66, pr. ; C. 8, 45, 19.) 5°. The buyer must give notice to the seller of any threatened eviction, and allow the seller to come in and defend the title. (D. 21, 2, 53, 1 ; C. 8, 45, 20 ; C. 8, 45, 8 ; G. 8, 45, 17.) The neglect of this precaution involved a forfeiture of the penalty, unless the seller was out of the way and conld not be found, or had expressly relieved the buyer from the necessity of giving him notice. (D. 21, 2, 63 ; D. 21, 2, 56, 6 ; D. 21, 2, 55, 1.) If the buyer is evicted from only a part of the thing sold, or SALE. 497 from the usufruct of it, the seller must pay twice the proportion of the price that ought to be given for what is lost, not twice the whole price. (D. 21, 2, 13 ; D. 21, 3, 14.) 2. If no stipulation were made at the time of the sale, the seller was bound to promise a penalty of double the price by stipulation, but not to give sureties for the amount. (D. 21, 1, 31, 20; D. 21, 2, 37, pr. ;: D. 21, 2, 56, pr.) This obligation seems to have rested on an edict of the Curule ^dile, the terms of which have not come down to us. It was confined, probably by the terms of the edict, to sales of articles of value — as pearls, precious stones, silk garments, slaves. (D. 21, 2, 37, 1.) It seems also that the defendant was compelled to pay double it he refused to promise. (D. 21, 2, 2.) 3. If no stipulation were made, and the buyer was evicted, the seller was bound to give him compensation. (C. 8, 45, 6 ; D. 19, 1, 3, pr. ,' Paul, Sent. 2,17, 1 ; D. 21, 2, 76.) This obliga- tion was imposed in the absence of a penal stipulation, and the seller was bound simply for compensation, not for a penalty. (D. 21, 2, 60.) The measure of damages- was not the price the buyer gave for the thing, but the loss he- suffered by the eviction. ( Quanti tua interest rem evietam non esse; non quantum pretii nomine dedisti.) (C. 8, 45, 23.) Hence the amount payable was greater or less, according as the thing increased or lessened in value. (D. 21, 2, 70 ; C. 8, 45, 9.) In no case, however, where the seller was ignorant of the flaw in his title, could he be compelled to pay more than twice the price as compensation for eviction. (D. 19, 1, 44.) _ The stipulation being for a penalty was construed strictly ; the obligation considered as- of the essence of a contract in good faith was interpreted more liberally, with less regard to the letter and more to the spirit of the contract. 1°. As regards the exception of grounds of eviction (causae evictionis). A slave is sold by Titius, ■who says; in a general way, that the slave is entitled to liberty upon the happening of an event, but without disclosing the event. If the buyer did not know the condition, he can demand compensation ; but in this case the penalty of stipulation could not be exacted. (D. 21, 2, 69, 5,), 2°. In the penal stipulation the eviction must be by law; but in this obligation honce fidei, that is not necessary ; it is enough if the thing sold were not the property of the seller. (D. 21, 2, 41, 1.) Thus, if the buyer himself subsequently becomes the 2 I 49^ CONTRACTS FOR VALUABLE CONSIDERATION. owner of the thing sold, he can recover damages as for eviction. (D. 19, 1, 13, 15.) A vase is left to Titius as a legacy upon a condition. Titius, knowing nothing of the legacy, buys the vase from the heir. He can recover the price in an action for breach of contract of sale. (D. 19, 1, 29 ; D. 30, 1, 84, 5.) Gaius sells a slave belonging to Sempronius to Titius, and Sempronius dies, leaving Titius his heir. Titius can compel Gaius to restore the price of the slave. (D. 21, 2, 9. ) The other conditions (3°, 4°, and 5°) apply equally to the general obligation and the penal stipulation. IV. The seller must suffer the sale to be rescinded, or give compensation in the option of the buyer, if the thing sold has faults (unknown to the vendor) that interfere with the posses- sion and enjoyment of it. (D. 19, 1, 13, 1.) If the seller knows of the faults and conceals them, he is guilty of bad faith (dolus), and is liable even for consequential damage. (D. 19, 1, 13, pr.) In speaking of this duty (IV.), therefore, it is assumed through- out that the seller was ignorant of any faults in the thing sold. We are left in no doubt as to the source whence this obliga- tion was added to the law of sale. At first, no obligation ex- isted except where there had been an express warranty against faults in the thing sold by the formal contract of stipulation. This explains a curious restriction in the dutJ^ The seller was not responsible for all faults, but only for those that hinder the free possession of the thing. This limit is found in the early forms of stipulations, which are ascribed to M. Manilius, who was consul B.C. 148. " That those she-goats are to-day in good health and able to drink, and that one may lawfully have them — all this you undertake ?" ^ " That those swine are sound, and that one may lawfully have them, and be guaranteed against all damage done by them ; and that they are not from a tainted herd (and have got over the fever and flux)— all this you undertake 1 " ^ These stipulations contain no penalty ; and it may be inferred that they would not have been made if the law had implied in every sale a warranty against undisclosed faults. It would thus appear that about B.C. 150 the obligation of warranty existed only when it was made expressly by stipulation. ' lUas capras hodie rede esse et hibere posse habereque recte licere, haec spondesne ! (Varro, de R. R. 2, 3, 5 ; D. 19, I, 11, 4.) ^ lUasce sues sanas esse habereque recte licere noxasque praestari neque de pecore morboso, esse spondesne ? To which some add — perfimcius esse a febri et it foria. (Varro, de K. R. 2, 4, 5.) SALE. 499 The next step was taken by the Curule iEdile, who had jurisdiction over the markets, and naturally took a special interest in the law of sale. The reason for his intervention is manifest. The seller knows, or at least has the means of know- ing, what are the faults in the thing sold, but his interest is to conceal them in order to effect a sale or enhance the price ; the buyer, on the other hand, has the strongest interest in knowing the exact worth of the thing sold, but his opportunities of knowing are very slender. (D. 21, 1, 1, 2.) There is, there- fore, nothing unfair in throwing upon the seller the obligation of disclosing any important defects in the thing he wishes to sell. This is especially important in the sale of animals and slaves. Slaves were common and valuable articles of mer- chandise, and they were liable to have serious undisclosed faults. It would have been very inconvenient if it had been as dangerous to buy a slave in Rome as it is to buy a horse in England. I. The effect of the edict of the Cnrnle ^dile was to impose on the seller an obligation to warrant the absence of certain faults in slaves, animals, and other things, with or without a stipulation. (D. 21, 1, 31, 20; C. 4, 49, 14.) If the seller did not do so, and faults were subsequently disclosed, then the sale could be rescinded, or a deduction made from the price, in the option of the buyer. (U. 21, 1, 48, 1.) " Those that are selling slaves shall inform the buyers what disease or defect each has ; which is a runaway or wanderer, or still liable to be claimed for some wrong. And all those things they shall, as in duty bound, when the slave comes to be actually sold, openly and clearly declare. If a slave has been sold despite the foregoing, or has been in a state altogether different from what was promised, with or without stipulation, at the sale, and it is alleged that in that respect a warranty ought to have been given, we shall give an action to cancel the sale not only to the buyer, but to all to whom the property belongs. On the other hand, if the slave has been impaired in value after the sale and delivery by an act of the buyer or his agent or house- hold ; or if any offspring of it has been acquired after the sale ; or if there has been any accessory to it in the sale, or the buyer has gathered any fruit, — all shall be restored. "Likewise,, if a slave has committed a capital offence, or attempted suicide, or been sent to the amphitheatre to fight with wild beasts, all these things shall be mentioned in the 500 CONTRACTS FOR VALUABLE CONSIDERATION. sale ; and if they are not, the seller shall be liable to an action. "Still more: if anyone knowingly has offended in the premises, be shall be hable to an action. (D. 21, 1, 1, 1.) " The sellers of beasts of burden shall openly and plainly declare what disease or defect each has ; and as they are sold equipped in their best harness, so shall they be delivered to the buyer. If anyone offends in the foregoing, we shall give actions against him as follows : — For the restitution of the harness, or cancelling the sale because of its non-delivery within sixty days ; for disease or defect, to cancel the sale, within six months ; for disease or defect, to obtain a deduction of the price, within one year. "If a pair of beasts of burden are sold together, and the sale is liable to be cancelled for one, the other may be returned." (D. 21, 1, 38, pr.) "In all that herein relates to the soundness of beasts of burden, the same shall be observed in regard to all other cattle." (D. 21, 1, 38, 5.) The terms of the edicts differ, but the times mentioned in the edict relating to beasts of burden were transferred to the sale of slaves (Paul, Sent. 2, 17, 5) ; and substantially the two edicts may be read together. (D. 21, 1, 38,2.) In order that the edicts should apply, the following conditions must exist : (1) The fault must exist at the time of the contract (C. 4, 58, 3) ; and (2) the buyer must be ignorant of the fault, although ignorance of the seller is no excuse. (D. 21, 1, 48, 4 ; D. 21, 1, 1, 6 ; D. 21, 1, 61, pr.) Morbus (disease). — Sabinus defines it as "an abnormal condition of the body, which impairs its usefulness " (morbus est habitus cujusque cmyoris contra naturam, qui usum, ejus facit deteriorem). (D. 21, 1, 1, 7.) Disease may be in the body generally, as fever ; or in some part only, as blindness and lameness. (D. 21, 1, 1, 8.) The want of teeth is not a disease, says Labeo, for then all newborn children would be diseased. (D. 21, 1,11.) Labeo thought the sterility of a female slave was a disease, within the meaning of the edict ; but Trebatius said it was not, if it did not arise from some special disease. (D. 21, 1, 14, 3.) Vitium, (defect) is distinguished from disease. All disease is defect, but all defect is not disease. (D. 21, 1, 11.) Morbus is a temporary, vitium is a permanent and inherent defect (D. 50, 16, 101, 2), as a one-eyed or stammering slave, a biting or kicking horse, an ox that gores. (D. 21, 1, 1, 7; D. 21, 1, 4, 3.) In regard to both morbus and vitium, it is to be observed that they included only defects of the body, not of the mind, unless the mental defect clearly arose from some bodily aihnent (D. 21, 1, 4, 2 ; D. 21, 1, 4, 3 ; D. 21, 1, 4, 1) ; and even of the bodily ailments, only those sufficiently serious to impair the usefulness of the slave or animal. (D. 21, 1, 1, 8 ; D. 21, 1, 4, 6 ; D. 21, 1, 6, 1 ; D. 21, 1, 10, 2.) Pugitivus and erro (runaway and wanderer). A runaway is one that escapes beyond the reach of his master, with the intention of deserting his service. (D. 21, 1, 17, pr.) There must be an intention to desert (D. 21, 1, 17, 3), and an actual escape beyond the control of his master. (D. 21, 1, 17, IS.) SALE. 5°^ Erro or wanderer ia one that is in the habit of stayinff away from home, wandering about with no particular object, and returning home after a time. (D. 21, 1, 17, 14.) The edict mentione a runaway, but not a thief (fur). This seems a curious incon- sistency, a thief being scarcely less objectionable than a runaway. The reason assigned is that a thief may be peaceably possessed ; but the vice of running away is one incon- sistent with the possession of the slave (habere licere). (D. 19, 1, 13, 1.) Vitium noxce. — In consequence of the rule that the responsibility for a slave's delict attaches to his master at the time of action brought, it was not safe to buy a slave without a special warranty that no such liability was attached to the slave. p. 21, 1,17, 18.) Another fault seems to have been included in the edict ; not to sell an old hand for a new (ne veterator pro novicio veneat) (D. 21, 1, 37) ; the temptation was of course to represent a slave as more docile, in order to enhance the price. (D. 21, 1, 65, 2.) It seems also that the seller was bound to disclose the nationality of the slave, otherwise the sale might be cancelled ; for the nationality was often a most material circumstance in the selection of a slave. (D. 21, 1, 31, 21.) An extension was given to the edict by the interpretation of the jurists. The edict, in terms, specifies certain faults that must be disclosed, and requires a warranty to be given orally, with or without stipulation (dictum promissumve). The jurists held that a warranty in respect of faults not specified in the edict, given orally, with or without stipulation, should have the same effect as a warranty given under the terms of the edict. (D. 21, 1, 18.) Hence, if anyone afi&rmed anything of a slave that was not true, or denied anything that was true, as saying that he was not a thief when he was, or that he was a skilled workman when he was not, then an action lay against him. (D. 21, 1, 17, 20.) But every recommendation of his goods by a seller was not construed into a warranty. Language of mere praise was scrupuloiisly distinguished from promises intended to create a liability. (D. 21, 1, 19.) If a seller said his slave was steady, you were not to expect the gravity and sobriety of a philosopher ; if he said the slave was active and vigilant, it was not to be supposed that he worked night and day. (D. 21, 1, 18, pr.) So, if the slave was said to be an artificer, you must only expect what was ordinarily looked for in an artificer. (D. 21, 1, 19, 4.) The edict, so far as its exact terms have been preserved to us, applies only to slaves and cattle (res se moventes), not to moveables, and still less to immoveables. We are assured, however, by Ulpian, that it included all these classes of things. (D. 21, 1, 1, pr. ; D. 21, 1, 63.) An example is given in the Digest (D. 21, 1, 49) of pestilential land, the sale of which might be cancelled, and another in the Code (G. 4, 58, 4) of land bearing poisonous herbs or grass. S02 CONTRACTS FOR VALUABLE CONSIDERATION. Again, when a vessel was sold there was an implied warranty of its soundness. (D. 19, 1, 6, 4.) But this decision was not arrived at without a conflict of opinion ; Labeo and Pompomus held that there was an implied warranty, Sabinus that there was not. B. Duties imposed on the Seller by Special Agreement 1. It was entirely in the power of the parties to define the quantity or extent of the thing sold, or to reserve rights for the seller. Thus the seller might reserve a usufruct or habi- tatio. p6m)=RiGHTS hi personam OP EMPLOYER (conductor operarum, locator operis). A. In the absence of Special Agreement. I. The workman was bound to execute the work properly, and in the manner agreed upon, within a reasonable time. (D. 19, 2, 51, 1 ; D. 19, 2, 60, 3 ; D. 19, 2, 58, 1.) From the rules in locatio cond/actio of things, it may be inferred that if the work- man was not in fault (as if disabled) he simply lost his wages ; but if he were in fault, he must pay full compensation (id quod interest). II. The workman must take good care (praestare diligeiitiam, culpam) of the things entrusted to him ; and he is bound to pay their value, if the things are lost or destroyed through his negligence or unskilfulness. But generally he is not answer- able for loss arising from vis major, as robbery ; or from faults in the thing upon which he is working. (D. 19, 2, 62 ; D, 19, 2, 59 ; D. 19, 2, 9, 5 ; D. 19, 2, 13, 6.) A workman has agreed to take a column from one place and set it up in another, or to remove casks of wine. If the column or casks are broken, the workman is not bound to pay their value unless he was in fault ; and he was in fault if he did not exercise the highest degree of care. (D. 19, 2, 25, 7.) A builder undertakes to put up a house with the owner's own material. After it is partly up, it is destroyed by an earthquake ; the loss falls on the owner. (D. 19, 2, 59.) A precious stone is sent to a lapidary to be cut or set. In doing so the lapidary breaks the stone. He is bound to pay damages if the fracture was due to his unskil- fijuess, but not if it was due to a flaw in the stone. (D. 19, 2, 13, 5.) A fuUer receives clothes to be cleaned ; the clothes are eaten by vermin, or stolen, or returned to the wrong person. The fuller must pay their value. (D. 19, 2, 13, 6 ; D. 19, 2, 25, 8.) A coachman, in racing another, overturned his own carriage, and broke the leg of a slave whom he had undertaken to carry. He is liable either in an action on the Aquilian law for negligence, or on the contract. (D. 19, 2, 13, pr.) In some cases, however, the workman accepts a larger responsibility. 1. When work is let by the job {per aversionem), it remains at the risk of the workman until approved. (D. 19, 2, 36.) 2. When work is to be paid for by so many feet or according to measure, the risk is with the workman until the measure is made. (D. 19, 2, 36.) In both cases, however, the workman is free from risk, if it is by the fault of the employer that the thing is not approved or measured. Also if the work requiring to be approved HIRE. 513 perishes by vis major before approval, the loss falls on the employer, because the workman is not responsible for more than his own care and skill. (D. 19, 2, 37.) B. By Special Agreement. 1. The workman, by agreement, might undertake to bear the loss resulting from accident. (D. 19, 2, 13. 5.) A warehouseman put up a notice that he would not accept gold, silver, or pearls at his own risk. Such articles were, however, entrusted to his care, with his know- ledge. This acceptance was held to be a renunciation of the notice. (D. 19, 2, 60, 6.) Warehousemen (Iwrrearii) were bound to take special care and unusual precautions, but if their utmost care failed to frustrate the attempts of robbers, they were exonerated. (C. 4, 65, 1 ; C. 4, 65, 4 ; D. 19, 2, 40.) 2. An agreement that the work must be to the satisfaction of the employer (uti arbitratu domini opus approbetur) was con- strued as if it said according to the satisfaction of a fair and reasonable man (viri boni arbitrium). It applies only to the quality of the work, and not to the time allowed for doing it. (D. 19, 2, 24, pr.) An agreement was sometimes made that if the work was not done by a certain day, it might be taken away and given to another. The employer cannot take it away until the day passes, and the workman is not liable to be sued until the work has actually been given to another. (D. 19, 2, 1 3, 10.) Duty of the Employer (conductor operarum, or locator operis) = Right in personam OP WORKMAN (locator operarum,, or conductor operis). To pay the wages agreed upon, unless through the fault of the workman the services promised have not been given. (D. 19,2, 38, pr.) If the wages were not paid in time, interest was due. (C. 4, 65, 17.) A secretary was engaged for a year to Antonius Aquilia. Before the end of the year Antonius died. If the secretary did not receive any salary during the same year from any other person, he was entitled to his full salary from the heir of the deceased. (D. 19, 2, 19, 9 ; I). 19, 2, 19, 10.) An advocate was obliged to return his fee {JumorariMm), if, through his own fault, he failed to appear in the cause for which he was engaged. (D. 19, 2, 38, 1.) When a ship was lost, the amount paid as freight could be recovered. (D. 19, 2, 15, 6.) Special Divestitive Facts. 1. The expiration of the time for which the contract was to last. (C. 4, 65, 11.) If the hirer of a farm (colonus) is permitted by the owner to 2 K 5 14 CONTRACTS FOR VALUABLE CONSIDERATION, remain in possession after his five years' lease is exhausted, there is an implied re-letting (relocatio) to him of the farm for one year. But in the case of houses, if the original contract was in writing, a re-letting is not presumed, and cannot be made except in writing. In the absence of such writing the tenant holds merely during the pleasure of the owner. (D. 19, 2, 13, 11.) 2. If the interest of the locator in the thing let has expu-ed, then the letting is at an end. (D. 19, 2, 9, 1.) 3. The death of a workman puts an end to a hiring of service or work ; but the death of a letter or hirer of things does not. (C. 4, 65, 10.) If the hirer dies during the time of hiring, his heir comes into his place as hirer, and has the same rights and duties. (J. 3, 24, 6.) 4. The hirer may be evicted from a farm, of which he has been in arrear of rent (D. 19, 2, 54, 1), or if he has misconducted him- self in the hiring, or the house let wants repairs, or the landlord requires the house for his own accommodation. (C. 4, 65, 3.) Remedies. I. To enforce the duties of a landlord {locator ra-um), and employer {locator operis), and workman (locator operarum). 1. Actio eonducti. (D. 19, 2, 15.) 2. Interdict de migrando. — This was given only to a hirer of houses {inquilinus), to enable him to remove his property from the house on payment of his rent. (D. 43, 32, 1, pr.) It includes also property under his care. (D. 43, 32, 2.) It is a per- petual interdict ; and is given to and against heirs. (D. 43, 32, 1, 6.) II. To enforce the duties of the hirer of things {condixcfor rerum), and the {covr d/uctor operis (workman), and the conductor operaruim (employer), 1. Actio locati. 2. Actio furti (D. 19, 2, 42), the action on the AquUian Law, the interdict quod m autclam, and the actio ariorum furtim caesarum. (D. 19, 2, 25, 5; D. 19, 2, 43.) JETTISON {Lbx Reodia be Jactu). The Roman Law adopted, so far as not inconsistent with itself, the maritime law of Rhodes. This fact is brought out very forcibly in a rescript of the Emperor Augustus. I am, says he, indeed, master of the land, but the law rules the sea. The Maritime law of Rhodes {lex JRhodia) applies wherever it is not opposed to special legislation. (D. 14, 2, 9.) If, in order to save a ship, a portion of its cargo is thrown overboard, the owners of the vessel and cargo must share with the owners of the goods thrown overboard the loss they sustain. (D. 14, 2, 1.) HIRE. 515 A captain of a ship, fearing that his ship is overloaded, causes a portion of the cargo to be put into boats. The boats are capsized. In this case there is clearly contribu- tion.. Suppose, however, the boats are saved and the ship is lost, is there contribution ? No, because the goods in the boats have not been saved in consequence of the loss of the goods in the ship. (D. 14, 2, 4, pr.) A mast is out and thrown overboard. The owner has a right of contribution, if it was done to save the vessel, and the vessel was saved. (D. 14, 2, 3 ; D. 14, 2, 5.) A ship suffered severely in a storm, and was driven into a port, where the captain had the damage repaired. Continuing the voyage, the ship reached its destination in safety. In this case there is no contribution for the expenses of repairs, because that was a part of the ordinary expenditure, rather than • a loss incurred for the sake of preserving the cargo. (D. 14, 2, 6. ) Money paid for the redemption of a ship from pirates gave rise to a claim for contribution on the cargo, but not if the goods were stolen by robbers. (D. 14, 2,2,3.) There was no contribution for slaves drowned in a shipwreck, any more than if they had died on board or thrown themselves into the sea. (D. 14, 2, 2, 5.) Contribution is required from those whose property has been saved by the jettison, upon the equitable ground that the loss was incurred to save their goods. (D. 14, 2, 5.) No contribution could be required on account of free persons saved, because their lives constituted a value that could not be expressed in money. But they must contribute on account of their garments and jewellery saved from shipwreck ; not, however, for food and the like consumable articles. Also the owner of the vessel must contribute because his vessel is saved. (D. 14, 2, 2, 2.) A more difficult point is raised by Callistratue. May contri- bution be demanded in respect of goods which, although saved, have been damaged by the water? The answer was that such goods should contribute according to their depreciated value only. Suppose the goods were deteriorated to the extent of 10 aurei, and the amount due on contribution was less, say 2 awei; is the owner of the damaged goods not only to suffer the loss of 10 oAirei, but to pay 2 awrei for contribution ? or may he not claim contribution for the damage done to his own goods ? Callistratus, endorsing the opinion of Papirius Fronto, said that contribution should be made not merely for jettison, but, as in the case mentioned, for damage done by sea water. (D. 14, 2, 4,2.) Valuation. — In measuring the value of the goods lost and saved for the purpose of contribution, a distinction was drawn. The value of the goods thrown overboard or damaged by sea water, was held to be the price paid for them, not the price that they would probably fetch at the port of destination. The reason was, that although it was fair that the owners of the goods saved should pay for the goods thrown overboard, all that they coiild reasonably be asked to do was to save the owner Irom 5l6 CONTRACTS FOR VALUABLE CONSIDERATION. loss, not to make for him a profit. But the goods saved, as was but fair, were vahied at the price ihej would fetch at the port of destination, because that was the true measure of the value of what was saved from shipwreck. (D. 14, 2, 2, 4.) Remedies.— Although in substance the obligation to contribute for goods thrown overboard was founded on equity, and not on contract, and was therefore a real quasi- contract, yet in form such was not the case. The owners of the goods lost had no direct action against the owners whose goods were saved ; their remedy was against the ship- master upon the contract of letting on hire. (D. 14, 2, 2, 2.) The object of the action was to require the shipmaster to retain the goods that were saved until the amount due for contribution had been paid (D. 14, 2, 2, pr.) ; or if the goods had been delivered, to allow the losers to sue the owners of the goods saved in the ship- master's name. The shipmaster may either retain the goods saved until contribution has been made D. 14, 2, 2, pr.) ; or he may sue the passengers and owners on the contract of hire actio ex hcato), III— PARTNERSHIP (Societas). Definition. Partnership is a contract in which two or more persons com- bine their property, or one contributes property and another labour, with the object of sharing amongst themselves the gains. (C. 4, 37, 1.) The share of profit need not be proportional to the capital contributed by each partner (D. 17, 2, 5, 1) ; but a partnership cannot be constituted in which one partner con- tributes neither property nor labour. (D. 39, 6, 35, 5 ; D. 17, 2, 5, 2.) A partnership could exist in which one of the parties was to share in the profit, but not in the loss ; but a partnership could not exist when one of the partners was to share in the loss only, and not in the profit (Leonina Soeietas). Such a con- tract could not be made except from a charitable motive ; but in partnership it was necessary that there should be a valu- able consideration moving from each of the partners. (D. 17, 2, 29, 2.) A farm adjoining the lands of Lucius Titius and of his neighbour Gaius Seius was for sale. Titius, desiring to have the part adjoining his land added to it, asked Seius to buy the land. Afterwards, Titius, without informing Seius of his purpose, went and bought the farm in his own name. Can Seius compel Titius to share the farm with him ? In other words, are they partners ? Julian said the question was one of fact, not of law. What did Seius and Titius intend ? If the agreement was simply that Seius should buy the farm, and give Titius a part of it, there was no partnership. But if the intention was that the thing bought should belong to them jointly (ut quasi commune negoivwm gereretur), then Titius wiU be bound to give up to Seius th*e portion of the farm set apart for him by the agreement. (D. 17, 2, 52, pr.) Flavius Victor and Bellicus Asianus made an agreement to this effect ; — Land was PARTNERSHIP. 5 I 7 to be bought with the money of Victor, on which Asianus by his labour was to raise buildings ; upon the sale of these Victor was to get back the money with a certain sura in addition, and Asianus was to have the balance. This is a partnership. (D 17, 2, 52, 7.) Titius gives Seius a pearl to sell on condition that Seius should give Titius 10 aurei if he sold the pearl for that sum ; and if he got more, should keep the excess for him- self. If the intention was to form a partnership, Titius contributing the pearl and Seius labour, and 10 aurei was mentioned merely as a mode of determining the division of profits, it would be a partnership ; but if Titius simply intended to trust Seius with his pearl on sale, and allowed the excess above 10 aurei as a reward for his trouble, it would be a valid contract, of the nature of an equitable contract, but not a partnership. The practical diflference would be this : — If it were a partnership, Seius could compel Titius to deliver the pearl, if he had not done so, in order to give him an opportunity of selling it ; or if Titius sold it, or gave it to another to sell, Seius would still be entitled to his profit ; but if it was not a partnership, Seius had no rights against Titius until the pearl had actually been delivered to him. (D. 17, 2, ii.) Kinds of Partnership. — In some respect the rules appli- cable to partnership differed according to the subject-matter of the contract. The partnerships in which we usually join, either extend to the whole of our goods — this the Greeks call by the special name of Koitio'irpai^ia — - or apply to some one business only, as buying and selling slaves, oil, wine, or corn. (J. 3, 25, pr. ; G. 3, 148.) I. Trade or Professional Partnership {Societas universorum quae ex quaestu veniunt). This is the kind of partnership that is understood to be made, if no other form is specially agreed upon. (D. 17, 2, 7.) Sometimes it is called societos quaestus et lucri or societas quaestus et compendii (D. 17, 2, 13 ; D. 29, 2, 45, 2) ; but these additional terms, although they serve to explain the scope of the contract, add nothing to it. Quaestus is whatever is gained by the exercise of skill or labour {qui ex opera cujusque descendit). (D. 17, 2, 8.) A partnership of two bankers or money-lenders (argentarii) is an example of a trade partnership. (D. 17, 2, 52, 5.) Neither partner is bound to contribute anything that does not come under the definition of commercial profit {quaestus). Each keeps to himself separately what he acquires by legacy, gift, or inheritance. (D. 17, 2. 9 ; D. 17, 2, 71, 1 ; D. 29, 2, 45, 2.) In like manner, the partners cannot demand from the partnership the payment of debts, except those incurred in the pursuit of the profit {quaestus), which it is the object of the partnership to share. (D. 17, 2, 12 ; D. 17, 2, 82.) Other ex- penditure might, however, be imposed on the partnership by special agreement. 5l8 CONTRACTS FOR VALUABLE CONSIDERATION. Julius and Attius are partners. Julius has a daughter, Flavia, and it has been agreed that the dowries of the partners' daughters shall be paid out of the partnership property. Julius, on the marriage of Flavia, promised a dowry, but died before it was paid, leaving Flavia his heir. Flavia, being her father's heir, was now bound to pay to the husband the amount of the dowry. A divorce, however, took place, and Flavia was released by her husband from the obligation of paying the dowry. Can she, as heir of her father, claim to rank as a creditor against the partnership funds in respect of her dowry ? Papinian observed that the original agreement was valid if both the partners were to have a right to charge the dowries of their daughters against the partnership funds, even if one only of the partners had a daughter. In this case, if the dowry had been paid, Flavia could have recovered it from her husband, and would not have been obliged to give it back and share it with Attius, because she got the money back from her husband in her own right, and not as her father's heir. But as the money was not paid, and not demanded from the partnership funds before the death of Julius, and consequent termination of the partnership, Papinian decided that Flavia had no claim He goes on to add that if the dowry had been paid by Julius, and his daughter had died leaving her husband surviving, Julius would have been bound to sue the husband for the dowry and restore it to the partnership funds. If, on the contrary, the wife bad survived the marriage, Julius could take back the dowry only subject to an obligation to return it to Flavia if she re-married. If the first husband's estate did not suflBce to restore the dowry, a second dowry could not be charged against the partnership funds. (D. 17, 2, 81.) II. Partnership for a Single Transaction {Sodetas negotia- tionis alicujus). The partnership may be limited, as stated by Justinian, to a single sale or other transaction, in which case only what is gained and expended in connection with it enters into the partnership. (D. 17, 2, 5, pr.) Cornelius has three horses, and Licinius one ; and they agree to sell them in a single team (quadriga), and divide the proceeds. Before the sale, the horse of Licinius died. Was Cornelius bound to pay three-fourths of the loss? This depends on the terms of the agreement. If the partnership was only for the sale of the team, then until the sale there was no interchange of ownership, and the loss falls wholly on Licinius. But if the agreement was that they would make a team of four, in which partnership CorneUus had three shares and Licinius one, and the horse of Licinius died, the loss must be divided between the partners, in proportion to their shares. (D. 17, 2, 58, pr.) III. A special case of this partnership was in the collection of taxes (societas vectigalium). It differed from the other instances of partnership in no respect, except one of the divestitive facts (see p. 523.) It is generally ranked as a distinct kind of partnership. IV. Societas universorum bonorum. — This is a partnership in- cluding all the property of the partners, in whatsoever manner acquired, and providing for the payment of all their expenses. (D. 17, 2, 1, 1.) It occurs where two persons agree to put all their money into a common purse, out of which all their expenses are to be paid. PARTNERSHIP. 5 1 9 As soon as the contract is made, the moveable and immove- able property of each of the partners becomes, without any mutual delivery, at once the joint property of all the partners. (D. 17, 2, 2.) Whatever is subsequently acquired by a partner does not become joint property until the partner gives it in the usual way to his copartners. (D. 17,2,74.) What a partner acquires by legacy, inheritance, gift, or in any other manner, belongs to the partnership. (D. 17, 2, 3, 1 ; D. 17, 2, 73.) Thus, even the dowry that one of the partners receives with his wife must be shared with the partners, subject to the obligation of the husband to return it in certain events. (D.17, 2, 65, 16; D. 17,2,66.) The sums due (nomina) to each partner can be sued for only in that partner's name, but each partner is bound to place his right of action at the disposal of his copartners. (D. 17, 2, 3.) The damages obtained by a partner for an injury (injuria) to his son must also be given up to the partnership. (D. 17, 2, 52, 16.) On the other hand, all the lawful expenses of the partners must be paid out of the common fund ; but not damages that they have to pay for wilful misconduct. (D. 17, 2, 73 ; D. 17, 2, 52, 18.) Money lost in gambling cannot be charged to the common fund (D. 17, 2, 59, 1), unless the partners have shared in gains from the same source. (D. 17, 2, 55.) V. Joint Ownership (Societas unius rei vel certarum rerum). (D. 17, 2, 31.) The subject of joint ownership crops up in this place merely from a peculiarity of the forms of action. If the joint-owner- ship arose from some act or event other than the will of the co-owners, the proper remedy was the action communi divi- dundo or familiae erciscundae ; but if the joint ownership arose from the act of the co-owners, the actio pro socio could be brought (D. 17, 2, 34) ; and in no material respect was there any difference between them, unless perhaps that a partner cannot be compelled to pay beyond his means ; whereas there was no such i-estriction in the other actions. Thus each partner could alienate his own share (C. 4, 52, 3), but not more than his own share. (D. 17, 2, 68.) A partner could not exercise any right of ownership (as building on the common land) against the wishes of the others. (D. 17, 2, 39 ; D. 8, 2, 27, 1 ; D. 8, 5, 11, pr.) For when two persons have equal rights, the one 520 CONTRACTS FOR VALUABLE CONSIDERATION. that forbids prevails {in re enim pan potiorem causam esse pro- hibentis constat). Pamphilus, a freedman, and his patron Titius, together buy land, and delivery is made to both. They are joint-owners. Pamphilus, however, paid the whole price. He can compel Titius by the actio pro socio to pay the half. (0. 4, 37, 2. ) Two brothers, joint-heirs, agree to hold all that they get from the inheritance in common. This constitutes a partnership of the inheritance, but does not include what they acquire from other sources. (D. 17, 2, 52, 6.) An agreement between Titius and Julius was made, that whichever acquired an inheritance should share it with the other. Titius afterwards became sole heir of his father. Thereupon a partnership of the inheritance arises. (D. 17, 2, 3, 2.) Titius and Seius are co-owners of Stichus. Titius leaves a legacy to Stiohus of two aurei. Seius being the sole owner of Stichus becomes entitled to the legacy. Can the heir of Titius, as the heir of a partner, compel him to divide the legacy ? No, because Seius receives the legacy, not in his capacity as partner, but, by the operation of a rule of the civil law, in consequence of his being owner. But he is obliged to give the heir half of the value of Stichus. (D. 17, 2, 63, 9.) Eights and Duties. The rights and duties of partners may be considered under two heads — (1) the duties partners owe to each other ; and (2) the duties they owe to outsiders in consequence of the acts or forbearances of one of themselves. I. Duties of Partners inter se. 1. Each must contribute to the common fund what has been agreed npon, and also whatever each gets in respect of the partnership. Hence, if one partner recovers more from a debtor than the others, he must share his good luck with his co- partners. (D. 17, 2, 63, 5.) 2. Each partner is entitled to be reimbursed all expenses properly incurred (D. 17, 2, 52,12), and to be indemnified in respect of all the duties to which he subjects himself on behalf of the partnership. (D. 17, 2, 27 ; D. 17, 2, 28 ; D. 17, 2, 38.) If one of the partners becomes insolvent, and is unable to pay his share, the other partners must, in proportion to their shares, make good the deficiency. (D. 17, 2, 67, pr.) A partner, travelling for his firm to buy merchandise, is entitled to travelling expenses, and the cost of conveying himself, his baggage and merchandise. (D. 17, 2, 52, 15.) A partner, in resisting the flight of slaves belonging to the partnership, is wounded. Can he recover the cost of medical attendance for his cure ? Labeo held that he could not, and drew a subtle distinction between expense incurred on behalf of the partner- ship and expense incurred incidentally in consequence of being a partner. It is like the case where a legacy is left to a man in consequence of being a partner. He is not obliged to contribute that. (D. 17, 2, 60, 1.) This subtlety was rejected by Julian, PARTNERSHIP. 52 1 whose opinion had the further sanction of TJlpian, and is endorsed in the Digest. (D. 17, 2, 61.) ■ Titius and Seius agreed to deal together in mantles, and Titiua set out on a journey to buy stock. On his way he was met by robbers, who stole the money he took to pay for the merchandise, wounded his slaves, and stripped him of his own private property. Julian held that not merely must the loss of the partnership money be borne equally by the two, but that Seius must pay half the loss of the private property of Titius, and of the other damage, including medical expenses. (D, 17, 2, 62, 4.) 3. Whether one partner is liable to another simply as such (by the actio pro socio) in case of wilful wrong, as is a man that has suffered anything to be deposited with him, or whether he is not also liable for a fault on the score of sloth, that is, and negligence is questioned. The opinion has, however, prevailed that he is liable even for a fault. But everything that falls short of the utmost possible diligence is not therefore a fault. For it is enough that a partner display such diligence in regard to the common affairs, as he usually does in regard to his own. And the man that has taken to himself a partner lacking in diligence has only himself to complain of; he must ascribe his loss, in fact, to his own want of forethought. (J. 3, 25, g.) A partnership is made between Sempronius and Titius, Titius undertaking to pasture the cattle of Sempronius, and share the profits with him. The cattle are taken over by Titius at a valuation. Some of the cattle are carried off by robbers, and the rest stolen. In this case Titius must pay the value of the stolen cattle, but the loss of the cattle taken by robbers falls on Sempronius. The reason is, that with due care Titius could have prevented the theft, but he could not withstand robbery. (D. 17, 2, 62, 3). A partner employed his slave to work for the partnership ; the slave by his negligence did some damage. The partner could not set off against this damage any special benefit acquired through that slave. (D. 17, 2, 23, 1 ; D. 17, 2, 25.) And the general rule was that a partner could not set off what he gained by unusual industry against losses incurred by negligence. (D. 17, 2, 26.) II. Rights and Duties of Partners in relation to third parties. In modern law, questions affecting partnership generally arise with regard to the rights and obligations of third parties against the partners. Every partner, engaged in the business of the partnership, is an implied agent in his transactions with other persons within the scope of the partnership. But the contract of partnership in Roman law dealt solely with the rights of partners as between themselves ; and one of the partners had no implied power to bind the others, even in matters strictly within the business of the partnership. One of the partners might, indeed, to a qualified extent, be an agent for the others, but only in the same way as a stranger to the partnership. This peculiarity is to be attributed to the slow and imperfect development of agency in the creation of contracts. See postea, Agency. 52 2 contracts for valuable consideration. Investitive Facts. Partnership was formed by the simple consent of the parties. (D. 17, 2, 4.) It seems at one time to have been a moot point whether a partnership could be made subject to a condition, but this was decided in the af&rmative by Justinian. (C. 4, 37,6; D. 17, 2, 1, pr.) If no express agreement has been come to as regards the shares of profit or loss, equal shares in both cases are contemplated. But if the shares have been expressed, then they must be kept to. (J. 3, 25, i ; G. 3, 150.) It is easily seen that if the share is expressed in one case only, whether of profit or loss, but omitted in the other, then in the other case also that has been passed over the same share must be kept to. (J. 3, 25, 3 ; G. 3, 150.) As in the case of sale and letting, the determination of the shares might be left to A third party (arliter). {T>. 17, 2, 76.) If no decision were given, the contract came to nothing. (D. 17, 2, 75.) If the decision were manifestly unfair, it would be set aside. (J). 17, 2, 79.) But the mere fact of the arbiter giving more to one than another was not evidence of unfairness, because one might contribute a larger share of capital, industry, or credit. (D. 17, 2, 80.) It never was doubtful that, if two persons come to an agreement between themselves that two-thirds both of profit and of loss shall belong to one and one-third to the other, such an agreement holds good. (J. 3, 25, I.) But certainly the following agreement has been much disputed. If Titius and Seius agree between themselves that two-thirds of the profit shall belong to Titius and one-third of the loss, two-thirds of the loss to Seius and one-third of the profit, ought such an agreement to be regarded as valid ? Quintus Mucius thought that such an agreement was contrary to the very nature of a partnership, and therefore ought not to be regarded as valid. Servius Sulpicius was of the contrary opinion, and his view has prevailed. For often there are some men whose services in a partnership are so valuable, that it is just that they should be admitted into it on better terms than the others. In support of this, it may be added, that no one doubts men can join in a partnership on these terms, — that one shall bring in all the capital, the other none, and yet that the profit shall be shared in common ; for often a man's services are an equivalent for capital. So fully has the opinion opposed to that of Quintus Mucius been established, that it is even accepted that partners may agree that one shall share the profit without being liable for loss, as Servius consistently thought. But such an agreement ought to be understood to mean, that if one part of the business brings in a profit, and another a loss, then a balance must be struck, and only the excess of profit over loss be regarded as profit. (J. 3, 25, 2 ; G. 3, 149.) Tbansvestitive Facts. — No partner could give away his share, so as to put another in his place. (D. 17, 2, 19.) The rule is thus expressed: the partner of my partner is not my partner (Socii rnei socius mens socius non est). (D. 50, 17, 47, 1.) Divestitive Facts. I. A partnership lasts as long as the partners continue their consent ; but if one renounces the partnership, it is dissolved. Clearly, however, it a PARTNERSHIP, 523 partner craftily renounces the partnership in order to be alone in having some profit that is falling in — if, for instance, a member of a partnership that extends to all the goods of the partners is left heir to some one, and thereupon renounces the partnership in order to be alone in profiting by the inheritance — he is compelled to share the profits. But any other profit he makes, without hunting after it, belongs to himself alone ; while all that is acquired in any way after the partnership is renounced, is given up to the renounced partner, and to him alone. (J. 3, 25, 4; G. 3, 151.) The power of withdrawal exists only when the duration of the partnership haa not been fixed. If a time has been agreed upon, a partner that withdraws divests himself of all rights in respect of the partnership, but remains liable for all obligations. (Socium a se non se a socio libercU.) (D. 17, 2, 65, 6.) Even if no time is fixed, a partner cannot withdraw when it is inconvenient for the partnership ; as, for example, to force a sale of slaves at a disadvantage. (D. 17, 2, 65, 5.) An agreement that » partner should not be at liberty to withdraw was void. (D. 17, 2, 11) 2. By Action. If one of the partners goes into court to secure his rights, it is understood that the partnership is thereby- dissolved. (D. 17, 2, 65.) 3. A partnership is dissolved, too, by the death of a partner ; because, in entering into a contract of partnership, a man chose for himself a deter- minate person. Even if the partnership was formed by more than two persons consenting to join, the death of one dissolves it although several sur- vive, unless it was otherwise agreed when they joined in partnership. ("J. 3, 25, 5; G. 3, 152.) The Societas vectigaliinn is an exception to this rule. In this partnership the heir of a partner may by, but not without, a special agreement succeed as a partner. {D. 17, 2, 59 ; D. 17, 2, 35.) If one of the partners acts on the assumption that a partner is alive, who in point of fact is dead, the partnership is regarded as existing. This beneficial rule existed also in mandate. (D. 17, 2, 65, 10.) 4. Therefore it is agreed that capitis deminutio, too, dissolves a partner- ship ; for, on the principle of the jus civile, this is regarded as almost equivalent to death. But if the members agree to go on still as partners, a new partnership is held to begin. (G. 3, 153.) This is true only of the greater and middle change of status, not of the smallest (ttlinima capitis deminutio). Hence the arrogation or emancipation of a partner did not dissolve the partnership. (D. 17, 2, 68, 2 ; D. 17, 2, 65, 11.) 5. Again, if one of the partners has his goods sold oif, either by the State or by private creditors, the partnership is dissolved. But in this case a new contract of partnership may be entered into ; for such a contract needs only bare consent, and comes under the Jus Gentiumj and all men, by natural reason, can give consent. (G. 3, 1 54.) Confiscation of goods, too, plainly breaks up a partnership, if, that is, the whole goods of the partner are confiscated ; for since another comes into his place, he is regarded as dead. (J. 3, 25, 7.) Again, if one of the partners, weighed down by heavy debts, yields up his 524 HISTORY OF CONTRACT. goods, and has all his substance sold for debts, public or private, the partner- ship is dissolved. But in this case, if the members agree to go on still as partners, a new partnership is begun. (J. 3, 25, 8.) 6. Again, if a contract of partnership is made for some special business, when that is ended the partnership is at an end. (J. 3, 25, 6.) 7. The loss of the partnership property also terminates the partnership. (D. 17, 2, 63, 10.) 8. By the lapse of the time for which the partnership was constituted. (D. 17, 2, 65, 6.) Remedies. I. Actio pro Socio. 1. This action is brought to enforce the rights in personam of the partners ; if a division of the property is desired, recourse must be had to the actio communi divi- dundo. It is, therefore, confined to the accounts between partners. (D. 17, 2, 43.) 2. If any obligations are outstanding, and cannot be settled on the dissolution of the partnership, security must be given to the burdened partner. (D. 17, 2, 27 j D. 17, 2, 38.) 3. Partners have a special benefit as between themselves ; they cannot be made to pay more than thej' can afford, or have deprived themselves of the means of paying (m id quod facere possunt quodve dole tnalo fecerint quomAnus possent condemnari oportere). (D. 17. 2, 63 pr.) A partner, however, who denies the existence of a partnership, does not enjoy this benefit. (D. 42, 1, 22, 1 ; D. 17, 2, 67, 3.) If a man brings an action against his parent or patronus, or if a partner brings an action against a partner in a suit arising out of the partnership, the plaintiff cannot gain more than his opponent can pay. And it is the same when a man is sued for what he has given as a present. (J. 4, 6, 38.) 2. The actu) communi dividundo co-exists with the Actio pro socio. 3. The actio legis Aquiliae, actio furti, and others, may also, according to circum- stances, be invoked by an injured partner. (D. 17, 2, 47, 1 ; D. 17, 2, 49 ; D. 17, 2, 50; D. 17, 2, 45 ; D. 17, 2, 46 ; D. 17, 2, 51 pr.; D. 17, 2, 51, 1.) 'FovKYK.— HISTORY AND CLASSIFICATION OF ROMAN CONTRACTS. Having enumerated and described the Roman Contracts as they are given in the Institutes of Gaius and Justinian, we may pause before proceeding to complete an outhne of the subject from the corpus juris, to examine the principles upon which the Roman contracts are based, and the order of their development. These two topics — the history and juridical principles of con- tract — are, at least for the student of Roman law, inseparably bound up together. The history of contract affords the best justification of the arrangement that has been set forth, and a careful analysis of the principles upon which the Roman Law extended legal protection to contracts sometimes furnishes a clue to their history. SPONSIONES. 525 1.— Formal Contracts. The formal contracts of the Roman law, as already described, are three in number : they are all said to descend from the jus civile ; and they rest upon a simple principle. The obligatory force of these contracts depends on the exact observance of their respective forms. The juridical principle of the formal contracts is obvious, and requires no commentary, but the question of their origin is very obscure. According to the opinion of some high authorities, the three formal contracts — Nexum, Stipulatio, Expensilatio — rare not equally ancient. The Nexum is said to be the parent-contract from which not only the Stipulatio and Expensilatio, but all the other contracts of the Roman law are lineally descended. The writer has been driven to the conclusion that this hypothesis, although very attractive, is not supported by the evidence ; and that we must still look upon the stipulation as primordial, as it is one of the most ancient contracts of the Roman law. (See Note at the end of this section.) 1. Anciently in Rome betrothals were made by stipulation (hence the terms sponsus, sponsa, from spondee^. (D. 23, 1, 2.) In the classical period, the stipulation was not employed, and no action lay for breach of promise. We learn from Servius Sulpicius, a jurist who died B.C. 42, that betrothal was an institution of the Latin people, who kept up the action for breach of promise {actio ex sponsu) until they were incorporated with the Romans. There can be no question of the antiquity of the custom. It was, in fact, one that could not fail to arise as soon as men gave up the practice of stealing wives, and sought them by purchase. A preliminary bargain was necessary to settle the price, and the conclusion of that bargain prior to the ceremony of marriage was betrothal. One of the forms of Roman marriage, in olden times, was a mancipation of the wife to the husband (coemptio in manum). Now it would have been impossible that the previous contract should have been made by a mancipation, even fictitiously, because if the woman had really been mancipated, even for the sake of form, to an intend- ing husband, she would at once have been subjected to his manus beyond recall. (G. 1,115 b.) Hence, in betrothal, an extremely ancient institution, we find the opposition between contract and conveyance, between promise and property. This distinc- 526 HISTORY OF CONTRACT. tion, if Sulpicius is right, corresponded with that between stipulatio and mancipatio. 2. It is impossible to avoid being struck by the prominence given to the stipulation in the Eoman law of procedure. Not only was it largely employed by the Prsetor, but in its oldest form as a sponsio it figured in the ancient condictio (the legis actio of that name. See Book IV., Proceedings in jure. Legis Actiones). The ancient form of suretyship, called vadimonium, appears also to have been made by sponsio. It is easy to understand why the stipulation should have been so extensively employed in civil procedure. The obliga- tions enforced in connection with civil proceedings took the form of requiring a person to do or not to do something. Now we can hardly suppose such contracts ever to have been made by nexum. The nexmn was germane to contracts relating to the transfer of property, but it seems quite irrelevant to contracts concerned with personal acts and forbearances. But such con- tracts fell naturally under the domain of the stipulation. There is nothing in Roman law to throw light on one of the characteristics of the stipulation ; namely, the form of question and answer. It is a unique form. But the other essential feature of the stipulation anciently — the word spondeo — has some interesting afBnities. The cognate term in Greek — evovH — is a sacrifice by libation of wine, oil, honey, or water. It is also the name for a simple treaty of peace as distinguished from a treaty of alliance. This ought to be taken along with a statement of Gaius (G. 3, 94), who says that in one case only could spondeo be used by an alien ; namely, in making peace with the Roman people. It may perhaps be inferred that the word spondeo carried a sanctity with it beyond the confines of Rome. It would appear that sponsiones were current among the Greek and Latin tribes as a most binding and sacred kind of pi-omise. The third formal contract is Expensilatio. Ortolan contends at great length, and with much, vigour, that this contract is derived from the Nexum. He summons to his aid the well- known terms in which entries were made in the domestic ledger, e.xpensa lata — terms that seem to imply originally a weighing out of the money. The Expensilatio was rarely, if ever, used as a means of creating rights in personam ; it was used as a mode ot novation, insomuch that if the text ot Gaius were all the information EQUITABLE CONTRACTS. 527 we had, we should be bound to omit Empensilatio from the list of contracts, and introduce it under the head of Transvestitive Facts. The juridical principle of the contract is obvious. According to all testimony, the accounts of a Roman household were kept with extreme exactness, and all sums due to or by the head of the house, when ascertained, were duly entered. In case of dispute, these books formed the best evidence ; if the books of the creditor and debtor agreed, the dispute was at an end ; if the books of the creditor only had the entry, the qtiestion was whether the entry was made with the consent of the debtor. If it was, there could be little hesitation as to the judgment that ought to be given. From the extreme care and scrupulous honesty with which the family accounts were kept, they naturally attained a high degree of value as evidence ; and there seems no difficulty in believing that at length the debtor was not allowed to go behind the entry on the ledger, if it were made with his consent, to dispute his obligation. The literal contract is in short, merely an example of the doctrine of estoppel. A man that had consented to his name being entered as debtor for a given sum in the books of another, was not permitted to deny that the money was really due. From the writings of Cicero we learn that one that entered what was not due to him, and one that did not enter as due what he really owed, were alike guilty of nefarious misconduct. There is no reason for limiting the effect of the literal con- tract to debts arising from nexum ; it was equally applicable to debts arising from stipulation, or in any other way. Nor is any real light thrown upon the expensilatio by connecting it with the nexum. The words expensa lata, for aught that appears to the contrary, may have been employed in as figurative a sense when the doctrine of estoppel was first applied to written entries in the household ledger, as the word " expenditure '' is at the present day. II. — Equitable Contracts. 1. Depositum, Pignus, Mutuum, Commodaium. Of the contracts re enumerated by Gains and Justinian, two, but two only, can with absolute confidence be regarded as derived from the nexum. These two are pignus and depositum. It is a curious circumstance, if it be merely accidental, that both Gains (G. 2, 60) and Boetius mention two only, and these the same examples ; namely, pignus and deposi- 528 HISTORY OF CONTRACT. turn. There appears to be no testimony in favour of a similar derivation of mutuum, a contract that presents strong affinities with the two undoubted derivatives of the nexum; and yet there seems no reason why such testimony should be wanting, if, indeed, the mutuum had ever been made per aes et lihram. When we seek, in the absence of positive testimony to deter- mine the precise character and limits of the nexum, especially with a view to the claim advanced for it as the parent form of all contracts, it is of the utmost importance to possess two unquestionable instances of derivative contracts. By examining the characteristics of the progeny, we may be able to determine something of the nature of the parent, and to specify what we should expect to find in other members of the family. The relation of the pignus to the nexum has been already described (p. 433). A few words may now be added in respect of the depositum. Boethius (Cic. Top. 4, 10, 41), explaining the term fiducia, says it occurs when a thing is given by mancipatio or cessio in jure to another, on condition that upon the happening of certain events it should be conveyed back to the owner. This happens when a man, afraid of civil broils, mancipates his land to a more powerful friend, who promises to restore the land when the danger has passed away. From this it would appear that the contract of fiducia was of the nature of a con- dition or engagement annexed to the conveyance of property.^ The transaction per aes et lihram always admitted a con- siderable degree of elasticity in the language employed in what we may call the " operative part " of the proceeding. The presence of the balance-holder and the bronze was indeed constant, but the nuncupatio, the words that determined the legal character of the ceremony, varied. Gains gives several examples ; as in the conveyance of a slave (G. 1, 119), and in the making of a will. (G. 2, 104.) But in these cases, although the language varies, it is within narrow limits. The words define the legal effect of the ceremony, and nothing more. But the cases of deposit and mortgage carry us further. The words employed do not simply qualify the act 'An instance probably of the same kind is narrated by Varro (de r. r. 7, 105) as the opinion of Mamilius. " A freeman that gives his services, as in slavery, on account of the money that he owes is, until he discharges the debt, called nexus." {Liber qui sum operas in servitude (m) pro pecunia quam debehat (dat) dum solveret, nexus vacatur, ut ab acre obaeratus.) This is supposed to refer to an actual mancipatio of the debtor himself, on condition that when the debt is paid his creditor shall release him. EQUITABLE CONTRACTS. 529 of conveyance ; they impose on the person receiving the pro- perty an obligation to return the property on a future day named, or on the happening of some event. Thefse cases, then, furnish an example of the perversion, so to speak, of the form of conveyance to the purpose of contract. But the perversion is within the very narrowest limits. The words creating a conditional obligation to return the property are closely con- nected with the conveyance ; and without any great stretch may be held to be covered by the ceremony, and so to be clothed with a legal sanction. The slightness of this perver- sion is made apparent when we consider that it would have required a distinct step in advance to have got so far as the mutuum. In that case the obligation was to return, not the things actually lent, but the same quantity and quality. This fact should be kept in mind, because while we know that deposit was at first made per aes et librarn, we have no evidence that mutuum ever was. The contractus jiducice, or engagement annexed to a convey- ance per aes et lihram, presents some features deserving of remark. It was not introduced by the Praetor, for the fiduciary deposit is at least as old as the XII Tables ; nevertheless it was a contract in which good faith was required. Again, a person that broke an engagement of this sort was punished with the civil and political disabilities of infamy. This appears strange, since it was not until nearly the end of the Republic that a stipulatio could be upset by the plea of fraud. (See Sub- Div. II., Fraud in Contract.) But it seems to have been con- sidered that the greater the confidence reposed, the more shameful was a breach of faith, and thus infamy might attach to a simple breach of contract. The reason why infamy was fixed to a delinquent depositee or mortgagee is manifest. The owner divested himself of his ownership ; he gave up his right in rem against all the world, and accepted instead a right in personam against the person to whom he conveyed his property. The infiiction of infamy was an attempt to strengthen what Bentham calls the social sanction in consequence of the weakness of the legal sanctioa. Under the head of Mortgage an account lias been given of the manner in which the Pr^tor dexterously superseded the clumsy and incon- venient mortgage of the jus civile. His action in the case of deposit was similar. He gave effect to a deposit made without tiie ceremony per aes et libram, deprived the depositee of his 2 L 53° HISTORY OF CONTRACT. right in rem, and thus disabled him from ahenatiiig the pro- perty. HaviDg thus given complete security to the owner, who now, in spite of the deposit, continued to have all the rights and remedies of an owuct, the Praetor was at liberty to remove the penal action to which a depositee was exposed. Except, therefore, when the deposit was made under stress of shipwreck, fire, or the like, a depositee was not liable to pay double the value of the thing in the event of his being con- demned for breach of contract. There appears to be no evidence to connect the contract of mutuum with vexum, but it would seem to have been ranked in the Praetor's Edicts along with commodaium and pignus. (D. 12, 1, 1, 1 ; D. 12, 1, 2, 3 ; Ulp. Frag. Inst. 3, 1.) Commodatum, in the form we know it, was of Praetorian origin. (D. 13, 6, 1.) These two contracts naturally go together. Mutuum is the loan of things that are consumed in the use ; commodatum is the loan of things that are not consumed in the use. In mutuum the borrower necessarily becomes owner of the things lent, and is bound to re- turn simply the same quantity and qualitj' : in commodatum the borrower acquires no right in rem to the thing, and must return the identical article he has borrowed. In regard to both contracts the evidence, although not conclusive, tends to show that the Praetorian contract was a substitute, not for the newi^m, but for the stipulatio. Thus, although in the absence of a stipulatio the Praetor compelled a borrower to return the money, wine, corn, or whatever else he borrowed, he did not require him to pay interest. For that there must be a distinct and special stipulation. The utmost extent to which the Praetor relaxed this rule, was to permit — and that only in a few cases — interest to be attached to the loan by mere oral or written agreement {pactum) without the interrogative form (stipulatio). If we suppose that, prior to the intervention of the Praetor, a borrower could not be forced to return what he borrowed unless he had bound himself by stipulatio, we may take it that loans were seldom made without stipulatio, and that the promise of the stipulatio included both principal and interest. If, however, a lender neglected that precaution, upon what ground could he ask the assistance of the Praetor ? The Pr^tor could not be asked to give effect to an informal promise as such, but he might go so far as to require the borrower to return the principal, for the borrower was taking advantage of the forms of the jus civile to cheat the lender of his money. Equity required so much, but it required EQUITABLE CONTRACTS. 53 I nothing more. Interest was always regarded in the Roman law as arising exclusively from contract ; it did not bear the same relation to money lent that the rent of a farm did to the ownership of the farm. (D. 50, 16, 121.) Since, therefore, equity did not demand that the borrower should pay interest, and there was no stipulatio, the Praetor limited his interference to the return of the principal borrowed. Commodaium was introduced by the Praetor, whether as a new form of contract invented by him or not, it would be rash to say. It occupies a peculiar position ; on the one side of it is usus ov ususfructus, gratuitous like commodatum, but belonging to the class of rights in rem ; on the other side is looatio-conductio, belonging, like commodatum, to the class of rights in personam, but not gratuitous. There is again a contrast with mutuum. Interest is a valuable consideration for a loan, and the contract of mutuum might be either with or without interest. Commo- datum exists only when there is no valuable consideration, and when there is no right in rem. Of the four contracts re mentioned in the Institutes, two certainly, pignus and deposiium, and two probably, mutuum and commodatum, were derived from formal contracts. The author of the change was the Praetor. The object of the change was to prevent the forms of the civil law being used as means to defraud a person of his property. Suppose a deposit is made without the ceremony per aes et libram, and the depositee refuses to return the property, what remedy had the owner? He could not sue on the contractus jiduciae, for there was no such contract ; could he sue as owner by the vindicatio f The pro- bability is that he could not, because he had of his own volition parted with his property, trusting to the honour of his friend. At all events there was an injustice in driving the owner to the vindicatio, because as the depositee was in possession, the owner was required to prove his title. However that may be, we may rest assured that the Praetor would not have introduced the actio depositi if the owner had had any other suitable remedy. The principle he adopted was that it would be unjust to allow an owner to be deprived of his property merely because of his neglect to use a legal ceremony. The main object of the Praetor's interference, therefore, was restitution. He interfered not to give effect to an informal promise, but rather to redress a wrong ; not so much to compel the depositee to fulfil his promise, as to make him give back to 532 HISTORY OF CONTRACT. the owner the property of which he was unjustly deprived. It ie this circumstance that gives to the so-called real contracts their peculiarities. The remedy of the Prsetor is given to the owner to recover his property ; unless, therefore, he has parted with his property, he has no occasion for the remedy. Hence there can be no contract re except by delivery of property by an OAvner. Suppose Titius promises to lend Gaius 10 aicrei, but fails to keep his promise ; Gaius cannot compel him to lend the money, if no stipulation has been made. If, however, Titius does advance the money, then the Praetor gives him an action for the recovery of it. The Prsetor went further in the case of the other three contracts re, and gave an action to the depositee or borrower {commodatarius) or mortgagee. This action was called contraria, and the word is significant. Suppose Maevius agreed to lend Sempronius his slave for a week, and sent the slave according to his promise. It would be unfair to Sempronius to demand back the slave before the week had expired, or to refuse to pay any extraordinary expense that the borrower was put to by the slave. The Prastor, then, acting on the principle that he that seeks equity must do equity, refused an action to the owner until the time had expired, and he gave compensation to the borrower. 2. Innominate contracts re. It was Jong before the principle of the contracts re, although obviously capable of a much wider application, was distinctly perceived and consistently applied. At first the Prsetor at- tempted merely to supply a remedy for certain cases of flagrant injustice with the smallest possible interference with the rules of the jus civile. But new cases occurred involving substantially the same grievance, and calling for an appli- cation of the same remedy. A single instance may be taken as a type of many. Gaius lends his ox to Titius for a fort- night to make up a ploughing team, and Titius agrees at the end of the fortnight to return the ox, together with one of his own, to be lent to Gaius for a similar period. After Titius has had the use of Gaius' ox, he refuses to perform his promise, and Gaius is put to the expense of hiring another ox to do his ploughing. The injustice that Gaius suffers is manifest, and is of precisely the same character as that of a lender when the borrower refuses to repay the loan. But the contract does not fall within the definition of mutuum ; nor is it commodatuni MANDATUM. 533 (because it is not gratuitous) ; nor is it locatio conductio, because the consideration is not in money. Had Grains then no remedy? In seeking for a suitable remedy for cases like that stated, the jurisconsults naturally turned first to the action for fraud (actio de dolo). The conduct of Titius, if he had the means of performing his contract and refused, was certainly unjust, but it could hardly be called a fraud. If, indeed, he had intended from the first to cheat Gains, and used the promise only as a means to get the use of his ox, his conduct was fraudulent. But this could rarely be proved even when it was the fact, and the actio de dolo could not often be relied upon. The true remedy was to apply the equitable principle of the contracts re, and at length, after long controversy (for even Paul (D. 19, 5, 5, 3) and Diocletian (C. 2, 21, 4) except one class of cases), this course was adopted. A remedy called actio in factum praescriptis verbis was given whenever, in a bilaterial engagement, one of the parties had executed his promise, and the other refused to execute his promise. (D. 19, 5, 2-3.) 3. Mandatum. Mandate is placed in the Institutes in the class of contracts arising from consent {ex consensu). The circumstance that mandate alone of the consensual contracts presents an actio contraria, excites a suspicion that it is not in its right place, and that it should rather go along with the contracts re. If mandate were a true consensual contract, then it ought, from the moment that consent is given, absolutely to bind both parties. But, as already pointed out, mandate has not these characters. In the first place, the rights of the manda- tarius do not arise from the consent of the mandator simply ; they flow from his performance of the mandate. His rights rest, therefore, upon equity rather than upon consent. In the second place, the rights of the mandator do not arise from the simple promise of the mandatarius. That is the case when the agent is paid. But where the agent is not paid, the prin- cipal has an action against him only when he has suffered injury by trusting to his promise, and thereby omitted to take the steps he would otherwise have taken to protect his interests. It is true that the claim of the mandator does not rest upon acts (as is the case in all other contracts re), but upon a forbearance. But in equity there is little difi'erence 534 HISTORY OF CONTRACT. between saying, " I have done something at your request, in order that you may do something to me," and " I have ab- stained from doing something at your request, because you have undertaken to do it for me." It is easier to assign mandate to its true place among con- tracts than to determine its origin. Is mandate an ancient, independent contract, or is it derived, and if so, from what other form, nexum or stipulatio ? A contract in respect of the use of a thing or the services of a person might be made with or without valuable consideration ; and if with valuable con- sideration, either in money or not. A contract for the use of a thing without consideration was commodatum : a contract for a personal service without consideration was mandatum: a con- tract for the use of a thing, or a personal service with a consideration in money, was locatio eonductio : a contract for the use of a thing, or a personal service with a consideration, but not in money, was an innominate contract re, and w^as enforced by the actio in factum praescriptis verbis. Commodatum and mandatum thus naturally go together. They stand in the same relation to locatio-conductio ; and probably they originated in the same way. The actions of commodatum or mandatum could never be employed unless when there was an absence both of a stipulation and of a pecuniary consideration. Occasionally this view is taken by the jurists. Thus in stating a case for mandate where there was no valuable consideration, Scaevola is at pains to add, " and there was no stipulation." (D. 17, 1, 62, pr.) Thus the equitable contract of mandatum, like the equitable contract of commodatum, may have been introduced where the parties had neglected to employ the stipulatio ; but there is not sufficient evidence upon which to base any certain opinion. III. — Contracts for Valuable Consideration. In all the so-called consensual contracts (except mandatum), a pecuniar}-, or at least a valuable, consideration was essential. 1. Sale. — The contract of sale, as it was interpreted during the Empire, contained three main points : — (1) The duty of the seller was simply to dehver, not to make a good title ; (2) he was bound to warrant against eviction ; and (3) against faults in the thing sold. But the evidence is conclusive that these obligations were at first made by stipulation, and that they became part of the Jaw of sale only through the edict of the SALE AND HIRE. 535 Cunale Aedile, The effect of the Aedilitian Edicts was partly to impose ou sellers a duty to disclose faults, and partly to enable warranties to be given without stipulation. A mere verba] warranty was to have the effect of a stipulation. The executory contract of sale was thus built up partly by admitting pacts for stipulations — i.e., informal for formal verbal promises ; and partly by imposing as a legal duty that which previously could arise only from express stipulation. The account given by Sir Henry Maine traces the executory contract of sale up to the nexum. If there were no positive evidence of the manner in which that contract was developed in the Roman law, there would be some plausibility in asci'ibing the origin of the contract of sale to a process by which property was actually conveyed for a price. But there can be no question that the duties of the seller, in the mature law, arose from dropping stipulations, not from lopping off the ceremonial part of the mancipatio. It was stipulatio, not the nexum, that was the parent-form of the executory contract of sale. There is an analogy between the executory contract of sale and be- trothal — the executory contract of marriage. Betrothal was in the most ancient times made by stipulatio, while the marriage itself was effected per aes et libram. 2. Hire (Locatio-conductio). — There is nothing to show any connection between hire and stipulation such as subsisted between sale and stipulation. 3. Partnership (Societas). — There appears to be no evidence to connect partnership with either nexum or stipulatio, as indeed from the nature of the contract could scarcely be expected. In these three cases the principle of valuable consideration is found. In a subsequent place, some other instances will be cited of contracts based on valuable consideration, but these are few in number. The Roman law never attained the point of generalising the principle of valuable consideration. That was the reason, probably, even more than the mistake with regard to mandatum, that induced the jurists to describe certain contracts as founded on consent, whereas when they came to describe the contracts individually, they stated that the very essence of them was a pecuniary consideration. The three classes into which contracts have been divided may now be defined from a new standpoint, as unilateral or bilateral, executed or executory. A contract is unilateral when it consists wholly of promises 53^ HISTORY OF CONTRACT. by, one person. It is bilateral when it consists of promises made by two persons, which promises are the consideration for each other. Again, there is a distinction between executed and executory contracts. If a unilateral contract is executed, there is an end of it. But a bilateral contract may be executed as respects the promise of one party, and be executory as regards the promise of the other. Such a contract may be said to be part executed. If neither party has performed his promise, the contract is executory. 1. The formal contracts are unilateral and executory. This is obviously true of the stipulatio ; and it was true of the eoepensi- latio. The nexum also was unilateral, for it imposed an obliga- tion solely on the person receiving property by conveyance, 2. The equitable contracts are bilateral agreements, part executed. Before either party has executed his promise, there is an executory agreement, but one that cannot be enfoi'ced by law. As soon as one has performed his agreement, the other is subjected to a legal obligation in respect of his promises. The equitable contracts are thus not executory. 3. The bilateral executory contracts of the Roman law are based on valuable consideration. Deeivative Theoeies op the Stipulation. The following passage from " Ancient Law " gives a concise account of the view of those that maintain not merely that the stipulation was produced from the nexum, but that the nexum itself, as a contract, was an extension or perversion of the ancient conveyance -per aes et libram : — " There is some, but not very violent, conjecture in the following delineation of the process. Let us conceive a sale for ready money as the normal type of the nexum. The seller brought the property of which he intended to dispose— a slave, for example — the purchaser attended with the rough ingots of copper which served for money, and an indispensable assistant, the libripens, presented himself with a pair of scales. The slave, with certain fixed formalities, was handed over to the vendee — the copper was weighed by the libripens and passed to the vendor. So long as the business lasted it was a nexum, and the parties were nexi ; but the moment it was completed the nexum ended, and the vendor and purchaser ceased to bear the name derived from their momentary relation. But now, let us move a step onward in commercial history. Suppose the slave transferred, but the money not paid. In that case the nexum is finished so far as the seller is concerned, and when he has once handed over his property, he is no longer nexus ; but, in regard to the purchaser, the nexum continues. The transaction, as to his part of it, is incomplete, and he is still considered to be ■nexus. It follows, therefore, that the same term described the conveyance by which the right of property was transmitted, and the personal obligation of the debtor for the unpaid purchase-money. We may still go forward, and picture to ourselves a pro- ceeding wholly formal, in which nothing is handed over and nothing paid ; we are brought at once to a transaction indicative of much higher commercial activity, an exemtmy Contract of Sale." — Ancient Law, p. 320. According to this statement, the nexum would be the earliest contract known to the Roman law ; the stipulation would probably be its first offshoot, while the expen- silatio would be later. Does this represent the true genesis of the Roman contracts ! The question is important, because the answer must affect all the other contracts of DERIVATIVE THEORIES. 537 the Roman law. The conclusion to which the present writer has been driven is that there is no sufficient evidence to connect the stipulation by way of descent with the nexum, but that such evidence as exists points rather to the stipulation as representing an element in law equally primordial with the notion of property itself. Considering the high authority in favour of the derivation of the stipulation, it is necessary to consider the arguments at some length. The derivative theory has appeared in two principal forms, the first published by Savigny, the second by M. Ortolan, and in this country by Sir Henry Maine. Savigny considers the stipiilatio to be derived from the nexum ; but the nexum itself he regards as by no means the primary form of contract. The oldest contract in his view is the mutuum; the nexum was merely a fiction employed to bring other contracts within the scope of the remedy provided by law for the mutuum. The reasoning that led Savigny to this conclusion may be briefly stated. He observes that the object that first demands the attention of the legislator is the protection of property. To secure to every man the enjoyment of his own, is the first imperious duty of the lawgiver. To enforce promises is not so urgent ; and accordingly Savigny thinks that legal remedies were provided for property at a time when the fulfilment of promises had no other guarantee than the good f aitli {bona fides) of the promiser. JU e thinks that the first application of actions to promises was in the case of loan — a case that illustrated in a striking manner the necessity for legal protection. He thus contrasts hiring with loan. I let a house to another person for a term, at the ex- piration of which he refuses both to deliver up the house and to pay the rent. Now I can recover my house without going upon the contract, simply as my property ; I cannot however, recover the rent, unless the contract is enforced by law. But suppose I give him a loan of money, thereby making him owner of the money lent. Here, in consequence of my trusting him more, I have no legal remedy at all, because the ownership of the money is changed. Surely, then, this is a case that loudly calls for the assistance of law ; and accordingly it is at this point, Savigny believes, the law of Rome first gave protection to contracts. If the borrower were permitted to retain what he had borrowed, he would have enriched himself unjustly by defrauding the lender ; and it was a principle of the old jus civile to give a condictio against every one that unjustly enriched himself at the expense of another. This he holds to have been the principle on which the condictio was founded, and the only principle at first recognised by the Roman law. He considers that the fictitious sale {nexum) was resorted to in order to bring other contracts within the scope and remedy of loans. The nexurfi was in fact a fictitious loan, and in that capacity it obtained legal recogni- tion. His difficulty becomes greater with the stipulatio and expensUatio, which in their mature form had no special reference to loan. Nevertheless, Savigny believes that both the stipulatio and expensUatio had no other basis in law than as fictitious loans of money. There is, however, another class of contracts not enforced by condictio (the remedy for mutuum, stipulatio, and expensUatio), but by actiones bonae fidei. Savigny holds that contracts resting solely upon good faith do not call so earnestly for protection from the law. The parties, he contends, did not even go before a judge {judex) pro- perly so called ; they went before arbitrators (arhitri). If there was any dispute, as each professed to act in good faith, there could be no pretence for refusing to submit to the decision of an impartial person. The arbitrator, chosen in such a spirit, was not confined to the strict rules of law, but was at liberty to decide according to the dictates of natural honesty and fairness. Such, according to Savigny, is the import of the distinction between actions stricti juris and actions bonae Jidd. In support of his views, Savigny refers to what he considers the probable origin of the stipulation. In the first place, he remarks that the word itself bears testimony in his favour. The most ancient and approved derivation traces it to the same root as atipendium — namely, stips, signifying money ; and he thinks the stipulation rested on 53^ HISTORY OF CONTRACT. the fiction of a loan of money. But apart from the danger of building a theory on a supposed derivation of a word, it is not certain that stipulatio was the original name of the contract. There is reason to suspect that the original name of the contract was sponsio. (D. 50, 16, 7.) It is a necessary part of Savigny's theory that the stipulation did not come into existence for Roman citizens until the abolition of the nexum by the Lex Poetelia (B.C. 326, 324, or 313). Inasmuch as the nexum and stipulatio, according to his views, were both fictitious modes of accomplishing one end, there could have been no neces- sity for the stipulation so long as the nexum was in existence. Savigny says, in- deed, that even before that time aliens living in Rome, who could not use the neicum, may have introduced the practice of dropping the fictitious sale and trust- ing to a solemn form of words. At all events, he thinks that after the lex Poetelia, all, both citizens and aliens, adopted the stipulation as the solemn form of authenti- cating contracts in place of the superseded nexum. Now, as will appear presently, there can be no question that the stipulatio existed long before the lex Poetelia; that it was in vigour at least as early as the XII Tables, and in all probability is of much greater antiquity. This completely disposes of Savigny's theory, even if it were relieved from other and insuperable objections. Ortolan and Sir H. Maine accept so much of Savigny's views as relate to the derivative origin of the stipulation ; but they look upon the nexum as being at first the only contract from which subsequently all the rest descended. The nexum admitted of analysis into two i^arts -the ceremony of the balance and bronze, and the oral or nuncupative part, specifying the object of the ceremony, and determining the nature of the obligation. By dropping the ceremonial part. Ortolan says, the oral or verbal contract of stipulation was obtained. Sir H. Maine carries the derivative hypothesis to its extreme issue, and if his view could be supported, it would reduce very much the primitive elements of law. His general point of view may be thus stated. Nearly the whole civil law may be grouped round three ideas, — Property, Contract, and Testament. Property comes first ; testa- ment is derived from it. This is so far true that the Roman Will was derived from the solemn form of conveying property — namely, the mancipatio ; but this must be taken subject to the qualification that a Will could be made in Rome independently of the testamentum per aes et libram. If now contract also could be shown to be derived from Property, then the three great departments would be reduced to one, and Property would rank as the only primitive element. The bond uniting the two ideas is the nexum, which was simply the name for a mancipatio, when that antique form was resorted to, not for the conveyance of property, but for sanctioning a con- tract. It is an undoubted fact that the same form used in the conveyance of property and in making wills was also employed to give legal effect to some contracts. It is also a fact that certain contracts — such as depositum and pignus — were derived from the ancient nexum. But, on the other hand, the evidence, it is contended, falls completely short in regard to the most important contract of all — the stipulation. Sir Henry Maine lays chief stress upon the analogy of the Roman Will. The argument may be thus stated. The Roman Will in its mature form was, although unquestionably derived from the nexum, unlike its parent in every important particular. In its final shape it was a secret document, revocable up to the death of the testator, until which event it had no force whatever. Now the instrument from which it was derived was, in all these particulars, exactly the reverse. It was irrevocable, it was made in the presence of five witnesses, and it took effect at once. Surely, then, this transformation is as great as was required to evolve contracts out of the nexum. The force of the analogy is, however, weakened by the following considerations. 1. The things compared are not similar. There is no antecedent improbability in the derivation of testaments from conveyance. For what is a testament? In form, doubtless, in the Roman Law, it was the nomination of an heir, but in substance it DERIVATIVE THEORIES. 539 was a means of providing for the posthumous distribution of property. Now, there is nothing unlikely in the derivation of the mode of conveying property after death from the mode of conveying it during life, and a testament was substantially a con- veyance of property to survivors. But contract differs toto coelo from conveyance ; it is at the opposite pole of juridical ideas. It is the standing contrast between jus in rem and jus in personam. 2. There is positive evidence in favour of the derivative character of the Koman Will J there is no evidence, so far as known to the writer, of the derivation of the stipulation from the nexum. We are told in the Digest not merely that the inancipatio gave birth to the form of the testament, but also by whom and by what authority the change was effected. No such evidence, either from Cicero or from Gains, is forth- coming in the case of stipulation. The absence of testimony is not conclusive, but it falls short of conclusiveness only on the supposition that the change from nexum to stipulation was effected by an agency earlier than the PrBstorian. Indeed, there can be no question that the change, if effected at all, was not made by the Praetor. The force of this argument is increased when we remember the characteristics of those contracts that have undoubtedly arisen from the nexum. The difference between them and the stipulation is so marked as in itself almost to compel us to assign another origin to the stipulation. The pignus and depositum are equitable contracts ; the stipulation is a formal contract : the equitable contracts were established by the Praetor ; the stipulation is older than the Praetors : these contracts are but slight deviations from the conveyance of property ; the stipulation may have acts and for- bearances for its object : the equitable contracts are all bilateral engagements, where one of the parties has performed his promise ; the stipulation is a purely unilateral contract. The development of contracts re from nexum offers a much closer analogy to the case of stipulation than the genesis of the Roman Will from inancipatio, and it can hardly be said that the characteristics of the equitable contracts add probability to the theory of the derivation of the stipulation from the nexum. 3. What M. Ortolan asks us to beUeve is that at some time or other, through some agency or other, the nexum. was divested of all the dramatic and solemn part — the fictitious sale per aes et liln-am — and that an equal legal sanction was given to the bare words, being the informal part of the transaction. You have but to leave out the ceremony, the five witnesses, the balance-holder, the symbolic transfer of the bronze, and there remains the oral or nuncupative part ; that is, the stipulation. This is asking us to make a very clean sweep of the nexum; a demand certainly not en- couraged by the example of testaments. When the Praetor extended the testament made by mancipation, he retained seven witnesses, five of whom represented the old five witnesses, one represented the balance-holder, and the other the fa-miliae emptor. To a stipulation, however, no witnesses were necessary. This was a real defect, for which not even an imperfect remedy was provided, until the habit of com- mitting stipulations to writing became general. But there is a stronger answer to M. Ortolan. Drop the ceremonial part of the nexum, he says, and there remains the nuncupation ; that is, the stipulation. There could not be a greater fallacy. The nuncupation is not the stipulation. It is a mere verbal statement. But a verbal statement {unless in the form of question and answer) is a pact, not a stipulation. There is no greater oppojition within the law of contract than that between a pact and a stipulation. A pact was not supported by action; a stipulation was a contract juris civilis. We might be tempted to listen to the hypothesis, unsupported as it is by positive evidence, if it explained the facts, but that is exactly what the hypothesis in question does not do. Two things in the beginning, one thing always, characterised the stipulation. In the beginning, the word spondeo alone could be used — alone had any legal effect ; from the first and always, the verbal statement must be in the interrogative form. Does the nexum throw any light on the exclusive value of the words pondeo 1 None what- 540 EXTENSION OF CONTRACTS. ever, for there is no evidence connecting that word with the mancipation. Does it explain the interrogative form, which, looking at the subject historically, may be called the essence of the contract ? Not any more, for every formula handed down to us as belonging to the transaction per aes et libram is direct and categorical, not interrogative. So far, therefore, as the evidence is worth anything, it tells the other way. Perhaps it may be suggested that the interrogative form was adopted in place of the fictitious sale per aes et libram. But that again is mere conjecture ; itself » hypothesis to support a hypothesis. The conclusion, therefore, seems unavoidable, that the hypothesis of the derivation of contract from conveyance, through the nexum, is not supported by evidence. It is clear that if the stipulation was derived from the nexum it must have been prior to the XII Tables, and that means really in the prehistoric age of Roman Law. The burden of proof rests with those that affirm a connection between the stipulation and the nexum. The absence of positive testimony would not be conclusive ; for although the stipulation may have been carved out of the nexum in prehistoric times, traces of the operation might continue until within the historic period. But no such traces have been indicated. The nexum had five witnesses ; the stipulation required none. In the examples of nexum that we know the action was bonae fidei ; in stipulation, the remedy was strictl juris. So far, then, as the records of Roman law help us to a conclusion, the suggestion that " contract " is the offspring of " property " seems really to have no other support than its own inherent fascination. The circumstance that we know very little, indeed almost nothing, of the nexum, but that the materials for a history of the stipulation are tolerably abundant, may be explained by saying that the nexum belongs to a hoary antiqiiity, and was superseded by its more versatile and useful child, the stipulation. But it may also be explained by the suggestion that the mancipatio was never perverted for the purpose of contract except in a very few cases, and that these lost nearly all their importance as soon as the Praetor introduced equitable actions. Ywi-a.— EXTENSION OF EQUITABLE CONTRACTS. I. — Innominate Eeal Contracts. Paul, in a well-known formula, sums up all the cases of in- nominate contract. Either, says he, I give something to you in order that you may give something to me, or I give some- thing to you in order that you may do something for me ; or I do something for you in order that you may give something to me, or I do something for you that yon may do something for me. {Do tibi ut des ; do ut facias ; facio ut des ; facio ut facias.) (D. 19, 5, 5, pr.) This classification proceeds upon the distinction between a promise to do and a promise to give, so familiar to Koman lawyers, owing to the difference between a definite and an indefinite demand {certa and incerta intentio). In itself however, it is a distinction without much logical value — the general word " to do " including " to give." It omits, moreover, the negative form " not to do," for that may equally, with the positive form, be the object of a promise. Paul's formula ought to be co-extensive with every kind of contract, and had better be expressed thus : — INNOMINATE REAL CONTRACTS. 54 1 I do something in order that you may do something. Faeio ut facias. I do something in order that you may not do something. Facio ut non facias. I abstain from doing something in order that you may do something. Non facio ut facias. I abstain from doing something in order that you may not do something. Non facio ne facias. It will be convenient, however, to arrange the illustrations according to the formula of Paul, in order to bring out more clearly the anakigies between the innominate and the other contracts. I. Do ut des. I give that you may give. 1. Analogy to sale. Exchange {Permutatio). The comparison of sale — the giving of a thing for money, with exchange — the giving of one thing for another, is instruc- tive. Sale is a consensual contract, but exchange is not. Hence a mere agreement to exchange was without obligatory force imtil one of the parties had given what he promised. (D. 19, 4, 1, pr. ;■ D. 19, 4, 1, 2 : C. 4, 64, 5.) Moreover, the duty of exchange was different from sale. The seller was not bound to make out a good title ; even if he sold what was not his own, the contract of sale was good, and he was bound simply to compensate the buyer when evicted. But in exchange both parties were bound to make a good title ; and hence if one dehvered what was not his own, the contract was wholly void. (D. 19, 4, 1, 3.) A. gives B. a vase, B. promising to give A. in exchange a horse. E. refuses to do so. What is A.'s right ? To the horse, or only to the return of the vase ? In one passage, Paul is made to say that A.'s right is merely to the restitution of his vase (D 19, 4, 1, 4) ; but in another passage he says that A. has an option, and may, in his own discretion, demand either the restitution of the vase, or damages for the non-delivery of the horse. (D. 19, 5, 5, 1.) In exchange, as in sale, pending delivery the thing remained at the risk of the person to whom it was to belong, and he that was bound to deliver was responsible only for reasonable care. (D. 19,5,5, ].) 2. Analogy to sale. Variations, by agreement, in the essence of the contract. Changes could be made in the contract of sale within very extensive limits'. But no variations were permitted in the essential characteristics. It a contract were made resembling' 542 EXTf:NSION OF CONTRACTS. sale, but differing in an essential feature, it would not be a consensual contract, but could be enforced only as an equitable contract. Julius gave Attius 5 aurei, Attius undertaking to give Julius the ownership of the slave Stiohns. Before being delivered, Stiohus died. Could Julius demand back his money ? If it were a sale he could not, because the risk attached to the buyer from the moment of the sale. But the obligation in sale was not to make out a good title ; it was simply to deliver. This case, therefore, is not a sale, and Attius being unable to give Stichus, who has died, must refund the money. (D. 12, 4, 16.) Lucius Titius agrees to give Gains Seius a pearl, to be returned within two months, or its value, estimated at 10 aurei, paid. This was not sale, because Gaius Seius had the option of returning the pearl : nor letting on hire, because there was no considera- tion, no sum agreed on for the use of the pearl : nor mandate, because if Gaius Seius could sell the pearl within two months for more than 10 aurei, he was to keep the balance : nor partnership, because if there was any profit, it all went to Gaius Seius. (D. 19, 3, 1, pr. ; D. 19, 5, 13, pr.) As such an agreement did not fall within any of the consensual contracts, Gaius Seius could not compel Lucius Titius to give him the pearl ; but if Titius had done so, he could by an action in factum compel Gaius Seius to restore the pearl within two months, or pay its value. (D. 19, 3, 1, pr.) From its special character this was sometimes called the actio de aestimato. Suppose now, before Gaius Seius has sold the pearls, or the two months have expired, the pearls have, without his fault, been lost, who is to bear the loss ? Ulpian, repeating the opinion of Labeo and Pomponius, says that if Titius asked Seius, Titius must bear the loss ; if, on the contrary, Stius asked Titius, Seius must bear the loss ; if neither specially was responsible for the negotiation, then Seius was to answer only for reasonable care. (D. 19, 5, 17, 1.) This is an example of the general rule de- termining the amount of care exigible in contracts. If Titius made the request, then presumably Seius acted out of favour ; if Seius made the request, presumably it was for his own profit ; if neither specially, then presumably it was for the benefit of both ; in which case both parties answer for due diligence, but not for accidental loss. 3. Analogy to Letting on Hire. Titius gives the loan of his slave Stiohus, who is a carpenter, for a month to Gaius, Gaius agreeing to give him in return an equal time of Pamphilus, also a carpenter. Gaius refuses to do so after Stiohus has been with him for a month. Titius cannot sue for hire, because an exchange of the use of slaves is not »■ price {merces certa). Inasmuch, however, as he has actually lent Stichus, he can by the actio in fact/urn compel Gaius to give him the use of Pamphilus. (D. 19, 5, 25.) 4. Analogy to Mutuum or Mandatiiin. Licinius asked Victor for a loan of money. Victor having no money, gave him a vase to sell, and to take the price of it as a loan. Licinius sold the vase, but did not use the money. By what action can Victor recover it ? He cannot sue for it aa a loan, because until Licinius has used the money there is no mutuum. Neither is this a mandate, because it was not the intention of either party that Licinius should be the agent of Victor. But as Victor had delivered the vase, he could recover the price of it by the actio in factum. (D. 19, 5, 19, pr. ) Titius gave Sempronius 30 aurei, to be let out at interest by the latter. Sem- pronius undertook to pay the tribute due by Titius, Sempronius being charged with interest at the rate of six per cent, per annum. If that allowance of interest exceeded the tribute, the excess was to belong to Titius ; if it was less, the deficit was to INNOMINATE REAL CONTRACTS. 543 diminish the principal : if the tribute swallowed up mere than the principal and interest, Titius must refund the excess to Sempronius. No stipulation was made. The interest, taking it at six per cent., exceeded the amount of the tribute. By what action could Titius recover the surplus ? Not by the actio ex muiuo, because as Sempronius was not bound to return the principal in the event of its being lost with- out his fault, the transaction was not a loan. Nor was the contract a mandate, for if Sempronius got more for the money than six per cent., he kept the excess to himself. The remedy, then, was by actio in factum. (D. 19, 5, 24.) 5. Analogy to Deposit. Titius and Seius make a wager (sponsio], and each deposits a ring with Sempronius, who engages to give both to the winner. Titius wins. Sempronius refuses to give up either ring. Titius can sue him by the actio in factum praescriptis verbis ; not for deposit, because he did not deposit Seius' ring. (D. 19, 5, 17, 5.) Cornelius gives money to Seius to give to Titius, if he succeeds in bringing back the fugitive slave of Cornelius. Titius fails, and Seius refuses to restore the money. This is not a case of deposit, because Seius undertakes not merely the custody of the money, which is all that is involved in deposit, but also a special trust to give the money to Titius in a certain event. Cornelius will, therefore, recover his money by the actio in factum praescriptis verbis. (D. 19, 5, 18.) 6. Analogy to Commodatum. Titius and Gains are walking by the Tiber, when Titius asks tn see Gains' ring. While looking at it, he lets it fall, and it rolls into the Tiber, and is lost. Merely looking at a ring hardly constitutes a use within the meaning of comnwdatum, but Titius could be sued by the actio in factum for failing to return the ring after he had looked at it. {D. 19, 5, 23.) If the ring had been struck out of his hand without any fault on his part, Titius would not have been responsible. (D. 19, 5, 17, 2.) Seia shows a ring to Julius, who undertakes to ascertain its value. This is neither a deposit nor a loan [commodatum) of the ring. Suppose, then, Julius refuses to give it back, or by his negligence loses it, what remedy has Seia? Or suppose Julius sends it by a careless servant, who loses it on the way. If Seia wished to sell the ring, and Julius gratuitously undertook to make inquiries for her, he is not answer- able merely for his own or the messenger's negligence ; but if Julius for his own purposes procured the custody of the ring, he was bound to answer for his own negligence, and also for the messenger's, if the latter was not a trustworthy person. (D. 13, 6, 10, 1 ; D. 13, 6, 11 ; D. 13, 6, 12 ; D. 19, 5, 1, 2.) Calpurnius wished to buy plate, and Titius, a goldsmith, sent some for inspection. This is evidently neither deposit nor loan. Calpurnius did not approve the specimens, and sent them back by his slave Stichus. On the way Stichus was beaten and robbed of the plate. The loss falls on Titius. If, however, it had been stolen from Stichus, his master would have had to pay for his negligence. (D. 19, 5, 20, 2 ; D. 19, 5, 17, 4.) Titius gives Seius some cups, Seius undertaking to return either the cups or their weight of equally good silver. This is not commodatum, because the obligation is not to return the identical cups, and the remedy is by the actio in factum. (D. 19, 5, 26.) Titius owes money to Maevius, and Maevius to Sempronius. Titius, in order to procure delay from Maevius, gave him some golden vessels that he might give them as a pledge to Sempronius. This is not a commodatum with Maevius, because there is a consideration for the use ; nor is it locatio conduciio, because the consideration — the granting a respite to Titius — is not a pecuniary one. (D. 13, 7, 27.) 544 EXTENSION OF CONTRACTS. II. — Do UT FACIAS. 1. Analogy to Letting on Hire. Titius repairs the house of Gaius on condition that Gaius shall repair a house of Titius. This is not locatio condMCtio, because it is an exchange of services for services, not of services for money. Gaius must, however, repair the house of Titius, or be amerced in damages by the actio in factum, (D. 19, 6, 5, 2.) Julius allows Attius to dig for chalk in his land, Attius agreeing to fill up the excavations. Attius does not do so. He may be sued by Julius by the actio in factum. (D. 19, 5, 16, pr.) The actio locati would not lie, because no rent was paid for the use of the land. Sempronius gives his slave Stichus to Maevius, who undertakes to manumit him. After the time agreed upon, or a reasonable time has elapsed, Maevius fails to manumit Stichus. Sempronius can either reclaim the slave (by a condictio), or ask damages for non-performance of the agreement if the slave has been injured or made away with. (D. 19, 6, 5, 2.) Sempronius gives Maevius 10 aurei as an inducement to him to manumit his slave Pamphilus. Maevius delays the manumission. Sempronius can then sue Maevius for damages if he would have derived any benefit from the manumission of Pamphilus. If, however, Sempronius derives no benefit from the manumission, he can reclaim his money. (D. 19, 5, 7.) Sempronius gives his slave Stichus to Maevius on condition that Maevius shall manumit his slave Arethusa. Maevius manumits Arethusa, and afterwards is evicted from Stichus, who is taken from him in a lawsuit at the instance of the true owner. If Sempronius knew that he was not owner his conduct is fraudulent, and he would be amenable to the actio de dolo ; if he were a iona fide possessor, he is still liable in damages by an actio in factnim. (D. 2, 14, 7, 2.) III.— i^^C/0 VT BBS. At this point the analogy, with the nominate contracts, becomes weak, and considerable doubt prevailed, even in the time of Paul, whether in the absence of fraud such contracts could be enforced. But the texts are quite clear that in this case also the principle of the equitable contracts should apply. Titius having lost a slave, offers a reward to the finder. Gaius pursues and restores the slave. Has Gaius any right to recover the promised reward % Ulpian observes that such a promise could not be called a nude pact, incapable of supporting an action ; what it was, however, he felt some diflEculty in stating (AaJiet in se negotium aliquod). Ulpian at this point nearly struck upon the principle of valuable consideration ; but he goes off without making the discovery, and says the remedy is the actio in factum, unless perhaps the action for fraud would lie (actio de dolo). (D. 19, 5, 15.) Seia wrote a letter to Lucius Titius, saying that if he still had the affection for her that he once had, he was, on receipt of the letter, to sell his property and go to her • and she promised him a salary of 10 aurei a year during her life. Titius sold off his property and went. If there was nothing improper (contra bonos mores) in the arrangement, he could recover the salary. (D. 44, 7, 61, 1.) IV". — FaCIO UT FACIAS. Titius has a slave Stichus, the son of Gaius, and Gaius has a slave Pamphilus, the son of Titius. Titius agrees to manuuiit Stichus, and Gaius to manumit Pamphilus. Titius does so ; but Gaius refuses. Titius has an action (in factum praescriptis verbis) PACTS. 545 against Gaius to recover the value of Stiehus, whom he has mamv-nitted. (D. 19, 5, 5,.5.)_ Titius has a debtor in Carthage, and Gaius a debtor in Rome. Titius and Gaius agree that Titius shall collect and keep the debt in Rome, and Gaius collect and keep the debt in Carthage. This resembles mandate, but differs from it in a material point. If each collected the debt as agent at the cost and risk of the principal, it would be mandate ; but in this contract they exchange debts, and each takes upon himself the whole cost and risk of collection. On the other hand, it might be said that the expense incurred by one is a set-off to the expense incurred by the other ; and ic might be argued that in collecting the debt each acts as an agent, but that the responsibility of each as principal has Taeen compounded by special agreement. Paul, however, considers it the safer course to treat the case not as mandate, but by the actio in factum praescriptis verhis. (D. 19, 6, 5, 4.) Sempronius and Maevius mutually agree that Sempronius shall put up a building on the land of Maevius, and Maevius build on the land of Sempronius. In this case, also, the safest remedy, if Sempronius has- built and Maevius refuses, is the actio in factum praescriptis verbis. (D. 19, 6, 5, 4.) SiXTB..— EXTENSION OF CONTRACTS FOE VALU- ABLE CONSIDERATION. Agreements {Facta). The class of consensual contracts, like that of equitable con- tracts, was at first limited to a small number of specified agree- ments. But just as the pi-inciple of the equitable contracts suggested and necessitated the class of innominate real con- tracts, so the principle of the consensual contracts would seem to justify a wide extension of the class of contracts in which consent alone should give rise to actions. But this step was not taken. The jurists failed to extract the principle of valuable consideration from the contracts where it was implicitly admitted. The Eoman law refused to enforce any promise the value of which coiild not be measured in money ; if it had gone so far as to proclaim that there must be a consideration also of money or money's worth, it would have attained the goal to which it was constantlj' and unconsciously tending, but which it never actually reached. We have now to consider how far the Eomans succeeded in filling up the blank in their system due to their failure to apprehend and apply the principle of valuable consideration. With regard to an agreement between any two persons con- taining any unfulfilled promise, the law may take one of several courses. (1) It may regard the promise as wholly void, so that even if it is fulfilled, it will order restitution. (2) It may not go so far as to order restitution, but it may refuse in any way to give efiect to the promise, if the promiser declines to fulfil it. (3) If there are reciprocal promises, it may recognise the agreement 2 M 546 EXTENSION OF CONTRACTS. so far as to refuse its assistance to a promisee, with reference to that agreement, unless he also performs his promise. (4) It may- compel the promiser to fulfil his promise, or answer in damages for non-performance. In respect of the two first-mentioned courses, we may briefly say that the agreement in law is void. The last two courses indicate a difi'ereuce of treatment adopted by the Roman law. Those agreements (with the limitation presently to be noted) that the law does not directly enforce, but which it recognises only as a valid ground of defence, are called Pacts {Pacta). Those agreements that are enforced — in other words, are supported by actions — are called Contracts (^Contractus). These terms are ancient. Pactum is found, as a verb, in the XII Tables. The thing, if not the name of con- tract, is still more ancient. Contractus was the name for all those conventions or agreements that were recognised and enforced by actions. The exceptions are few, belong to a late period, and will be duly signalised. History op Pacts. 1. Pacts in relation to Delicts. In the XII Tables a provision is made that if one breaks the limb of another, unless he is forgiven, he must submit to his own being broken. (&' membrum rupsit ni cum eo pacii talio esto.) The punishment of retaliation could not be avoided except by coming to terms with the injured person. This is an example of the rule that an agreement to waive an action for a delict is binding, and a good answer to the action. (D. 2, 14, 7, 14.) The effect of such a pact was entirely to take away the sufferer's right of action. A special defence was not necessary, but if it appeared in evidence that the sufferer had agreed not to sue the wrong-doer, he was defeated. (D. 2, 14, 17, 1.) 2. Pacts in relation to the Divestitive Facts of Contract. At some period, which it would be difiicult to determine, but which was certainly before the time of Cicero {De Orat. 2, 24 ; Pro Puhlio Quintio, 5), the Pr^tor inserted a provision in his edict, making a pact a good defence to an action on contract, as well as to an action on a delict. He said (D. 2, 14, 7, 7), " I will support all pacts that do not sin against good faith or any Statute, Plebiscitum, Senatus Consultum, or Imperial Constitution, and which are not an evasion of these." ^ 1 Pacta conventa, quae neque dolo malo, neque adverstus leges, Plebiscita, Senatus Conmlla, edicta principum, neque quofraus cui eoi-umjlat, facta ejntni, senabo. PACTS. 547 The pact specially in view of the Prastor was doubtless the pact of release {de non petendo). Each contract had its special divestitive as it had its special investitive facts. A contract per aes et libram could be dissolved only per aes et libram. A literal contract was terminated by writing ; a stipulation by a stipulation. A mere verbal release from a formal contract had no effect. But it would have been against good conscience to allow a person to reimpose upon another, by taking advantage of the forms of law, an obligation that he had deliberately, though informally, cancelled. The Prsetor, therefore, by in- serting an exceptio in the pleadings, practically enabled any contract to be dissolved by mere consent, without any formality. A technical distinction was still preserved. When a contract was dissolved by its appropriate divestitive fact, it was said to be extinguished ipso jure, so that it could no longer support an action. But when the release was made by a pact, the contracts of stipulatio and expensilatio were not held to be dissolved ; on the contrary, they were still in contemplation of law sub- sisting, but if attempted to be enforced would be defeated by the insertion of a special defence in the pleading {exceptio pacti). Moreover, if a debtor has agreed wtli his creditor that he shall not be sued for payment, still none the less he remains under the obligation. For by a mere agreement obligations are not in every case dissolved. The action is therefore available against him in which the plaintiff uses as his intentio Si paret eum dare oportere (if it appears that he ought to give). But it is unfair that, despite his agreement, he should be condemned ; and therefore he can defend himself by the exceptio pacti conventi. (J. 4, 13, 3-) Thus, in effect, although not in form, the Prtetor, by sanc- tioning informal releases, took away all necessity for resorting to the formal releases. In other words, the pact of release superseded the formal divestitive facts. 3. Pacts in relation to the Investitive Facts of Contract. In describing the consensual contracts, attention was drawn to the distinction between those rights and duties that were annexed to each contract by law, and those that were added by special agreement of the parties. Such a special agreement was called " added pact" {pactum adjectum). (D. 2, 14, 7, 5.) The effect of such a pact differed according as the contract was stricti juris or honae Jidei. The stipulatio, expensilatio, and mututuii are contracts stricti juris ; all others ai'e bonae Jidei. (1.) In contracts bonae Jidei a pact had a different effect, 548 EXTENSION OF CONTRACTS. according as it was made at the time of the contract and as part of it, or subsequently. Those made at the time of the contract, and as part of it (in continenti), were of equal validity with the contract itself {pacta conventa inesse bonae fidei judiciis). (D. 2, 14, 7, 5.) This would seem to be a plain dictate of common sense. In a consensual contract, for example, where no form was required, what could be more reasonable than to give effect to the pacts or agreements made by the parties ? And yet, as we have seen in tracing the history of the contract of sale, that view was by no means at first accepted by the Roman law. Variations or additions to the primitive or naked contract of sale could at first be made only by the solemn form of stipu- lation, and were enforced by the action given to stipulation. At length, however, the liberal opinion of Sabiiius triumphed, and it was held that all terms agreed upon by the parties to a con- tract honae Jidei as part of the contract were to be enforced by the same action as the contract itself. (D. 18, 5, 6 ; D. 18, 1, 6, 1 ; D. 19, 1, 11, 6 ; D. 19, 1, 11, 3 ; D. 18, 3, 4, pr.) Pacts made not at the time of the contract, but subsequently (ex intervallo), either varying the terms of the contract, or wholly or partially dissolving it, could be used as a defence (exceptio) to an action on the contract. But it did not follow that such a pact would support an action. For the rule here applied, that a nude pact was available as a plea in defence, but could not be enforced by action.^ The distinction is not without reason. A pact made at the time of the contract is within the consideration of the contract ; but a pact made sub- sequently is either gratuitous or supported by a new consid- eration. It would, therefore, be quite logical and consistent to irefuse to subsequent pacts any effect except byway of defence. The rules adopted by the Roman jurists were as follows : — If the subsequent pact affects the essence of the contract (natura or substantia contractus), such as the price in a contract of sale, it is, in fact, a new contract relating to the same subject- matter as the old, and superseding it. It therefore gave rise to an action. If, however, the pact does not vary the essence of the contract, but only such collateral rights and duties as could have been inserted at the making of the contract, it cannot be enforced by action, but is, as in other cases, avail- able only as a plea in defence. (D. 18, 1, 72, pr-. ; D. 2, 14, 7, 5.) ' Nudapactio oUigaiionem, non pavit, sed parit exceptionem. (D. 2, 14, 7, 4.) PACTS. 549 Titius buys a slave from Maevius ; and after the sale it was agreed that Maeviiis should give the usual security against eviction with sureties. If, now, Maevius refuses to give sureties, he cannot be sued upon the pact ; but if he has not got his price, he will be repelled in suing for it if he does not give the sureties according to his promise. If he has actually received his price, the buyer has no remedy. (D. 18, 1. 72, pr.) (2.) In contracts stricti juris the rule was somewhat different. A subsequent pact (pactum ex mtervallo) relating to a stipulotio, expensilatio, or mutuum, has no other effect, in any case, than as a defence (exceptio). It is even a question whether a pact made at the same time as the contract, with the view of modi- fying it, could be treated as part of the contract. In the case of stipulatio and mutuum, however, to some extent this was admitted. Thus, if all the terms of the contract were not em- braced in the stipulation, but some were omitted, these were regarded as contained in the stipulation. (D. 12, 1, 40.) An agreement was made for a loan, and that so long as interest was paid the principal should not be demanded. The return of the money was promised by stipula- tion, without any reference to the agreement about the return of the principal. It was held that the condition must be regarded as if it had been part of the stipulation. (D. 2, 14, 4, 3.) I give you 10 aurei, and you agree to repay 20. The debtor is not bound to restore more than 10. (D. 2, 14, 17, pr.) I give you 10 awrei, and you agree to repay 9. The debtor is bound to repay 9, and not more. (D. 12, 1, 11, 1.) Pacts enforced by Action. A simple agreement (pactum) could not originate a contract. It was used to dissolve a contract, or to vary and amplify the usual terms of a contract, but not to create one. Pacts were auxiliary to contracts. But in a very few cases, pacts were, to employ a common metaphor, clothed with actions, and thus practically elevated to the position of the consensual contracts. The cases are, indeed, fewer than is sometimes stated. Thus, an agreement of compromise (trans actio), unless there was a stipulation, or something given or retained (that is, unless there were a contract re or verbis), did not support an action. (D. 2, 15, 2 ; C. 2, 4, 38.) But in two cases the Praetors, and in two others the Emperors, did undoubtedly raise certain pacts to the level of contracts. To the Praetor is due the pact of hypotlieca, which has been already described. Even more ancient than hypotlieca is the pactum de constituto, which, as mainly a form of suretyship, will be discussed under the head of Accessory Contracts. 55° EXTENSION OF CONTRACTS, The Emperors Tlieodosius and Valentinian enacted in A.D. 428, that a mere agreement to give a dowry should be binding without any stipulatio. (C. 5, 11, 6.) Thus was added to the investitive facts of the dos the pactum de constituenda dote. Finally, Justinian sanctioned the greatest change of all — the pactum donationis. Before this, a promise without considera- tion was not valid, unless made by stipulation. (Vat. Frag. 264a: 263: 310.) Justinian put a promise to give a thing gratuitously on the same footing as if a price had been agreed upon. Up to this time an agreement, not involving a valuable consideration, required either to be invested with a solemn form {nexum, stipulatio, expensilatio), or to have been performed by one of the parties, to give it legal validity. By giving an action to support a mere informal promise of a gift, Justinian departed from the unbroken tradition of Roman law. He may have been led to adopt this course by one of two reasons. In the first place, the formal contract — the stipulatio — had lost much of its solemnity ; it was divided by a very thin line in- deed from a pact. The stipulation was in the form of question and answer ; the pact was not. Even this thin partition was removed if the agreement were put in writing, for an allega- tion in writing that the form of stipulation had been observed, could not be overthrown by calling evidence to prove that it had not. But, in the second place, Justinian had mainly in his eye gifts for pious purposes. He declares with warmth, that when gifts are promised to religious persons or for pious uses, to refuse fulfilment merely on account of the absence of a legal formality showed not only a want of moral principle, but en- dangered the salvation of the promise-breaker — provoked not merely an action at law, but the wrath of Heaven. Justinian, therefore, enacted that all promises of gifts should bind, not only the promiser but his heirs, as well as be executed even to the heirs of the promisee. (C. 8, 54, 35, 5.) g'^cottli ^art. COEEEALITY— JOINT OBLIGATIONS. {IN SOLIDUM OBLiaARl-COR&EI.) Hitherto it has been assumed that there were only two parties to a contract^a debtor and a creditor. We must now consider the effect of adding one or more persona ; for there may be several creditors and one debtor, or several debtors and one creditor, or several debtors and several creditors. The multiplication of parties in a legal relation is not peculiar to contract. In almost every legal transaction there may be more than two parties ; and when that happens, modifications in the legal relation necessarily follow. The character of those modifications must necessarily be determined by the nature of the subject-matter ; and accordingly, in the different depart- ments of law, we find a corresponding difference of treatment. When a Delict was committed by several persons, their liability differed according as the delict descended from the old jus civile, or owed its introduction to the Preetor. In the first category are injuria, furtum, vi bonorum raptorum, and damnum injuria. (D. 47, 10, 34; J. 4, 1, 11 ; D. 47, 8, 2, 15 ; D. 9, 2, 11, 2.) The rule was that each of several persons com- mitting one of those delicts was separately liable to pay the full penalties or compensation incurred, as if he alone had com- mitted the offence ; and thus the person injured could recover as many penalties or compensations as there were delinquents. The explanation of the rule given by Ulpian ie stated too hroadly.^ It is true that by the XII Tables, injuria (D. 9, 2, 2, 1) was a penal action, and so was the action on the lex Aquilia, when the defendant disputed his liability ; but penal actions introduced by the Praetor, as we shall see presently, were ^ Nunquam actiones poenales de eadem pecunia concumntes alia aliam consumit. (U. 44, 7, 60.) 552 CORREALITY. governed by a different rule. The reason of the rule is that the actions for delict were quasi-criminal, and the rule of criminal law was applied, that when several join in a crime, each is punished separately, and does not escape by the punish- ment of the others. It would have been absurd in the case of such joint offences to lighten the penalties by dividing them among the delinquents. Accordingly, when the action did not partake of a quasi-criminal character, but was simply for the recovery of stolen property or its value (condictio furtivd), a different rule was followed. Each of the persons engaged in the theft was liable to be sued, even although the property might be in the possession of some of the others ; but if one paid the amount, all the rest were released. (C. 4, 8, 1.) On the other hand, if an injury was done by one person to property belong- ing to several persons, each of those, but not more than one, could sue the delinquent for penalties. (D. 44, 7, 53, pr.) In this case, the amount recovered must be divided among the joint owners. The rule adopted in the condictio furtiva was applied by the Prastor to all offences established by his edict, whether a penalty was imposed or compensation only was allowed. The delicts introduced by the Praetor partook of the character of civil wrongs rather than of crimes ; and if the sufferer obtained full satisfaction, it would have been unreasonable to allow him to recover as many sets of damages as there were wrongdoers. Therefore, while any one of the co-delinquents might be sued, or all in succession, if need be, if the penalty or adequate com- pensation was paid by one, the others were released. This rule applied to persons responsible for things thrown or poured out of a room into the street {de effusis et dejectis) (D. 9, 3, 1, 10 ; D. 9, 3, 3) ; to forcible interference with in jus vocatio (D. 2, 7, 5, 3) ; to interference with appearance in judicio (D. 2, 10, 1, 4) ; to the actio de dolo (D. 4, 3, 17, pr.) ; to the afction for metus (D. 4, 2, 14, 15 ; D. 4, 2, 15). The delinquent compelled to pay had no right of contribution against his co- delinquents, if it was a case of wilful wrong-doing.^ But if not, as in things effusa or ejecta, the one compelled to pay could recover a proportion of the penalty from those jointly liable with him, by the actio pro socio, if they were partners ; and if not, then by an actio utilis. (D. 9, 3, 4.) 1 Nee enim ulla societas maleficiorum vel communicatio justa damni ex moJfficio. (D. -27, 3, 1, 14.) JOINT LEGAL TRANSACTIONS. 553 In the case of Property a different class of considerations comes into play. The relation of joint owners is determined by the maxim, uhi emolumentum, ibi sentit et onus. If a slave or animal, belonging to several persons, does harm, it would not be fair to require the sufferer to divide his claim and pro- ceed separately against each owner. Co-owners are jointly liable to third parties, and any one of them may be sued for the whole damage. (D. 9, 4, 5, pr. ; D. 10, 3, 8, 4.) But, as between themselves, all expenses incurred on account of the joint property must be divided in proportion to their shares. The law of Inheritance presents us with an instmctive example of the application of opposite rules in the same case. In so far as an inheritance consisted of property, all the co- heirs were joint owners. But debts due to or by the deceased were divided in proportion to the several shares of the co-heirs. Thus, if 100 aurei were due to a testator and he had four heirs entitled in equal shares, each of the heirs can sue for 25 aurei, and cannot sue for more. In like manner, if a testator owed 100 aurei, and left three heirs, one-half to one heir, and the other half equally between the other two heirs, the first heir can be sued for 50 aurei only, and the other two for 25 aurei each. This rule was a hardship to the debtors or creditors of the deceased, for it might involve them in as many lawsuits as there were heirs. But this hardship was ignored, in considera- tion of a still greater hardship that the rule of joint obligation would have inflicted upon the co-heirs. Each heir was bound to pay the whole debts of the deceased, even if no property or insufficient property were left to pay them ; and if, in addition to this liability, each heir had been made a surety for his co-heirs, there would have been a considerable increase in the reluctance of nominated heirs to accept inheritances, and an aggravation of the evil that legislation persistently attempted to remove. But these considerations do not apply where a joint obliga- tion is imposed upon two or more heirs by a testator. Here the duties of the co-heirs are determined solely by the intention of their testator. His will is the sole law. Thus, if A. or B. or A. and B. (co-heirs) are required to give 10 aia-ei to C, C may sue either A. or B., or both ; but if one pays, the other is released.^ (D. 45, 2, 9, pr. ; D. 30, 8, 1 ; D. 32, 25.) Whether if A. paid ' Si cum uno actum sit et solutum, alter liberetur. (D. 80, 8, 1.) MrPoste says the words in italics are an interpolation, and were not true in the time of Pomponius, who wrote the passage. There does not appear to be any necessity for this suggestion. 554 CORREALITV. the whole, he could compel B. to pay half, depends tipoD the view that would be taken of the intention of the testator. The obligations of Co-Tutors were the result of conflicting considerations. On the one hand, children were so much at the mercy of their tutors, that it was necessary to hold tutors with a very tight hand, and especially to prevent fraud by permitting them to dispiite the blame among themselves, when the pro- perty of the pupil was lost. On the other hand, the office of tutor was the most thankless task a Roman could undertake. He re- ceived no payment, he could not refuse the office, and he had no choice whatever in regard to the persons that were chosen as his colleagues. These considerations were made to yield to the imperious necessity of protecting helpless infants. In respect of the pupil, co-tutors were reciprocally sureties for each other, and each was liable for the delinquency of the rest (C. 5, 52, 2) ; but the pupil could not recover compensation twice over by suing the tutors separately. (D. 27, 3, 15 ; D. 16, 3, 1, 43.) The hardship of the tutor's lot was mitigated, in some cases, by the beneficium, eiccussionis (D. 26, 7, 3, 2) ; the hene- ficiuin cedendarmn actionum (D. 46, 3, 95, 10 ; C. 5, 52, 2), and the beneficium divisionis (D. 27, 3, 1, 11-13.) (For an explana- tion of these terms, see pp. 568, 578.) The question of joint-obligation in Contract presents a con- trast to the instances cited. In those instances, the law is varied according to the requirements of justice or policy, in accordance with varying circumstances. But in contract, joint-obligation, like every other question arising out of con- tract, is determined by the intention of the parties. The rights and liabilities of the parties are determined by themselves. (C. 8, 40, 1 ; C. 8, 40, 3.) There was, however, a presumption in favour of separate as against joint-obligation. Thus, if A. and B. promise 100 aurei to C, and the intention is that each shall owe 50 aurei to C, there is no kind of joint-obligation, and C. can sue each only for 50 aurei. In the same way, A. may promise 100 aurei to B. and C, meaning 50 to each. A. owes two debts of 50 aurei, and not one debt of 100 ; or, in the language of the Digest, A. does not owe 100 aurei in solidum, but a pars virilis to each. Unless by express terms, or from the very mode of contracting, a joint-obligation was shown to be contracted, it was held, as in the above cases, that the debts were divided. (D. 45, 2, 11, 1 ; D. 45, 2, 11, 2.) RIGHT OF CONTRIBUTION. 555 But if the intention were that either (but not both) of two ci'editors should be entitled to sue for the whole 100 aurei, or that either (but not both) of two debtors should be liable to pay the whole 100 aurei, then the obligation was joint. A joint- obligation exists when the whole debt or other object of a con- tract may be sued for by any one of several creditors, or may be recovered from any one of several debtors. Such debtors are said to be bound in solidum (that is for the whole), and they are called either correi promittendi or dehendi (D. 45, 2, 1), or more commonly duo rei promittendi (duo being used merely by way of example). Similarly, joint-creditors are called correi stipulandi or credendi, or more commonly dva rei stipulandi. (D. 45, 2.) Definition. Obligations of this sort make tlie whole due to each stipulator, and bind each promiser for the whole. And yet though there are two obligations one thing only turns on them. If, therefore, on either side any one receives what is due or pays it, he puts an end to the obligation of ail, and sets all free. (J. 3, 16, i.) Some "writers consider that this passage does not correctly or fully describe cor- reality ; it is a description, in their view, of solidarity and not of oorreality. As to the alleged difference between solidarity and correality, see note at end of this section. The passage is intended to explain the form of joint-obligation known to the Eoman law, and is one among many that may be cited in disproof of the alleged distinction. Eights and Duties. A. Duties of correi promittendi to the creditor, and rights of correi stipulandi against the debtor. 1. Each of several joint-debtors may be compelled to pay the whole or any part of the debt. The creditor may sue any one of the joint-debtors for the whole or any part of the debt (C. 8, 40, 3 ; C. 8, 40, 2 ; D. 45, 2, 3, 1 ; D. 30, 8, 1) ; but he cannot be compelled so to divide his claim, even if all the joint- debtors are solvent. (D. 45, 2, 11, pr.; D. 19, 2, 47; D. 46, 1, 15, 1.) 2. Payment in whole or in part, by one of several joint- debtors, is a discharge in whole or in part of the other joint- debtors. (D. 46, 2, 31, 1 ; D. 46, 3, 34, 1.) B. Rights of correi as between themselves. (a) Joint-creditors. If one of several joint-creditors obtains payment of the whole debt, must he share it with the other creditors ? The answer is, that it depends entirely upon the intention of the parties. The 556 CORREALITY, mere fact of correality is not conclusive. The mere fact tbat two persons have each separately a right to recover a sum, does not throw light on the question, whether the sum, when recovered, is to be retained by one, or divided between the two ; or, if divided, in what proportions. If, therefore, a credi- tor sought to obtain a share from his co-creditor, to whom the entire debt had been paid, he must prove aliunde that the joint- obligation was entered into with the intention that the proceeds should be divided between them in definite shares. The action would be either pro socio or mandati. (b.) Joint-debtors. Has a debtor, who has paid the whole debt, any right of contribution against his co-debtors 1 The answer must again be, that it depends entirely upon the agreement of the parties. The mere fact, however, that several debtors were bound in solidum, did not, in itself, create a presumption that the burden was to be divided in definite shares between them. In other words, the right of contribution rests not upon equity (as among co-sureties it does in English law), but, where it exists, upon contract. All that the joint-obligation implies, is the liability of each to the creditor for the whole debt ; and it establishes no presumption as to the manner in which those who are not com- pelled to pay, should assist the co-debtor that pays for all, although co-debtors were in substance reciprocal sureties {reos promittendi vice mutua fidejussorea). (D. 45, 2, 11, pr.) It must be remembered that debtors were aided by the pre- sumption of law, that an obligation of A., B. and C. to pay a given sum was divisible, and it was only when a clear intention to the contrary was proved, that A., or B. or C. could separatelj' be sued for the whole. Persons before accepting such a respon- sibility could arrange, that although the debt was to be in solidum, so far as the creditor was concerned, it should, as between themselves, be treated as divisible, in any proportions they might fix. Such an arrangement would be enforced by an actio mandati. But, if no such agreement existed, and the co-debtors were not partners, one who was called upon to pay the whole had no action against his co-debtors to compel them to contribute, especially when the joint-obligation was con- tracted by stipulatio. If, however, the co-debtors were co- sureties, the commonest case of all, the transaction itselt afforded a presumption that the intention of the co-debtors was to share the burden among themselves, although, for the better INVESTITIVE FACTS. 557 security of the creditor, they were each Hable to him for the whole. But, undoubtedly, that presumption was not considered sufficient to support an actio mandati, at the instance of the surety that paid the whole. The jurists, however, met the surety half way. He could resist an action brought against himself alone, unless the creditor first transferred to him his right to sue the other debtors (heneficium cedendarum actionum) (p. 578). Finally, if the surety required it, a creditor was compelled by a rescript of Hadrian to sue all the solvent co-sureties (p. 57.8). But if a surety paid voluntarily, or did not claim the benefit of the rescript, he had no claim against his co-sureties. (D. 46, 1, 39.) A fortiori, this was the rule when the co-debtors were not co- sureties, and when consequently no inference whatever could be drawn from the mere fact of a joint-obligation. But where the joint-obligation did not arise from stipulatio, the jurists showed a strong disposition to assist one of several co-promisers who was made to pay the whole. Thus, in tlie case of joint-sale or joint-hiring (D. 19, 2, 47), if one of the co- debtors were sued, he could resist payment unless the creditor first transferred to him his right of action against the other debtors. In the case of joint-mandate, even after one of the co-mandators had been sued and judgment given against him for the whole debt, he could require that the actions of the creditor against his co-mandators should be assigned to him. (D. 46, 1, 41, 1.) Sometimes, however, the nature of the contract created a strong presumption of the divisibility of the obliga- tion as between the co-debtors. Thus, if one sum of money were lent to two persons, so that each should be liable to the creditor for the whole, and one of them was obliged to pay the whole, he had an action against the other to compel him to contribute his share. In such a transaction the co-debtors were in substance sureties for each other as well as borrowers. (C. 8, 40, 2.) Investitive Facts. The presumption of law was against correal or joint-obliga- tion, but the question is one simply of the intention of the parties. (D. 45, 2, '9, pr.) Both in stipulating and in promising two or more may become parties. In stipulating, as when to the question put by all the promiser answers, " I undertake to " {spondeo). For instance, if two persons stipulate severally, and the promiser answers, " To both of you I undertake to give it." But if he 558 CORREALITY. had first undertaken to give it to Titius, and afterwards, when another asked him, had undertaken again, there would be two distinct obligations, and it would not be held that two parties joined in the stipulation. In promising again, two or more may become parties, as when after Titius puts the question, " Maevius, do you undertake to give five aurei ? " " Seius, do you undertake to give the same five aurei ? " each severally answers, " I under- take to." (J. 3, i6, pr.) In a written instrument it was stated that "'Gains and Titius stipulated for 100 aurei," but it was not said that they were joint-creditors (duo rei styoulandi). Each, then, is creditor for 50 aurei. (D. 45, 2, H, 1.) In another case it was written, " Julius Carpus has stipulated that so many aurei shall be given to him. We, Antoninus Achilleus and Cornelius Dius, have promised it." Dius and Achilleus each owe one-half of the aurei, because it is not added that they made a joint promise [singulos in solidum spopondisse), so as to bind each for the whole. (D. 45, 2, 11, 2.) Titius and Seius stipulate for 10 aurei, or Stichus, a slave of Titius. As Titius cannot stipulate for his own slave, the stipulation is good to him for 10 aurei only ; hut it is good to Seius for the alternative promise. As, therefore, the promises to Titius and Seius are not identical, they cannot be joint-creditors (correi). (D. 45, 2, 15.) Correality may exist in the contract of service [faciendi) as well as in contracts relating to property (dandi). Thus, a workman may promise to work for two employers, each of whom would be entitled to exact his service ; but performance to one discharged the obligation : or two workmen of equal parts or skill may pro- mise their services, one or other of them, to a single stipulator. (D. 45, 2, 5.) Sempronius deposits a slave in the custody of Gains and Maevius. Maevius agrees to guard the slave with the care of a good pater familias. Gains promises nothing. As the promises are not for the same thing, Gains and Maevius are not joint-debtors (correi). (D. 45, 2, 9, 1.) Titius and Seius request Maevius to lend 100 aurei to Sempronius. Sempronius fails to pay. Maevius can sue either Titius or Seius for the 100 aurei, as they are co-sureties. (D. 17, 1, 21.) A. requests B. and C. to act as his agents in the management of his business. B. or C. may be sued separately for the whole loss caused by the acts of either ; hut if one pays, the other is released. (D. 17, 1, 60, 2 ; D. 46, 1, 52, 3.) A. and B. deposit a bag of money with C, If the intention of the parties was that either A. or B. might sue for the whole {in solidum agere) they are correi credendi ; but if the intention was that each should be entitled to recover half, there is no correality, and one cannot sue for the whole. (D. 16, 3, 1, 44.) A. deposits a thing with B. and C. The presumption here is that both are liable in solidum. If B. is sued for the whole and pays, C. is released. If B., however, pays nothing, or only a part, A. can sue C. for the balance. If one has been guilty of dolu.s and not the other, the delinquent alone must be sued. If both are guilty of dolus, either may be sued, but payment of damages by one releases the other. (D. 16, 3, 1, 43.) A. deposits money in a sealed bag with B. A. dies leaving three heirs, C, D. and E. As has been pointed out, claims arising from contract are divided between the heirs. Therefore C, D. and E. together can sue for the bag ; but what happens if C. alone sues, seeing that the bag is sealed ? If the bag were not sealed, B. could easily pay C. his share. It was decided that the bag could be opened either in court or in presence of irreproachable witnesses, and C. 's share taken out ; and the bag must be re-sealed with the seals of the witnesses. But for this precaution, breaking the seals would have been a wilful idolo maZo) breach of contract. (D. 16, 3, 1, 36.) DIVESTITIVE FACTS. 559 A carriage is lent free {comTnodatum) or for payment {locatio conductio) to two persons. They are in one sense joint-debtors (quodammodo rei). If one is sued and pays for any damage, the other is released. (D. 13, 6, 5, 15.) Either can bring the actio furti if the carriage is stolen ; but if one sues, the claim of the other is extin- guished. (D. 13, 6, 6.) If the owner sues the one that did not bring the actio furti, he may be required to sue the one that did so, although only at the risk of the one that did not. (D. 13, 6, 7, pr.) Two Sureties bind themselves in solidum et partes viriles. Each is liable for the whole. But if they bind themselves in, solidum aut partem mrilem, each is liable only for his share, according to the general rule that when a man promises a, greater or a lesser sum, be is liable only for the lesser. (D. 46, 1, 51, pr.) It was not necessary, however, that the two correi should be made at the same moment. Thus a surety might be made between the first and the second debtor without preventing the debt from being joint. The interval must not, however, be great (D. 45, 2, 6, 3), as if a whole day intervened. (D. 45, ii, 12, pr.) Of two parties to a promise, one can bind himself simply, the other for a particular day or conditionally. The introduction of that day or that con- dition will be no hindrance to claiming performance from him that bound himself simply. (J..3, 16, 2.) So a creditor may accept a surety from one of two joint debtors, without also taking one from the other. (D. 45, 2, 6, 1.) Divestitive Facts. Performance or payment is the usual way of putting an end to a contract. If, therefore, one of several joint-debtors per- formed or paid, the others were released. There were, how- ever, other ways in which a contract might be terminated, besides performance or its equivalents, and some of the most difficult points in the law of correality arise with regard to these modes of extinguishing an obligation. They may be enumerated as follows : — confusio, prescription, capitis deminutio of creditor or debtor, acceptilatio, novatio, and litis contestatio. (See Subdivision II., Divestitive Facts.) Confusio in the case of one of the parties to a joint-obligation, did not afi"ect the obUgation. (D. 46, 1, 71 ; D. 34, 3, 3, 3.) In the same way, capitis deminutio of one of the parties did not extinguish the obhgation. (D. 45,2, 19.) But when any one of the several co-debtors paid part or made an acknowledg- ment of a debt, or did anything to break prescription, the obligation is kept alive as against all the parties to it. (C. 8, 40, 5.) Acceptilatio was a solemn acknowledgment of payment by 560 CORREALITY. a creditor, which he was not permitted to deny, even if no payment had actually taken place. It applied only to joint-stipulations. An acceptilatio by one of several creditors with a debtor, or by one of several debtors with a creditor, destroyed the rights of the co-creditors and extinguished the liability of the co-debtors. This was an incident, not of coi-reality, but of stipulation. Only verbal contracts could be put an end to by acceptilatio. Novatio resembles acceptilatio, and Venuleius argues that if one of two creditors can extinguish the joint debt by acceptilatio, why should he not be allowed to achieve the same result by novatio'? (D. 46, 2, 31, 1.) Novatio would appear to be in- cidental to joint-stipulations, rather than to joint-obligations. Thus, if several argentarii lent a sum of money to a debtor, one of them cannot by agreement with the debtor, or by novation, prejudice or affect the rights of the other argentarii. (D. 2, 14, 27,pr.) Their remains litis contestatio, the novation of a contract by obtaining a formula from the Preetor to recover the object of the contract before a judex. There appears to be no instance, among contracts, of the extinction of the joint-obligation by a litis contestatio with one of the parties, except stipulation. It is clear that in joint-obligations arising from mandate (D. 4(i, 1, 52, 3) deposit (D. 16, 3, 1, 43), commodatum or loaatio con- ductio (D. 13, 6, 5, 15), only performance or its equivalents, and not litis contestatio, put an end to the joint-obhgation. The liability of a correal or joint-obligation to be extinguished by litis contestatio is, like acceptilatio, an incident of stipulatio, and not of correality. Even in the case of stipulatio, the contract might be so framed as to avoid that inconvenient result.^ Finally, Justinian enacted that even in the case of stipulatio, a litis contestatio should have no effect upon the obligation (C. 8, 41, 20.) Justinian's constitution applies to co-debtors ; and there was no very strong reason for altering the law in the case of co-creditors. It was enough that the debtor should be liable to one suit. Thus we read, that if an action was begun by one co-creditor, the debtor could not release himself by tendering the amount to. the other creditor. (D. 45, 2, 16.) Each co-creditor was, in fact, considered to be a sole creditor, 1 Decern stipulatus a Titio, postea quanta minus ab co consequi posses, si a Maevio stipularls. (D. 45, 1, 116.) SOLIDARITY, 56 1 except for the circumstance that his rights might be affected by the acts of his co-creditors. (D. 46, 2, 31, 1.) COKEEALITT AND SOLIDAEITT. According to some writers, a distinction is to be drawn between solidarity {in soli- dum ohligari) and oorreality {duo rei stipulandi or promittendi). Tliis opinion is clearly stated by Mr Poste (Gaias, 2d edit., p. 396). " Oorreality and solidarity agree in this, that in both of them every creditor is severally entitled to receive the whole object of the active obligation, and every debtor is bound to discharge the whole object of the passive obligation ; but diiler in this, that whereas oorreality implies the unity or identity of the obligation by which the co-creditors are entitled or the co-debtors are bound ; solidarity implies that they are entitled or bound by a plurality or diversity of obligations." The consequence of this distinction is that in solidarity the right of action was not extinguished by anything except performance or its equivalents ; whereas oorreality was destroyed by litis contestatio, by the mere bringing of an action, whatever its result ; and also that in solidary obligations, a debtor that paid had a right of contribution against his co-debtors, whereas in correal obligations, notwith- standing the arguments of Savigny, there was no such right. Another writer, Mr Moyle (Inst. Just. I. 475,) puts the case shortly thus : "Every correal includes in it- self a solidary obligation. . . . but it differs in that there is not only one obligation — object, but only on£ obligation.''^ The conclusion to which a consideration of the texts has led the present writer is (1) that the alleged distinction is not tenable, and there is only one kind of joint- obligation in the law of contract ; (2) that the right of contribution {regressus) in the law of contract has nothing whatever to do with correality ; but where it exists arises from a separate and distinct contract, either express or implied ; (3) that ex- tinction of a correal obligation by litis amtestatio is an incident merely of stipulatio, and does not depend upon correality. 1. The jurists in several places affirm that there is not one obligation, but as many obligations as there are parties in correality. (D. 45, 2, 13 ; D. 46, 1, 5 ; D. 46, 3, 93, pr.) As we have seen, one of two correi might be bound conditionally, and the other unconditionally (D. 45, 2, 7), and it is very difficult to understand, if there be only one obligation, how that obligation can be at the same time both conditional and unconditional. Again, let us suppose that of two co-creditors {duo rei stiptdandi) Lucius Titius and Gaius, Gains dies, and Lucius Titus becomes his sole heir. Is the right of Titius merged in his right as heir ? The very question implies that there are two obligations, and we are told that there is no merger ; but the heir can sue in his own right (jwos Lucius Titius) ; or he can sue in his right as heir {qua heres Gaii). Scaevola points out that the difference is material. Suppose Titius had agreed not to sue the debtor for a given time. He. can now as heir sue him at once before the time elapses, if Gaius had not joined in the agreement. (D. 46, 3, 93, pr.) In the same way if one of two co-debtors succeeds the other as heir, he is bound by two obliga- tions {duas oMigationes eum sustinere dicemium est). (D. 45, 2, 13.) The reasoning by which this result was arrived at is sufficiently curious to deserve notice, for it involves, on the part at least of one of the jurists (Ulpian), an odd anticipation of the Leibnitian principle of the Sufficient Reason. Ulpian begins by observing that if a fidejussor becomes heir to the principal debtor, his obligation qua fidejussor is extinguished, and he can be sued only as principal debtor. (But see D. 46, 3, 95, 3.) He contrasts this with the case above mentioned of one reus succeeding to another reus. Why this difference ? Because the obligation of the principal is plenior, and the lesser obligation of the surety may well be swallowed up in the greater ; but in the case of corm the two obligations are of equal potency {duae ejusdcm sint poiestatis), and there is no reason why the one rather than the other should be merged. There- 2 N 5^2 CORREALITY. fore, if a co-creditor succeeds his co-creditor, he has the benefit of two obligationa [duae obligationes in unius persona concurrant)^. This conclusion lands TJlpian in a difficulty. If there are two obligations, why cannot the surviving creditor sue upon both ? The answer is characteristic, Because the nature of the two obligations is such that if one is sued upon, the other is extinguished. This is a somewhat meta- physical way of saying that however numerous the obligations, they have one common object, quia unum debitum, est (D. 2, 14, 9, pr.; D. 45, 2, 2), and, if that object is gained through one of the obligations, there is no necessity or room for the others. The absolute distinctness of the obligations of several correi in contrast with the identity of the object of the obligation is brought out in a passage from Ulpian. (D, 45, 2, 3, pr.) It appears that so distinct were the obligations held to be that if the promises were not simultaneous, some thought there could not be a true correal obligation, for the first would be merged (by rwvatio) in the last. Ulpian says nothing depends upon the simultaneity of the promises, but everything upon the intention of the parties. Accordingly, if their intention was that each correus should be bound, the first obligation is not merged, but both remain intact. (D. 45, 2, 3, pr.) 2. Extinction of the obligation by litis contestatio is not an incident of correality, but only of joint stipulations. It is clearly laid down by Papinian that correality may exist in deposit, commodatum, and other contracts. (D. 45, 2, 9, pr.) But in these cases the joint obligation was extinguished by performance only or its equivalents, and not by litis contestatio. (D. 16, 3, 1, 43 ; D. 13, 6, 5, 15.) Mandate was in the same position, and it was clear law that a litis contestatio with one of two joint mandators did not release the other mandators. (C. 8, 41, 20.) 3. "Solidarity," as the name of a distinct species of joint-obligation, is not felicit- ous. In solidum means " for the whole " of a given object, as distinguished from a part {pro parte, virilis pars). In this sense it is used very frequently in relation to obligations when there is only one creditor and one debtor. Solidarity, if an abstract word is to be coined from solidum, cannot conveniently be confined to joint-obligations. Moreover, instead of using in solidum in contrast to correi, the jurists commonly employ in solidum to designate a correal obligation. " Cum duo eandem pecuniam, aut pro- miserint, aut stipulati sunt, ipso jure et singuli in solidum debentur et singuli debent." (D. 45, 2, 2.) The context shows that Javolenus is speaking of what Mr Poste calls correality in contradistinction to solidarity. Again, Papinian says : " Eandem rem apud duos pariter deposui, utriusque fidem in solidum secutus, .... fiunt liuo rei promittendi." (I). 45, 2, 9, pr.) So in a constitution of Diocletian and Maximian we find the following test question : — " Exprimere debueras tuis precibus, utrumne in partem sm in solidum singuli vos obligaveritis, ac duo rei promittendi extiteiiiis." (C. 8, 40, 3.) It is singular, if in solidum be a proper contrast to correality, that the distinction should not have been known to the jurists ; but that, on the contrary, they should have used the phrases as equivalent to each other. Srtittr ^art. ACCESSOEY CONTEACTS. Suretyship is the counterpart of mortgage. The object of mortgage was to strengthen the weak point of rights in per- sonam by the addition of rights in rem; the object of surety- ship is the same, by giving the creditor an action against two persons instead of one. Suretyship, then, is the creation of dependent rights in personam ; that is, as security for other rights in personam,. But the early Roman law furnishes us with a different and unique species of accessory contract ; namely, the adstipulatio, by which a subsidiary creditor is added. First — Adstipula no. Definition. Although, as we have said, another person not subject to our power stipulates for us in vain, yet we can employ another person for that purpose, who must make the same stipulation as we do ; and him we commonly call an adstipulator. (G. 3, no, as restored.) Under the system of ancient procedure, called Legis Actianes, no one could sue except the creditor himself in person. Agents could not be employed until the formulary procedure was introduced. But the ingenuity of the lawyers opened a way of escape from this inconvenience. A person was added in the stipulation, to whom, as well as to the stipulator, the promise was made ; and who, therefore, had a right to sue without the concurrence of the stipulator. The adstipulator was thus practically »■ procurator, agent, or attorney, with this great drawback, however, that he was appointed not at the time the action was brought, but at the making of the contract. In the time of Gains, procurators were allowed, and the chief reason for adstipulatio had ceased. But another still existed. An adstipulator is usually employed only when we are stipulating that something is to be given after our death. A stipulation by us is in that case idle, and therefore an adstipulator is employed to act after our death. All he obtains he is bound to restore to our heir, and he may be forced to by the actio mandati. (G. 3, 117.) A man could not make a promise to take effect after his death, because that would virtually have been to make himself agent for his heirs ; and it was a stringent rule of the jus eivUe that one freeman could not represent another in any legal transaction. This rule was evaded by adding an adstipulator, who, if he survived the stipulator, could sue on the promise. In the time of Justinian, as will appear further on, a man might make a contract to take effect after his death ; and thus the sole remaining reason for the adstipulatio was taken away. Justinian does not refer to adstipulatio. 5^4 accessory contracts. Rights and Duties. A. Duty of the Promiser (reus promittendi) to the Adstipulator. On demand by the adstipulator, without the concurrence of the stipulator, the promiser must perform his promise ; but such performance at the same time releases him from his obhgation towards the stipulator. B. Duties of the Adstipulator to the Stipulator, I. By him too, just as by us, an action may be brought and payment may be rightly made to him as well as to us. But all he obtains he will be forced to restore to us by the acizo mandati. (G. 3, in.) II. The adstipulator ought not to release the promiser {reus promittendi) gratuitously. The adstipulator had precisely the same power as the stipulator to discharge the promiser ; and if he did so gratuitously, the stipulator would be deprived of the benefit of the contract. By the second chapter (of the lex Aquilia) an action may be brought against an adstipulator that has defrauded the stipulator by entering the money as paid, for the value of the property. (G. 3, 215.) In that part of the statute the action is brought in evidently as an action on account of damage. But that provision was unnecessary, since the actio mandati was enough for the purpose, — unless, indeed, that by that statute an action for double the amount is given against a man that denies liability. (G. 3, 216.) Investitive Facts. The adstipulator must stipulate for the same thing as the stipulator, and from the same person. But the adstipulator can use other words as well, and not those we use. If, for instance, I have stipulated in these words, " Do you undertake that it shall be given ? " then he can make the further stipulation thus, " Do you pledge your credit?" or, " Do you become surety for the same?" or vice versa. (G. 3, 112.) Again, he can stipulate for less, but not for more. Therefore if I stipulate for ten sestertii, he can stipulate for five ; but not for more than ten. And if I stipulate simply, he may stipulate conditionally ; but not vice versa. Less and more must be understood not only of amount but of time ; for to give anything at once is to give more, but after a time less. (G. 3, 113.) Remedies. A. To enforce Duties of Promiser. I. Oondictio certi and actio ex stipidatu. In this branch of law there are some peculiar rules ; for the heir to an adstipulator has no right of action. (G. 3, 114.) The object of the stipulatm- — namely, to secure a particular individual as agent would have been completely frustrated if the rights of the adstipulator had been transferred to his heir or other persons SURETIES. 565 B. To enforce Duties of Adstipulator. I. Actio mandati. (6. 3, 216.) II. Actio legis Aquiliae, with penalty of double if the gratuitous release were denied. (G. 3, 216.) Second — Sureties. First Case — WHEN THERE IS ONLY OnE SURETY. The most general term in the Roman law for the substitution or addition of a new debtor is inter cessio. (Nov. 4, 1 ; C. 8, 41, 19.) When the original debtor is released, and the new debtor takes his place, the name is expromissio. This will be considered under the head of Transvestitive Facts. If the original debtor continues bound as well as the new debtor, the contract of suretyship exists (adpromissio). (D. 13, 5, 28.) The Roman law possessed no fewer than five different forms of contracts of suretyship ; some of these are named by Gains, one by Justinian. For the promiser also others usually bind themselves. They are called sureties [sponsores, fidepromissores\ Jidejussores ; and creditors usually re- ceive them in their anxiety to secure themselves more carefully. (J. 3, 20, pr. ; G. 3, 115, 117.) To these must be added mandatum, and the pactum de con- stituto. The three forms mentioned by Gains are made by stipulation. Probably these forms represent successive stages ; sponsio, the earliest of all, is confined to Roman citizens ; the Jidepromissio is like the sponsio, but available for aliens (pere- grini) ; and the fidejussio seems to be latest, as it was not dealt with by the early statutes affecting sureties. Definition. I. Sponsio is a contract of suretyship by stipulation. It can be attached only to a verbal contract, and can be made by Roman citizens only. (G. 3, 93.) II. Fidepromissio is a contract of suretyship by stipulation. It can be attached only to a verbal contract. It may be made by an alien. (G. 3, 93.) The sponsor and fidepromissor axe in much the same position ; but the position of the ^fidejussor is very unlike theirs. (G. 3, 118.) For they can join in no obligations that are not verbal, though sometimes the principal that promised is not bound himself, as vi^hen a woman or a pupillus acts vifithout authority from the tutor, or when anyone promises that something shall be given after his death. It is a question, however, whether when a slave or an alien has undertaken {spoponderit) to do some- thino', a sponsor or fidepromissor can bind himself on his behalf. (G. 3, 119.) III. Fidejussio is a contract ot suretyship by stipulation. It 566 ACCESSORY CONTRACTS. may be attached to any contract or obligatio, whether civil or only natural. '2>\x'!. fidejussores may be taken in as parties to every obligation, whether contracted re, by words, by writing, or by consent. Nor does it matter whether the obligation is part of the jus civile or of the jus naturale. So entirely is this the case that a man can bind himself on behalf of a slave^ whether it is an outsider that accepts him from the slave as Jidejussor., or the slave's master for what is naturally due to him. (J. 3, 20, i ; G. 3, 119.) This extensive application of fidejussio distinguishes it broadly from sponsio and fidepromissio and puts it on the same footing as pigims or hypotheca. A civil contract or obligation, within the meaning of the Institutes, is any contract or delict upon which an action may be brought. A natural obligation (iw,turalis obligatio) has been already defined. IV. Mandatum. — When A. at the request of B. lends money to C, the Roman law imposed on B. an obligation to save A. harmless from all loss sustained by the default of C. to repay the money. B. is surety {mandator), A. is creditor (mandatarius), and C. the principal debtor. Two peculiarities distinguish this case iiom. Jidejussio. 1. After the fidejussor has given his word, he is absolutely bound, and cannot be released without the consent of the creditor. After B. has requested A. to lend money to C, B. can at any time withdraw before A. has actually advanced the money. A. has no claim for indemnity against B. until he has executed the mandate. 2. A Jidejussio could be made at any time after the obligation to which it was attached (D. 46, 1, 6, pr.) ; a mandate must necessarily precede the contract to which it is really subsidiary. Thus, if A., without the request of B., had lent money to C, and B. afterwards said he would answer for any loss, A. would have no action against B. A man cannot give an authority to do that which is already done. If, however, in the same circum- stances, B. by stipulation promised to answer for C, B. would be a, fidejussor, and would be compelled to make good the loan. V. Pactum de constitute, Constituta Pecunia. Actions in personam, too, have been put forth by the Praetor in the exercise of his jurisdiction ; as, for instance, that de pecunia constituta, which the receptitia closely resembled. But by a constitution of ours, all the advantages of the latter have been transferred to the former ; and the latter having thus become superfluous, has by our orders disappeared with all its influence from our statutes. (J. 4, 6, 8.) The actio de pecunia constituta may be brought against anyone that has engaged to pay money, either for himself or for another, without any stipula- tion coming in. For if not — that is, if he has promised to a stipulator — he is liable under "Cos. jus civile. (J. 4, 6, 9.) SURETIES. 567 TheophiKis, in his Commentary on the above passages, gives the following account of the introduction of this Praetorian Pact. Suppose A. owes B. 100 aurei, and is sued by B. for the amount. The proceedings go on until the parties leave the Praetor's Court (litis contestatio) ; but before going to trial by the judex, A. admits B.'s claim, and promises, if he will ilot further press the suit, to pay him the amount by a day named. The effect of withdrawing at this stage was that the original demand was extinguished. When the day arrives, A. refuses to pay. What is B.'s remedy ? If there had been a stipulation, B. would have htid an action ; but as it is, he is left without remedy. This is in consequence of his own liberality and A.'s want Of faith (quorliam grave est fidem fallere). (D, 13, 5, 1, pr.) A stronger case for dispensing with the form of stipulation could scarcely be conceived. Accordingly, before the time of Cicero, the Praetor introduced the remedy by the actio de pecunia constitute. Prior to Justinian, the pactum de tonstituto, as a mode of constituting suretyship, laboured under several disadvantages that may be tttlced to its origin. It was con- fined to promises respecting fungible things^-that is, things dealt with by number, weight, or measure. At first also it appears that the obligation concerning which the pact was made must be actually vested ; that is to say, it must not be conditional or suspended for a time (s«6 condi(i(me or TO diem). (C. 4, 18, 2, pr.) A day also must have been originally named for payment, but Paul held that if no time were fixed, ten days' grace should be allowed before an action could be brought. (D. 13, 5, 21, 1.) Lastly, in many cases the action must be brought within a year. Justinian fused, as he states in the test, the actio de pecunia Constitutct and the actio receptition The latter was the remedy for an ancient contract, couched in certain formal terms {solemnibus verbis composita), and confined exclusively to contracts with bankers [argentarii). It could be brought against a banker when he had promised to pay a sum on behalf of a customer on a day named. (Theoph. Inst, i, 6, 8.) This contract was not confined to fungible things, but was as extensive as stipulation. Justinian abolished this special action, and gave against the banker the ordinary actio de constituta pecunia as amended by him. His alterations had the effect of putting the pactum de constituto on as wide a basis as fidejussio or tnandatum as a mode of appointing sureties. There must be a prior debt, but it may be a natural obligation only (D, 13, 5, 1, 6 ; D. 13, 5, 1, 7), and the promise nlay refer to anything that could be the object of a, stipulation. (C. 4, IS, 2, pr. ) The short term of prescrip- tion was entirely taken away. The pactum de constituto may now be defined as a promise made by anyone to discharge an existing obligation of another on a day named, or to give security for its fulfilment. (D. 13, 5, 28 : D. 13, 5, 21, 2.) In what respect, then, does this informal agreement (pact) differ from the stipulation {fidc' jussio) ? Both fidejussio and constiiutum are accessory to an existing obligation, and in this respect are both contrasted with mandatum. In form the difference between them is simply that one is made by interrogation of the surety, the other without. Apparently, then, the only distinction is that fidejussio contemplated as possible an immediate liability of the surety ; whereas the pactum de constituto postponed the liabihty of the surety to a future day. This difference, apparently trivial, rests upon a sound basis. In fidejussio there need be no valuable consideration : but in the pact there was a con- 568 ACCESSORY CONTRACTS. sideration — namely, the forbearance of the creditor to sue; for the essence of the contract was to give time to the debtor. If this be the true account of the difference hetween Jidejussio and the pactum de constituto, it throws light on a somewhat remarkable rule. It was held that if, through some formal defect, a, Jidejussio failed, it was not to be construed as a pactum de constituto ; for, says the Jurist, the intention of the parties was to make the stipulation, not the pact (quoniam non animo constituentis sed promittentis factum est). (D. 13, 5, 1, 4.) In itself this declaration would not be strange, but the peculiarity of it appears when it is compared with the analogous case of formal and informal release. The formal release by stipulation {Accep- tilatid) stood in the same relation to a simple pact of release {pactum de non petendo), that Jidejussio did to the simple pact of suretyship. Now it was held that if an acceptilatio should fail through some formal defect, it should be construed as an agree- ment not to sue. (D. 2, 14, 27, 9.) A release did not require to be supported by any consideration. If, however, we suppose that a consideration was necessary to support a contract of suretyship, the different decision in the case of Jidejussio would be explained. If a person intended to bind himself by a form that dispensed with the necessity for a consideration, and the stipiilation was ineffective, he could not be bound because there happened accidentally to be a consideration. Thus an ineffective Jidejussio was not held to be an effective pactum de constituto. Rights and Duties. A. Duty of Surety to Creditor. 1. To pay in default of the principal debtor. Benejicium ordinis seu esecussionis. The true idea of an accessory contract is that it is enforced only in default of the principal contract. If the surety is liable to pay before the principal has made default, he is scarcely a surety ; he is rather a co-promiser. According to the ancient law, Justinian tells us (Nov. 4, 1), if a creditor accepted a surety he was required to proceed first against the principal debtor. If, however, the creditor failed to recover in whole or in part from the principal debtor, he could then sue the surety. A somewhat harsh straining of this rule deprived the creditor of his remedy against the surety, when the principal debtor was SURETIES. 569 beyond the jurisdiction, and incapable of being sued. Papinian seems to have helped to change the rule, and we find from the constitutions of Antoninus Pius and Diocletian and Maximian that it was not necessary to proceed against the principal debtor in the first instance, but the creditor could sue which- ever he pleased, the principal or surety. (C. 8, 41, 5 ; C. 8, 41, 19.) Justinian, in the Novel qiioted above, restored the ancient rule, freeing it, however, from its narrowness. He enacted that when both principal and surety were within the same jurisdiction, the surety should in no case be called upon to pay unless the principal debtor had been first sued, or had made default. If the principal debtor was beyond the jurisdic- tion, the surety could be sued, but he might petition the judge for time to produce the principal debtor. If he succeeded in producing the principal, he was meanwhile released from the suit ; but if, after the time granted by the judge, he did not, he must discharge the obligation himself. (Nov. 4, 1.) Justinian afterwards introduced an exception for the convenient trans- action of business, and allowed bankers (argeidarii), at their option, to sue the surety without first suing the principal. (Nov. 136, 1.) It was also the rule, as stated by Papinian, that when the creditor had rights in rem in security (pignora, hypothecae), he was not obliged to reaUse their value before suing the surety. (D. 46, 1, 51, 3 ; D. 46, 1, 62.) Even if the creditor sold the pledges, and was afterwards obHged to give up the price because of the eviction of the purchaser, he had his remedy against the surety. (D. 17, 1, 59, 4.) But if the agreement were that the surety should answer only for the deficiency after the sale of the pledges, he could not be sued first. (C. 8, 41, 17.) B. Duty of Creditor to Surety. If a surety is compelled to pay the debt of the principal, the creditor must surrender to him all the rights in rem {pignora, hypothecae) that he has over property belonging to the debtor or others in respect of the debt. (C. 8, 41, 21 ; D. 49, 14, 45, 9.) If, however, the creditor holds those rights in rem in security for other debts as well, he cannot be compelled to surrender them until all the debts are discharged. (C. 8', 41, 2.) 0. Duty of Debtor to Surety. In this respect also, all are on the same footing, — that if anyone pays for his principal, he can recover his money from him by the actio mandati. 570 ACCESSORY CONTRACTS. Spmsores have this further advantage under the lex Publilia (B.C. 383), that they have an action for double the amount peculiar to themselves, and called depensi. (G. 3, 127.) If the debtor pays the creditor, it is his duty to inform the surety. If he does not, and the surety also pays, he must indemnify the surety. (D. 17, 1, 29, 2.) If the surety pays first, and does not inform the debtor, and the debtor pays, the (Ktio mandati will not lie, but the debtor must cede to the surety his right to recover the money from the creditor. (D. 17, 1, 29, 3.) Investitive Facts. I. A surety binds himself to answer for the debt of another. The consent or knowledge of the debtor is unnecessary. (D. 46, 1,30; D. 13, 5, 27.) If A. asserts not that he will pay B.'s debt on a particular day, but that B. will do so, A. is not bound as surety. (D. 13, 5, 6, 4 ; D. 46, 1, 65.) Lucius Titius, a debtor of the Seii, died. The Seii persuaded Publius Maevius, the nephew of Titius, that he was his uncle's heir, and therefore bound to pay his uncle's debts. They procured from him a letter acknowledging that he was heir, and that he owed the money in question. Maevius was not heir. It was held that his letter did not amount to a pactum de constitute, because Maevius intended not to answer for another, but to answer for himself, and he himself owed nothing. (D. 13, 5, 31.) II. Modes of constituting sureties. Sponsio, Fidepromissio, Fidejussiot To a sponsor the question is put thus-^Do you undertake that the same shall be given ? to a.Jidepromissor — Do you pledge your credit to the same ? to a fidejussor — Do you become surety for the same .■■ But we shall see what is the proper name for those to whom the question is put thus — Will you give the same ? Do you promise the same ? Will you do the same ? (G.3, 116.) When Greek is used, a. fidejussor is generally accepted by his saying, On my honour I bid you, I say it, I will do it, or I desire it. But whichever Greek word he uses for " I say," it makes no difference. (J. 3, 20, 7.) Afidejussor may come in either before or after the obligation is entered into. (J. 3, 20, 3.) In stipulations by fidejussores we must know that it is a received prin- ciple that whatever the writing bears on its face as done, must be held to have been done. It is agreed, therefore, that if a man writes himself down as fidejussor, all the formalities will be held to have been duly observed. (J- 3, 2°. 8.) Mandatum. — A person made himself surety by requesting another to advance money to a third party, if that other lent the money. " Lend the money at my risTj " is a mandate. (D. 17, 1, 12, 13.) Pactum de Constituto. — As the name {pactum) indicates, nothing more was necessary than an expression of intention. SURETIES. 571 Titius wrote to Maevius as followa : — "I have written that in terms of the mandate of Seius, I will give security, and pay without dispute whatever sum is proved to be due to you." Titius is a surety. (D. 13, 5, 5, 3.) One wrote to a lender in these terms :— " The 10 aurei that Lucius Titius borrowed from you, I shall pay you with the proper interest," This is a binding contract. (D. 13, 5, 26.) Satis tihi facio, I will give you security. This binds me. Fkt tiii satis ame et ab Hlo et iUo, " So-and-so and myself will give you security." Does not bind So-and-so, and binds me only in one-third. Fiet tiM satis a me aut ab Hlo et iUo, " So-and-so or I will give you security." Binds me to pay all. Fiet tibi satis, Let security be given you. This binds no one. (Nov. 115, 6.) III. Restrictions. 1. The accessory contract must be of the same nature, in some cases, as the principal. A. lent 10 aurei to B., and C became ^deJMSsoi- for 1000 pecks of wheat. C. is not bound, because he promises wheat, while his principal (B.) owes money. (D. 46, 1,42.) A. lends 100 aurei to B., and C. " constitutes " for grain of equal value. This is good, as pecunia constitwta differs iTora fidejussio. (D. 13, 5, 1, 5.) A. lends money to B., and C. promises to give a pledge in security. This binds C. to give the pledge. (D. 13, 5, 14, 1.) 2. The accessory contract, as a rule, must not be for more than the principal contract, but it may be for less. [In one respect the legal position of all is the same, — that all alike, spon- sores, fidepromissores and] fidejussores^ cannot bind themselves for a debt greater than that of the principal for whom they are bound. For their obligation is [like that of the adstipulator\ only accessory to the principal obligation ; and there cannot be more in the accessory than there is in the principal. But, on the contrary, they can bind themselves for a less debt. Therefore if the principal promises ten aurei, the fidejussor may rightly bind himself for five ; but not vice versa. Again, if the principal makes a simple promise, th^ fidejussor may promise conditionally ; but not vice versa. And more or less must be understood to apply not only to amount but to time. For to give anything at once is to give more, but after a time less. (J. 3, 20, 5 ; G. 3, 126.) This rule was construed more strictly in fidejussio than in pactum de constituto. A. is bound to give B. a farm. 0. may be surety for the delivery only of a usufruct, that being, in one sense, part of the ownership. (D. 46, 1, 70, 2.) A. owes 100 a«m to B. C. " constitutes " for 200. C. is bound only for 100. (D. 13, 5, 11, 1.) A. owes 10 aiH'«i to B. C. " constitutes " for the same amount and interest. The contract will not hold for the interest. (D. 13, 5, 11, 1 ; D. 13, 5, 24.) A. owes 10 aurei to B. C. pledges his word (fidejussor) for the 10 aurei to be paid at Ephesus. This is bad, because C.'s position is harder than A.'s. (D. 46, 1, 16, 1.) 572 ACCESSORY CONTRACTS, A. owes 10 aurei to B. C. " constitutes " to pay it at Ephesus, or on the Ides of March. This is good. (D. 13, 5, 16, 1.) A debtor has promised to pay me ; his surety (fidejussor) to pay me or Titius. The contract is binding, because it is easier for the surety ; he has the alternative of paying Titius, and therefore a chance of being released by him. But if the debtor promises to pay me or Titius, and the surety to pay me only, the contract of the surety is more onerous. (D. 46, 1, 34.) A. promises the slave Stichus to B. C. becomes surety {fidejussor) for Stichus or 10 aurei. This is bad, either because C.'s promise is harder than A.'s, or is of a different nature. (D. 46, 1, 8, 8.) A. promises Stichus or 10 aurei to B. C. promises (by stipulation) Stichus or 10 aurei, whichever B. shall choose. This is bad, because the principal obligation leaves the option with the promiser, the accessory with the promisee. (D. 46, 1, 8, 9.) A. promises Stichus or 10 aurei to B., in the option of B, C. promises Stichus or 10 aurei (by stipulation) in his own option. He is bound, because his contract is less onerous than A.'s. (D. 46, 1, 8, 10.) A. promises Stichus or Pamphilus to B., in A.'s option. C. promises the same by stipulation, in his own (C.'s) option. This is equally easy for C. and A. ; but as C. may choose to give Stichus, and A. to give Pamphilus, there is no certainty that they will give the same object, and so the suretyship falls through, in consequence of the rule that the accessory contract must be for the same thing in fidejussio as in the principal contract. 3. A special restriction applicable to sureties by stipulation was introduced by the lex Cornelia (B.C. 81, but see p. 64). It seems not to have applied to mandate or pecunia constituta. But the benefit of the lex Cornelia is shared by all alike. That statute forbids the same person to bind himself for the same debtor to the same creditor in the same year for any amount of money lent exceeding twenty thousand sestertii. And although a sponsor or fidepromissor (or fidejussor) should bind himself for a greater sum, say one hundred thousand, he is con- demned to pay only twenty. By money lent {pecunia creditd) we mean not only that directly given on loan, but all that at the time the obligation is contracted is certain to become due ; that is, for which the debtor has come to be bound unconditionally. And so money that we stipulate shall be paid on a fixed day, is reckoned therewith ; for it is certain that it will fall due, although it is only after a time that it can be demanded. Further, the name money in that statute embraces property of every kind ; if, therefore, we stipulate for wine or corn, or land, or a slave, this statute must be ob- served. But there are certain cases in which the law allows unlimited suretyship — on account of dowry, for instance, or of money due to you under a will, or when sureties are taken by order of a judex. Besides, the statute levying a duty of five per cent, on inheritances provides that to the surety- ships put forth under that statute the lex Cornelia shall not apply. (G. 3, 124-125.) 4. A restriction specially bearing on suretyship, although of wider extent, is derived from the Senatus Consultum Velleianum, In the time of Augustus and Claudius, enactments had been made preventing wives incurring obligations for their husbands. (D. Ifi, 1, 2, pr.) Afterwards, but not later than the time of SURETIES. 573 Vespasian, the Senatus Consultum in question was passed in the consulship of Marcus Silanus and Velleius Tutor. (D. 16, 1, 2, 1.) The policy of the enactment is thus stated by Paul. Custom refuses to women not only offices of state (publica munera), but business duties (civilia officio), that is, which imply their going into the company of men, away from their own homes. It was, therefore, fit that they should be prohibited from undertaking business responsibilities and exposing their property to danger. (D. 16, 1, 1, 1.) The Senatus Consultum, with this object in view, was made sweeping. It forbad every woman to make any contract (D. 16, 1, 2, 4), or give any of her property as security (D. 6, 1, 40 ; D. 16, 1, 32, 1) on behalf of any person (husband, son, or father) (D. 16, 1, 2, 5), to any creditor. (D. 16, 1, 27, 1.) Eicceptions. — To thia at first no exception was allowed, except where the creditor was deceived. Thus a. husband pledged his wife's goods, with her knowledge. The creditor did not know that the goods belonged to the wife. She cannot plead the defence of the Act. (C. 4, 29, 5.) Justinian allowed a few other exceptions ; as when a woman promised a dowry {dos) (C. 4, 29, 25) ; or when a woman became a surety for the manumission of a slave, and the slave was manumitted (C. 4, 2^ 24) ; or when the woman received a consideration {aZiquid accipiens) (C. 4, 29, 23) ; or when after two years she renewed her obligation. (C. 4, 29, 22.) But in no case was she to bind herseK for her husband (Nov. 134, 8), in conformity with the general rule that gifts were prohibited between husband and wife. An intercessio by a woman was treated as wholly and absolutely void. If a woman gave part of her property in pledge, and the creditor sold it to a person ignorant of the violation of the law, the woman could reclaim it after the sale. (D. 16, 1, 32, 1 ; D. 6, 1, 39, 1.) Her heirs and sureties were no more bound than herself (C. 4, 29, 20) ; and if as surety she paid without compulsion, she could afterwards recover it as money not due. (D. 16, 1, 8, 9.) Intercessio includes any contract or pledge that a woman undertakes on behalf of another, whether that other person remains bound or not ; in other words, whether she becomes surety (adpromissor), or a substitute (expromissor) for the debtor. (D. 16, ],8, 8.) A woman pays a debt due by B. to C This is not void, because it is a gift, and she does not herself become subjected to any obligation. (D. 16, 1, 4, 1. ) A., a woman, in order to release B. from a debt that he owes to C, offers C, in substitution for B., her own debtor D. This also is good, because the woman does not thereby bind herself for B. (D. 16, 1, 8, 5). A., a mother, persuaded B., the tutor of her child C, to allow her to manage C.'s property, and to indemnify B. gave him sureties and pledges. Here A. bound herself 574 ACCESSORY CONTRACTS. to B., but it was not for the debt of another, it was, in a sense, for her own projects. The sureties and pledges are, therefore, good. (C. 4, 29, 6 ; Paul, Sent. 2, 11, 2.) The tutor of a pupil died, leaving Titius his heir. Titius hesitated to enter on the inheritance, and so make himself responsible for the suspected maladministration of the tutor. The mother of the pupil, to induce him to enter, promised by stipulation to save him harmless. Titius entered, and was compelled to pay a sum to the pupil, which he endeavoured to recover in an action against the mother of the pupil. In this case Titius was creditor, the mother was his debtor. If she was a debtor on behalf of anyone else, who was that person ? Not the tutor, because he was dead. Then it could only be Titius. But how could a distinction be made between the man Titius and the heir Titius ? Could the man Titius be creditor, and the heir Titius be the principal debtor, for whom the mother intervened ? That seemed absurd, and accordingly Titius was entitled to the indemnity. (D. 16, 1, 19, pr.) If in this case Titius had refused to enter, not because he suspected that the tutor had incurred liabilities, but because he doubted the solvency of the tutor's debtors, then the woman would not be bound, because she would be in effect making herself surety for the debtors of the inheritance. (D. 16, 1, 19, 4 ; D. 16, 1, 19. 2.) A Praetorian died leaving two sons, one aged seven, the other his statutory tutor (legiti- mus tutor). At the request of the wife of the deceased, the mother of the pupil, the tutor entered on his father's inheritance, but did not give his authority to enable his brother also to enter. In consequence of this the pupil sustained a loss of 1000 aurei, which he recovered in an action against his brother. Could the brother sue the mother on her mandate ? Yes, said Julian. Here, again, the liability of the mother was undertaken for her own projects, and not on behalf of any third person. (D. 16, 1, 19, 1.) If a woman herself entered on an inheritance with the distinct object of paying the creditors of the inheritance in full, she could not defend herself under the Senatus Consultum. She had resolved rather to alienate her property than bind herself, (D. 16, 1, 32, pr.) A., a woman, instead of becoming surety for C, gave B. a, mandate to become surety. A. is thus a surety of a surety. If the creditor did not know that B. had a mandate from A., he can sue B., and E. cannot sue A., but if he knew, he cannot sue B. (D. 16, 1, 32, 3.) A., a woman, who really intends to become surety for B. to C. in respect of a loan, herself borrows from C. and hands over the money to B., who appears merely as her surety. If the creditor C. does not know the object of the loan, he is not deprived of his remedy. (D. 16, 1, 11-12 ; D. 16, 1, 19, 5). 5. Another restraint was in the case of dowries. In A.D. 381, Cratian, Valentinian, and Theodosius introduced a rule, subse- quently extended by Justinian, to the effect that neither the husband, nor his father, nor any one receiving a dowry, should be required or permitted to give any sureties for the restitution of the dowry. For, says Justinian, if the woman can intrust herself and her dowry to her husband, why should a surety be required, thus introducing an element of distrust and discord into the family? (C. 5, 20, 1 ; C. 5, 20, 2.) Divestitive Facts. How far did the extinction of the principal obligation release the surety, or the release of the surety extinguish the obliga- SURETIES. 575 tion of tlie principal debtor? The answer varies to some extent with the form of contract. 1. Formal contract of suretyship (spmisio, Jidepromissio, fide- jussio). It has been already stated that there was a distinction in the Roman law between a formal release and an agreement not to sue {pactum de non petendo). (See further, Subdiv. II., Divest. Facts.) If the principal obligation were extinguished by its appropriate divestitive fact, the surety was at once released. (D. 46, 1, 60 ; D. 46, 1, 68, 2 ; Paul, Sent. 2, 17, 15.) But if the proper divestitive fact were not employed, and the creditor had informally agreed not to sue, it depended altogether on the intention of the creditor whether the surety would be released. Unless a contrary intention was indicated, an agreement not to sue the principal debtor was construed as an agreement not to sue the surety ; because if the surety were obliged to pay, he could compel the debtor to indemnify him, and thus the debtor would gain nothing by the release. (D. 2, 14, 21, 5.) But if it were specially agreed that the debtor alone should not be sued, the creditor still had his remedy against the surety. (D. 2, 14, 22.) An inconvenience of a similar character occurred to the prejudice of the creditor. When a creditor sued the principal debtor, or the surety, and went so far in the proceedings as to obtain a formula from the Pr^tor, it was held that the obliga- tion upon which the action was brought was extinguished, and that a new one was created by the formula. (Paul, Sent. 2, 17, 15 (16) ). The surety was thus released, even if the creditor, after obtaining judgment, failed to recover his money from the debtor. Justinian altered this rule, and allowed the creditor, in the case stated, to sue the surety, and recover from him the balance of the debt. (C. 8, 41, 28.) 2. Mandate. When suretyship was contracted by mandate, the technical difBculty arising from the forms of extinguishing obligations did not exist. Titius requests Gains to give a loan to Maevius of 100 aurei. Gaius advances the money. Gaius afterwards sues Maevius and recovers 50 aurei. Can he sue Titius for the balance 1 That he should be able to do so is the very essence and object of the contract. Nothing relieves Titius except the repayment of the whole 100 aurd by Maevius. (D. 17, 1, 27, 5 ; D. 46, 1, 13.) 3. Constitutum. — When one person agreed to answer for an- other, that other remained bound. (D. 13, 5, 28.) If the 57^ ACCESSORY CONTRACTS. surety {qui constituit) were Bued, it was held that the principal ■was not released except to the extent to which the debt was actually paid. We are at the same time told that anciently it was a moot point whether the action against the surety took away the obligation of the principal debtor. (D. 13, 5, 18, 3.) Remedies. A. By Creditor against Surety. If the suretyship were formal, the surety was sued upon his stipulation ; if by mandate, then by the actio mandati ; and if by constitutum, by the actio de pecunia constituta. 1. Generally, what would be a defence if the principal debtor were sued, was a defence for the surety. The exceptiones, moreover, by which the debtor defends himself, are for the most part usually allowed to \i\^ fidejussores too. And rightly ; for what is demanded from them is demanded from the debtor himself, seeing he may be forced by an actio mandati to give them back what they have paid for him. If, therefore, a creditor agrees with his debtor not to demand the money, it is held that to the aid of the exceptzo pacti conventi those too may have recourse that are bound for the debtor, just as if the agreement had been made with them that the money should not be demanded from them. Some exceptiones, however, assuredly, are not usually allowed them. For example, if a debtor yields up all his goods, and his creditor thereafter takes proceedings against him, he defends himself by the exceptio nisi bonis CESSERIT. But this exceptio is not granted to fidejussores j simply because the creditor in binding others for the debtor has this chiefly in view, that after the debtor fails and loses all his means, he may be able to obtain from those that he has bound for the debtor what is his. (J. 4, 14, 4.) 2. [Moreover, the heir of a sponsor ox fidepromissor is not bound, unless we are asking about an aWe.n Jidepro?mssor in whose State another law is in use.] But not only is the fidejussor himself under obligation : he leaves his heir bound too. (J. 3, 20, 2 ; G. 3, 120.) Inmandatum and constitutum the heir of the surety also is bound. (D. 13, 5, 18, 2 ; C. 4, 18, 1.) 3. Prescription. Again, a sponsor and z.fidepromissor are, by the lex Furia, freed after two years. (G. 3, 121.) Until the change effected by Justinian, the aciio dc constituta pecunia could not be brought after a year. (C. 4, 18, 2, pr.) B. By Surety against the Principal Debtor. 1. For sponsored the lex PvhlUia allowed the actio depensi for double the sum paid. (G. 3, 127.) 2. li a. fidejussor has paid anything for a debtor, he has, to recover it, an actio mandati against him. (J. 3, 20, 6.) This applies also to fldepromissores and sponsores, and to constitutum,. 3. In Mandate. The mandator must procure a transfer from the creditor (manda- tarius) of his action against the principal debtor ; and thus the mandator can sue as the agent of the creditor {procurator in rem suam). (D. 46, 1, 41, 1.) CO-SURETIES, Second Case — Co-SURETrES. Eights and Duties, 577 A, In the case of Sponsores and Fidepromissores. I, Duty of each surety to the creditor. When several persons became sureties for the same debt, each was liable to pay the whole (in solidum obligatur). But for Italy, in B,0. 95 (p. 63), the lex Furla (de sponsu) provided an awkward remedy. When the money can be demanded, the obligation is divided into as many parts as there are sponsores ax fidepromissores at the time, and each is ordered to pay his share. (G. 3, 121.) This was an effectual protection to the surety, but at the cost of diminishing the security of the creditor ; and as the security of the creditor was the sole purpose of the suretyship, the Ux Fwia was not a success, II, Duty of surety to his co-sureties. When one surety paid, were the others bound to contribute ? In Italy, after the lex Furia this point could not arise, because no surety was bound to pay more than his own fraction of the debt ; but in Italy, before that statute, and in the provinces afterwards, the necessity for contribution existed. Besides, the /ex" Apuleia brought in' a kind of partnership between sponsores zx^A fidepromissores. For if any one of them pays more than his share, for the excess he has an action against the rest under that statute. It was passed before the lex Furia, at a time when they were bound each for the whole amount. Hence it is questioned whether after the lex Furia the benefit of the lex Apuleia still remains. Beyond the bounds of Italy it does ; for the lex Furia holds good in Italy oiily, but the lex Apuleia in the other regions beyond. (G. 3, 122,)' III, Duty of the debtor to the siu-ety. Besides, the lex Pompeia provided that a creditor on receiving sponsores ox fidepromissores should first state and declare openly both the amount to be assured and the number of sponsores ox fidepromissores he is to receive as undertaking that obligatioa. Unless he first states this, the sponsores or fidepromissores are allowed to demand within thirty days a preliminary trial of the question whether such a statement was first made in accordance with that statute. And if it is decided that it was not made, they are freed. (G. 3, 1 23-) B. Fidejussores, Mandatores, Qui constituunt. I, Duty of surety to creditor. Until the time of Hadrian, the creditor could require any one co-surety to pay the whole debt. The only remedy of the surety was to require the creditor, before paying him, to transfer his rights of action 2 o 578 ACCESSORY CONTRACTS. against the other sureties. (D. 46, 3, 76 ; D. 46, 1, 41, 1.) If this were done, the surety could, in the name of the creditor, sue the co-sureties, and compel them to share the Joss. 1. Beneficium, cedendarum aGtionum. We have already seen that the creditor must surrender to a surety, on paying the principal debt, all his rights against the principal, as also all mortgages. (D. 46, 1, 13 ; C. 8, 41, 21.) The creditor must equally surrender his action against the co-sureties. But here a difficulty arises. The debt for which the sureties are liable is one debt, and according to the general rule, an obligation in solidum was extinguished if only one of the co-creditors paid it. When, therefore, a surety was compelled to pay, was not the right of the creditor against the other parties destroyed? If so, how could he assign to the surety against his co-sureties a right that, ex hypothesi, was an- nihilated? This technical difficulty was got over by a technical subtlety. It was held that another interpretation might be put upon the transaction. It might be said that the creditor did not ask the surety to discharge the obligation, but rather to buy his (the creditor's) right against the co-sureties. For this view it was urged that the creditor could not require the surety to pay without surrender. (D. 46, 1, 36.) This view was not without its influence on practice. The transfer, or an agreement for the transfer, of the action must take place before the payment, otherwise the obligation was extinguished. (D. 46, 3, 76.) But if the creditor by his own fault was not in a position to transfer his right of action against the co-sureties, could he then compel one surety to pay the whole? Papinian answered the question in the negative. (D. 46, 3, 95, 11.) 2. Beneficium Divisionis, in favour of fidejussores, mandatores, and qui constituunt. (C. 4, 18, 3.) Fidejussores [are bound for ever, and] if more than one, no matter what their number, are liable each for the whole, and the creditor is free to demand the whole from whom he will. But by a letter of the late Emperor Hadrian the creditor is forced to demand only a fair share from each ^de- jussor that is solvent at the time issue is joined ijitis contestatio), and there- fore, if any of them is at that time insolvent, this increases the burden of the rest. [In this respect, then, this letter differs from the lex Furia, that if any of the sponsores ox fdeproniissores is insolvent, more cannot, for this reason, be demanded from the rest. But since the lex Furia applies to Italy only, it follows that in the provinces sponsores also, and Jidepromissores, just like fidejussores, would be bound for ever, and each for the whole amount, were it not for the letter of the late Emperor Hadrian, which seems to give relief to CO-SURETIES. 579 them also. But the position oi fidejussores is different, for to them the lex Apuleia does not apply.] If, therefore, the creditor obtains the whole amount from one, that one alone will bear the loss, if (that is) his principal is insolv- ent. But he has himself to blame ; for as appears from what is said above, if the creditor demands the whole from anyone, he may, under the letter of the late Emperor Hadrian, desire that an action be given against him for his fair share only. (J. 3, 20, 4 ; G. 3, 121-122.) The form of defence was, " Si mm et illi solvendo dnt." (D. 46, 1, 28.) When two debtors {correi) separately gave fidejussores, the creditor could not be forced to divide his claim among all, but only among those that were bound for the same debtor. (D. 46, 1, 51, 2.) A surety of a surety cannot require division between them, because his surety is in the situation of a principal debtor. (D. 46, 1, 27, 4.) II. Duty of debtor to surety. In that statute [lex Pompeid\ no mention oi fidejussores is made. But it is usual, in accepting them also, to first make such a statement. (G. 3, 123.) SUBDIVISION II. RULES APPLICABLE TO CONTRACTS GENERALLY. Rights and Duties. Under this head little has to be added. The several duties arising from the several contracts will be found in the exposi- tion of those contracts ; and there remain only a very few general remarks. 1. Interpretation of Eights and Duties, To the man that is understood to claim too much in respect of place, he comes very near that claims more than he has any ground {causa) for claiming. A man may, for instance, have stipulated with you thus: " Do you undertake to give me the slave Stichus or 10 aureij" and then claim either the one or the other — the slave alone, or the 10 aurei alone, for instance. He therefore is understood to claim too much ; because in that sort of stipu- lation the promiser is allowed to elect whether he prefers to pay the money or give the slave. If, then, the claimant sets forth in his intentio that the money only, or the slave only, ought to be given him, he snatches from his adversary this right of election, and in that way makes his own condition better but his adversary's worse. In that case, therefore, a special form of action is set forth, in which the claimant states in his intentio that the slave Stichus or 10 aurei ought to be given him, so that he claims in the same way in which he stipulated. (J. 4, 6, 33 p.) 580 CONTRACT — GENERAL CHAPTER. , For the meaning of " kitentio,'' see Book IV., Proceedings in Jwe. Gaius has promised to Titius, by stipulation, Stichus or 1 aurei. Gains may change his mind as often as he pleases until he actually gives one of the two. (D. 45, 1, 138, 1.) Titiue has several farms called ' ' Cornelian." Gaius stipulates for his " Cornelian " farm without saying which, Titius has the option of giving any of his " Cornelian " farms, whichever he pleases. (D. 45, 1, 106.) Titius sold a house to Gaius, reserving to himself the right of habitation (hdbitatw) during his life, or 1 aurei a year. Gaius, exercising his option for the first year, paid 10 aurei, but the second year desired to give Titius the possession (hdbitatio), Gaius was safe against an action at the instance of Titius so long as in any year he either paid the rent or offered him the alternative of dwelling in the house. (D. 19, 1, 21, 6.) Titius has stipulated for 10 or 5 aurei; 5 only are due. (D. 45, 1, 12.) Titiua has stipulated for a thing to be given him in one or two years. The thing is due only in two years. (D. 45, 1, 109 ; D. 45, 1, 12.) Titius has stipulated for Stichus or 10 OMrei, "whichever," he said, "I please." Titius can sue for either in his option. (D. 45, 1, 75, 8.) 2. Genus and species. Again, if one stipulates for a slave in general, and demands Stichus specially, or stipulates for wine in general, and demands Campanian wine specially, or for purple in general, and demands Tyrian purple specially, then he is understood to claim too much. For he takes away from his adversary his free choice, secured him by the stipulation of paying something else than what was demanded. (J. 4, 6, 33 D.) 3. Quality. If no special quality of an article is promised, any quality may be given in performance. (D. 17, 1, 52.) In the contract of nmtuum, the same quality must be returned that is lent. (D. 12, 1, 3.) Investitive Facts. Hitherto we have dealt with thq investitive facts peculiar to each separate contract ; we have now to consider in what points all contracts agree. This discussion will fall under the follow- ing divisions : — I. Consent — Error. II. Modality, the modification of an agreement by time, place, or condition. III. Ebsteiotions on the Investitive Facts. I. In respect of their origin : Eorce, Fraud, and Bad Consideration. Vis, Dolus, injusta causa. n. In respect of the object of the promise. Illegal contracts. HI. In respect of the persons incapable of entering into contracts. IV. Extension of Investitive Facts. Agency. First — Consent —Error. Two or more persons are said to consent when they agree CONSENT — ERROR. 58 I upon the sarae thing in the same sense.^ All contracts imply consent. (D. 44, 7, 3, 1.) In order to establish a promise, a proposal must be accepted in the same sense in which it is made. This is the meaning and essence of contract ; for, as has been pointed out, the obligation from contract is enforced by law, in accordance with the intention of the parties. Intention, however, is a mental act, and can be discovered only through the medium of language. This medium is a source of error. Such error may be of two kinds, essential and non-essential. 1. Essential Error {error in corpore). — An error is essential when it is such as prevents the two contracting parties agreeing upon the same thing in the same sense. Such an error is inconsistent with the nature of the consent, that is of the essence of contract. It is in this sense that error is said to vitiate consent.^ Essential error may occur in any one of three forms. A. may promise a thing to B., B. meaning to accept a different thing ; or they may agree on the thing, but A. may undertake one kind of duty, and B. understand another ; or, finally, A. may intend to bind himself to B., and discover that he has really promised to C In technical language, the error may be in the corpus, or thing promised, or in the nature of the obligation, or in the person of the promisee. If the stipulator is thinking of one thing, the promiser of another, no obli- gation is contracted, any more than if no answer had been given to the ques- tion. An example would be, if anyone were to stipulate with you for the slave Stichus, and you were thinking of Pamphilus, whose name you believed to be Stichus. (J. 3, 19, 23.) Titius sells to Gains for 100 awd the fundus Sempronianus. That is the correct name ; but Gaius, being in error as to the name, intended to buy quite a different farm. There is no contract of sale, because what the one intends to sell the other does not intend to buy {quia in corpore dissensimus). (D. 18, 1, 9, pr.) But if both mean the same farm, although they know it by different names, the contract is good. A mistake in the name is nothing if there is an agreement as to the thing.' Titius lets a farm to Gaius at a rent of 10 aurei. Gaius understood the rent to be 5 awrei. There is no contract. But if the mistake were the other way, and Titius was disposed to let it for 5, then the contract is good, and the rent is 5 aurei. (D. 19, 2, 52.) Maevius agreed to let a farm to Sempronius for forty years. Sempronius, misun- derstanding the terms offered, agreed to buy it. There is no contract, because one has in view the duties belonging to sale, the other those belonging to letting on hire. (P. U, 7, 57.) ' Et estpactio duorum plunumve in idem pladtum consensus. (D. 2, 14, 1, 2.) 2 Nulla enim voluntas errantis est. (D. 39, 3, 20.) Non videntur qui errant consentire. (D. 50, 17, 116, 2.) * Nihil enimfacit error nominia, cum de corpore constat. (D. 18, 1, 9, 1.) 5^2 CONTRACT — GENERAL CHAPTER, Maevius deposited with Sempronius a bag of money for safe custody. Sempronius thought it was a loan, and used the money. This is not a contract either of depositwm or mutuvm. Sempronius, may, however, be compelled to restore the money. (D. 12, 1, 18, 1.) Maeyius, intending to make a present to Sempronius, gave him money, which the latter accepted as a loan. Was this a gift or a loan 1 Julian answered it was neither, because the parties intended different things. Is Sempronius bound to restore the money ? Certainly ; but if he has spent the money he can resist the claim of Maevius to restitution, on the ground that such a demand, after he intended to make a gift, is against good conscience [exceptio doU mali). (D. 12, 1, 18, pr.) Another point is suggested by this case, which although not belonging to the law of contract, may be mentioned here. What is the effect of such an error upon the ownership ? Julian says (D. 41, 1, 36) that an error as to the coMsa does not vitiate the delivery (traditio) as a transvestitive fact of ownership. Hence, in this case, Sempronius would be owner, and the remedy of Maevius is therefore not by vindieatio, but by condictio. Julius agrees to advance money on loan to Cornelius, a respectable man. Gains brings to Julius another Cornelius, a needy fellow, and induces Julius to pay him the amount. There is no loan ; and both Gains and the false Cornelius are guilty of theft, because their conduct is fraudulent. (D. 47, 2, 52, 21 ; D. 47, 2, 66, 4.) Julius asked a loan from A. and B. B. gave an order to his debtor Seius to pay the amount to Julius. Seius promised the amount by stipulation to Julius, and Julius accepted the money under the mistaken belief that Seius was the debtor of A. This did not establish a contract of loan between Julius and B., because Julius had no intention of binding himself to B. ; but as Julius has got B.'s money, he was bound, in good conscience, apart from any contractual obligation, to return it to him. (D. 12, 1, 32.) 2. NON-ESSENTIAL Error (error in substantia or materia) exists when the parties agree upon the same thing, in the same sense, but one has, unknown to the other, a wrong belief as to the nature of that thing. For example, a shopkeeper agrees to sell a vase to a purchaser, who imagines it to be made of gold ; the shopkeeper knows it is not, but is ignorant of the delusion of his customer. In this instance the shopkeeper is free from blame, and has made a fair bargain ; all the essentials of a con- tract are present. But it would be hard if the customer should be compelled to take what he would never have bought but for an erroneous belief as to its composition. How far in such cases should the law give relief? On the one side, the disposi- tion of the jurists was to support transactions ; on the other, it was a great hardship to force upon a buyer a different kind of article from what he intended to buy. Savigny, who has gone through the cases, sums up those in which relief was granted under this general statement : — When the difference in quality between the thing bought and that which the purchaser in- tended to buy is such as to put the one in a different category of merchandise from the other, then the error is fatal to the CONSENT — ERROR. 583 contract. The cases, however, do not fall in with this distinc- tion, and the distinction itself is not very precise. It would probably be more correct to say, that materiality of error is not capable of exact definition, but depends upon the whole cir- cumstances of each case. (1.) A person agrees to take afi article, believing it to be gold, when in reality it is bronze. The sale is void. This result vpas not reached without controversy. Mar- cellus adhered to the hard line, that if the parties agreed as to the particular thing sold (i.e., as to the cm-pus), and there was only an error as to its quality {in ■materia), the contract was good. Ulpian, however, differed from him, when the difference was between gold and bronze. (D. 18, 1, 9, 2.) If, however, the article were of gold, but of inferior quality, the contract was good. (D. 18, 1, 10.) In another case co-heirs sold a bracelet said to be of gold to one of themselves. It was found to con- sist chiefly of bronze. The contract was supported because the thing was partly of gold. (D. 18, 1, 14.) (2.) A person takes an article that he thinks is silver ; it is really tin or lead. The sale is void. (D. 18, 1, 9, 2.) You have sold me, without intending to deceive me, a table covered only With silver, which I thought to be solid. The sale is void: (D. 18, 1, 41, 1.) But Ulpian seems to decide the other way, in the analogous case of a thing being gilt with gold, (D. 18, 1, 14.) (3.) A person buys wine, as he thinks, but it is vinegar. The sale is void. Here, however, Ulpian draws a distinction. If the thing sold was wine, and became vinegar only when bout, the sale is good ; but if it was vinegar from the first, then there is such a difference between the things that the error vitiates the contract. (D. 18, 1, 9, 2.) (4.) A person buys a slave of one sex, thinking the slave to be of the other sex. The sale is void. If, however, the error were in buying a female slave as a virgin, who was not, the mistake did not vitiate the contract. (D. 18, 1, 11, 1.) Why? Savigny urges that in this, as in the three preceding cases, male and female slaves belonged to a different sort of merchandise. Female slaves were employed in house- work, male slaves in work out of doors ; a difference as great as separates the silver- smiths from coppersmiths or iron-workers. There are passages that seem to carry relief in cases of error further, but Savigny is not disposed so to construe them. 1°. The mistake of old clothes for new. According to the rule laid down by Savigny, this error does not relate to two different kinds of merchandise, and there- fore should not be fatal. An extract from Marcian (D. 18, 1, 45) is not easily to be reconciled with this view. Marcian quotes the opinions of Labeo, Trebatius, Pomponius, and Julian, to the effect that when old clothes furbished up for new are sold (si vestimenta interpola quis pro novis emerit), the vendor must make good the difference in value. Savigny says in this case the vendor must be understood to have warranted the clothes as new. But there is nothing about warranty in the text ; nor can it be easily supposed that Marcian had in his view a case of warranty. If he had, his proposition was to a Roman lawyer self-evident, and the array of opinion he quotes would seem superfluous. The distinction between this case and the others seems to be that the contract for the sale of the clothes was valid, but that the vendor must indemnify the buyer. 2°. Paul (D. 19, 1, 21, 2) qualifies his opinion that an error as to the corpus alone is fatal, not a mistake as to the quality, by the important exception that the vendor, if he is ignorant, ought to make good to the buyer the difference of price between what the buyer actually gave, and what he would have given if he had known the 584 CONTRACT — GENERAL CHAPTER. real nature of the article ; as, e.g., when he buys tables as made of citron, when they are not. Here again Savigny says the render must have sold them for citron tables ) but it may be doubted whether with sufficient reason. 3°. Error in formal contract. Titius stipulated with Gaius for a thing that he thought was of gold, but was only brass. Gaius is bound to deliver the thing agreed upon without any indemnity, unless he cheated Titius, after having given an express promise not to cheat {doli mali clausula). (D. 45, 1, 22.) The reason assigned is that the parties agresd on the object of the stipulation (quania/m in corpore consendmus. ) S econd— Modality. The term " Modality " is used to signify that a promise is limited as to the time or place of performance, or is suspended by a condition. A. Place. In the absence of any express agreement as to the place where the contract is to be performed, the place is often indi- cated by the nature of the promise. A promise to deliver an immoveable must be performed where the immoveable is ; so a promise to repair a house must be performed where the house is. But if there is no such indication, generally the creditor can demand performance where he can sue, i.e.,within the jurisdiction to which the defendant is subject. This rule is subject to an important qualification in the case of honae fidei contracts. The defendant is not obliged to carry a moveable from the place where it happens to be at the time he is bound to deliver it, except at the risk and cost of the plaintiff. If, however, the defendant has caused the moveable to be kept purposely in an inconvenient place, he is not entitled to this indulgence. (D. 16, 3, 12, 1.) It is otherwise, however, in a stipulation (a con- tract stricti juris). When no place is mentioned in a stipula- tion, the promiser must deliver the thing to the stipulator within the jurisdiction to which the promiser is subject. (D. 45, 1, 137, 4.) So much as to the place in which the plaintiff could exact performance. Where could the debtor require the creditor to accept performance ? There is no text quite applicable to this ; but Savigny thinks that a complete reciprocity must be admitted between the two parties, and that the debtor would have a freedom of choice corresponding to that enjoyed by the creditor. Too much may be claimed in respect of place, — as when a man has stipu- lated that something shall be given him in a certain place, and then claims it in another place, without making mention of the place in which he stipu- lated it should be given him. A man may, tor instance, have stipulated thus, " Do you undertake to give it me at Ephesus ? " and then at Rome MODALITY. 585 bring a simple intentio that it ought to be given him. The reason why he is understood to claim too much is this, that by bringing a simple intentio he deprives the promiser of the advantage he had if he paid at Ephesus. When, therefore, a claim is made elsewhere, an actio arbitraria is given to the claimant, in which account is taken of the advantage that would have been open to the promiser if he paid at that place. It is in trade that the greatest advantage is commonly found — in wine, oil, corn, for instance, which bear a different price in every single district ; but money, too, is not let out at the same interest in every district. If, however, the claim is made at Ephesus, that is in the place where he stipulated the thing should be given him, then he rightly proceeds by a simple action. And that is pointed out too by the Prastor, because the promiser secures his advantage in making payment. (J. 4, 6, 33 c.) The action here referred to is called actio de eo quod certo loco. (D. 13, 4, 3.) The sphere of its operation was narrow. In all contracts, except stipulation (D. 13, 4, 7i 1 ; D. 13, 4, 2, 1), and expensUatio, an action could be brought elsewhere than in the place of performance, the judge taking account of the circumstance. (D. 13, 4, 7, pr.) Even in the case of stipulation it was only where the promise was to give (dare), not to do {facere), that recouree was necessary to the arbitraria actio, (D. 5, 1, 43.) Titius has stipulated for 100 aurei from Gaius, to be paid at Capua, and Maevius is surety. Owing to the fault of Gaius the money is not paid at Capua. Can Mae- vius be sued at Rome ? Maevius is not excused, and must pay as if he had made default himself. (D. 13, 4, 8.) The judge had power even to increase the amount agreed to be paid, if it was the interest of the plaintiff that the money should be paid elsewhere than at the place where the action was brought. (D. 13, 4, 2, 8.) On the other hand, he could acquit the defendant if the latter preferred to pay at the place agreed upon, and give proper securities. (D. 13, 4, 4, 1.) B. Time. I. If no time is mentioned in the contract, performance could be immediately demanded. (D. 45, ], 60; D. 45, 1, 4], 1; D. 50, 17, 14.) But a reasonable time, varying with the nature of the contract, must be allowed for performance. If you stipulate that a farm shall be given you, or a slave, you will not be able to bring an action forthwith, unless a sufficient space of time for delivery has elapsed. (J. 3, 19, 27.) Places too are usually inserted in a stipulation, as " Do you undertake to give it at Carthage ? " This stipulation, though it seems to be made simply, yet in truth has a time thrown in for the promiser to use in giving the money at Carthage. Therefore, if a man stipulates thus at Rome, " Do you undertake to give it at Carthage to-day ? " the stipulation would be void, because the promise in return is impossible. (J. 3, 1 5, 5.) Again, time must be allowed when slaves not born are sold, or growing crop, or a contract is made for building a house. (D. 45, 1, 73, pr.) What is a reasonable time ? Suppose Titius, being at Rome, agrees to pay to Gaius also dwelling there, 100 aurei at Ephesus, how long time is allowed to Gaius for the payment ? It is a question for the judge, who will consider how long a prudent and 5^6 CONTRACT^GENERAL CHAPTER. fairly active man would take for tlie distance. On the one hand, Gains is not to be required to go through storm and tempest, and to travel by night and day ; nor, on the other hand, is he to dawdle on the way, but to make such progress as, having regard to his age, and state of health, and the season of the year, might fairly be expected. If, however, he actually goes to Ephesus, the money is due from the moment of his arrival, although he has made a quicker than average journey. (D. 45, 1, 137, 2.) So in the case of a building, the builder must be allowed the time required by an ordinary builder. (D. 46, 1, 137, 3) ; and if any accident occurs to cause delay, as fire, allowance must be made, and a longer time granted. (D. 45, 1, 15.) A difference of opinion emerges in the Digest on the question at what time a breach of such a contract occurs. Suppose a building could be put up in two years, and one year has elapsed without a beginning having been made, cannot the builder be sued, since it is now impossible that the contract should be performed within the time, or must the plaintiff wait until the last day of the two years has expired ? Ulpian states that, in the case of a contract to repair, the owner of the house is not obliged to wait until it falls down ; nor, in a contract to build, until a sufficient time has elapsed to complete the building ; but he may sue if there is unreasonable delay. (D. 45, 1, 72, 2.) Marcellus says, no action will lie unless a sufficient length of time has elapsed in which the repairs could have been completed. (D. 45, 1, 98, 1.) Pomponius applies the same rule to a, contract for the erection of a house. (D. 45, 1, 14.) Papinian says that if there was a stipulation to execute the work in a specific time, say two years, no action could be brought until the two years had (D. 45, 1, 124.) II. When a time for performance is mentioned in the contract. Every stipulation is made either simply, or for a certain day, or condition- ally. It may be made simply, as when the question is, " Do you undertake to give 5 aureiV and that can be claimed instantly. It may be made for a certain day, when a day is thrown in on which the money is to be paid, as, "Do you undertake to give lo aurei on the first kalends of March?" But what we stipulate for against a certain day, though due at once, cannot be claimed before the day comes ; and not even on that very day for which the stipulation is made can it be claimed, because the whole of that day ought to be allowed the debtor for payment at his discretion. Indeed it is not certain that the money has not been given on that day for which it was promised, before the day is gone. (J. 3, 15, 2.) A man that has stipulated that a thing shall be given him this year or this month, cannot rightly claim until every part of the month or year is gpne by- (J- 3) 19. 26.) c. Conditions. I. Definition. — A CONDITION exists when the performance ot a promise is made to depend upon an event future and uncer- tain. (D. 12, 1, 39 ; D. 45, 1, 100.) Conditions referring to past or present time, either make the obligation invalid at once or do not put it off at all. If, for instance, one runs, " Do you undertake to give it if Titius was consul, or if Maevius is alive ? " and neither of those is so, the stipulation is MODALITV, 587 not valid ; but if they are so, it is valid at once. For what in the very nature of things is certain is no hindrance to an obligation, though to us it is uncertain. (J. 3, 1 5, 6.) Dies is when a time is agreed upon for the performance of a promise. It is either ex die, when performance cannot be demanded before a certain day ; or in diem, when performance cannot be demanded after a certain day. (D. 44, 7, 44, 1.) Do you promise to give on the kalends of March ? — is ex die. Do you promise to pay up to the kalends of March ? — ^is in diem. Dies is definite when a specific day is named ; it is indefinite {incertns dies) when it is certain that the day will come, hut not when it will come. (See Book III., Conditions in Wills. ) Incertus dies differs from conditio. When an incertus dies is mentioned, it is cer- tain that the promise will be due, but not when it will be due. When a promise depends on a conditio, it is not certain that it ever will be due. The Romans used certain terms with respect to deferred pro- mises. A notable distinction was between dies cedit and dies venit. When an obligation begins to exist, as when money becomes due, it was said, dies cedit; when performance may be de- manded, it was said, dies venit. In a simple unconditional contract, both dies cedit and dies venit the moment the contract is made. When there is no condition, but a time is fixed for perform- ance, the obligation at once exists (dies cedit), but performance cannot be exacted until the time arrives (dies venit). If the contract is conditional, and no time specified, no obligation exists until the condition is fulfilled ; and then per- formance may be at once demanded. (Both dies cedit and dies venit.) If the contract is conditional, and also a time is fixed for performance, the obligation exists (dies cedit) when the con- dition is fulfilled ; but performance cannot be demanded (dies non venit) until the times arrives. The distinction between dies cedit and dies venit is of little practical importance in the law of Contract ; but it is a vital one in the law of Wills. When a man makes a stipulation conditionally, although he dies before the condition is fulfilled, yet afterwards, when the condition exists, his heir can bring the action. And so too on the side of the promiser. (J. 3, 19, 25.) A conditional stipulation gives rise to a hope only that there will be a debt : and that hope we transmit if before the condition exists death befalls us. (J. 3. IS, 4-) But in a conditional legacy, if the legatee died before the condition was fulfilled, he transmitted notliing to his heirs. The reasons for this distinction will be afterwards examined. 5^8 CONTRACT — GENERAL CHAPTER, The chief practical eifect of a condition in a contract was that if the promiser paid by mistake before the condition was fulfilled, he could recover his money as " not due " by the con- dictio indebiti. (D. 12, 6, 16.) But for many purposes a con- ditional obligation was regarded as subsisting before the con- dition was fulfilled. Thus a pledge might be given to secure a conditional obHgation. (D. 20, 1, 13, 5.) Again, the capacity of the promiser was reckoned from the time of making the contract, not from the fulfilment of the condition: a slave could not make a contract to take effect after he was free. (D. 45, 3, 26.) Moreover, when a condition was fulfilled, it had a retro- active effect, and the obligation was held to subsist from the moment the contract was made. This was important, as we have seen (p. 269) in questions of priority in mortgage. (D. 20, 4, 11, 1.) A stipulation is made conditionally when the obligation is put off and made to depend on some event, so that if anything is done or not done the stipulation begins to he binding. For instance, " Do you undertake to give 5 aurei if Titius has been made consul.'"' (J. 3, 15, 4.) Titius stipulates with Gaius for 10 aurei on demand. This is not a condition, but an admonition to the debtor to be prompt in payment. Hence if the creditor dies without making a demand, his heir is nevertheless entitled to the money. (D. 45, 1, 48 ; D. 45, 1, 135, 1.) A farm was mortgaged. Titius bought it from the owner on condition that the latter should release it from the mortgage before the kalends of June. Can Titius sue the owner to compel him to release the farm and deliver it ? It depends on the intention of the parties. If Titius is right in his demand, the sale was not conditional ; if the sale was really conditional, the owner may ful£l it or not as he pleases. (D. 18, 1, 41, pr.) If a man stipulates thus, " Do you undertake to give 5 aurei if I do not go up into the Capitol .'' " it will be just the same as if he had stipulated that they should be given him at death. (J. 3, 15, 4.) When no time was fixed, as in the case stated by Justinian, Papinian tells us there was a controversy. Thus, "If you do not dehver Pamphilus, do you promise 100 aurei ? " Pegasus said no action could be brought until it had become impossible to deliver Pamphilus. Sabinus took the opposite view, and construed the condition as if it were stated thus : — " Do you promise to deliver Pamphilus, and, if you do not, to pay lOOaMrei?" (D. 45, 1, 115, 2.) A negative condition was usually rendered definite by adding a time — as, if you do not go to the Capitol within two years. (D. 45, 1, 27, 1.) If Lucius Titius does not arrive in Italy before the kalends of May, will you pro- mise me 10 aurei 1 In this case no action can be brought until (1) the kalends of May, and (2) the non-arrival of Titius in Italy. (D. 45, 1, 10.) " If you do not go up to the Capitol or go to Alexandria, do ycu promise 100 aurei i " Papinian says in this case no action can be brought until it is certain that you cannot do one of the two things. (D. 45, 1, 115, 1.) MODALITY. 589 II. Conditions may be attached to all contracts except the expensilatio. A mandate can be given either for a future day or conditionally. (J. 3, 26, 12.) The contract of sale can be made either conditionally or simply. A case of the former is this, — " If Stichus up to a certain day gives you satisfaction, you shall buy him for so many aurei." (J. 3, 23, 4.) A condition was tisually inserted in the contract at the time of making it. But -conditions, subsequently agreed upon, could be used by way of defence. Thus if the creditor after making a contract agreed not to sue unless a certain event occurred, and he sued before that event occurred, he would be defeated by the easceptio pacti conventi or doU malt. So if, after the contract, the creditor agreed that the debtor should be released if a certain event happened, and that event did happen, the creditor would be defeated if he endeavoured to recover the money. (D. 44, 7, 44, 2.) III. Fulfilment of Conditions. — A condition is said to be fulfilled {siipulatio committitur) either when the event occurs, or when the promiser prevents its occurrence. (D. 45, 1, 85, 7 ; D. 50, 17, 174.) Gaius has promised to Maevius 10 a/iirei if Titius becomes consul. Gaius dies, and afterwards Titius becomes consul. The heirs of Gaius must pay the 10 aurei to Maevius. (D. 45, 1, 57.) Seia, in writing to Lucius Titius, stated that she had bought gardens at his request ; and that she would convey the property to him as soon as she was paid the price with interest ; and Lucius Titius agreed to pay the money and take over the gardens before the kalends of April. He failed to pay the whole of the money by that day, but shortly afterwards tendered the whole. Seia refused. Could he compel her to take the money and deUver up the gardens, although the time had passed within which, in strictness, the condition could be fulfilled ? The judge had power to allow him a little time, if it entailed no inconvenience on Seia. (D. 45, 1, 135, 2.) Titius sold a library to Gaius on condition that the Decuriones of Campanus gave him a site for it. Gaius never applied for a site. Could Titius compel him to carry out the sale, as if the condition had been fulfilled ! Certainly, when it was the fault of Gaius that a site was not obtained. (D. 18, 1, 50.) IV. Suspensive and Resolutive Conditions. — A condition suspends an " investitive fact." But some conditions do not exactly bear that character ; they are rather divestitive facts than limitations of investitive facts. They are called resolutive conditions, as opposed to the other conditions that really sus- pend investitive facts, and are called suspensive conditions. This distinction, although not the terminology, was known to the Roman jurists. " Whether the purchase is unconditional, but 590 CONTRACT — GENERAL CHAPTER. is rescinded subject to a condition, or whether the purchase is rather conditional 1" is a question propounded by Ulpian. (D. 18, 2, 2, pr.)^ It is in the contract of sale chiefly that examples of resolutive conditions occur. Their importance is confined to the question of ownership. In a suspensive con- dition, the ownership of the thing sold cannot vest in the buyer until the event happens ; in a resolutive condition the sale is complete, and the thing sold, if dehvered, becomes the property of the buyer, subject to his liability to be divested on the happening of the event. Thus a buyer under a suspensive condition cannot acquire by usucapio, and he is not entitled as owner to the produce. (D. 18, 2, 4, pr. ; C. 4, 54, 3.) On the contrary, a buyer under a resolutive condition acquires by usucapio, is owner of all the produce, and must bear the loss if the thing should wholly perish. (D. 18, 2, 2, 1.) It must be observed, however, that the resolutive condition, if the event happens, does not divest the buyer of the ownership ; it operates as a divestitive fact of the contract of sale, not of the owner- ship. Hence the seller must sue the buyer, if he refuses to give up the purchase, not as owner (by vindicatid), but as seller (by actio ex vendito). (D. 18, 5, 6 ; 0. 4, 54, 3 ; D. 18, 5, 2.) A farm is sold to Gains on condition that the sale shall hold good if no better offer is made within six weeks. This is a suspensive condition. [D. 18, 2, 2, pr.) A farm is sold to Gaius on condition that if he changes his mind within six days the sale will be off. This is a resolutive condition. (D. 18, 1, 3.) "You may have the farm for 100 aurei; but if anyone before the kalends of January next offers better terms the sale is to be off." (D. 18, 2, 1.) Is this a sus- pensive or resolutive condition ? Ulpian answers that it depends on the intention of the parties. If they intended the sale to be complete, but to be rescinded if a better offer were made, it is a resolutive condition ; if, on the other hand, that the sale would be completed only if no better offer were made, the condition is suspensive. (D. 18, 2, 2, pr.) This condition was called in diem addictio. In diem Addictio. — The sale was not broken off" unless within the time agreed upon a bona fide purchaser was found (D. 18, 2, 4, 5) who offered a higher price, or speedier payment, or payment at a more convenient place, or better security for payment, or better terms in any respect {melior conditio adfen-i). (D. 18, 2, 4, 6.) The offer must be accepted by the seller {D. 18, 2, 9), and the buyer must have declined to make an offer as good. (D. 18, 2, 7.) Hence the seller was bound to give notice to the buyer of the new offer. (D. 18, 2, 8.) If those conditions are fulfilled, the buyer must give up the produce (fructns) to the seller (D. 18, 2, 6, pr.}, and the thing sold to the new purchaser. (D. 18, 2, 14, 4.) On the other hand, the buyer is entitled to his expenses for all beneficial expenditure on the thing sold. (D. IS, 2, 16.) The 1 Utrum pura emptio e^t, sed sub conditione resolmtur, an vero conditioncdis sit magis emptio. MODALITY. 591 buyer has, however, no claim against the new purchaser for the restoration of what he paid to the seller ; his only remedy is against the seller. (D. 18, 2, 20.) A farm is sold on condition that if the purchase-money is not paid within a certain time, the sale shall be off. (Si ad diempecunia sohita rum sit ut fundus inemptus sit.) This is a resolutiye condition, and is called lex commissoria. (D. 18, 3, 2 ; D. 18, 3, 1.) Lex Commissm-ia. — The condition was that if the price were not paid within the time fixed, the sale should be rescinded, and the buyer should forfeit the earnest {arrhae). (D. 18, 3, 8 ; C. 4, 54, 1.) Generally, also, it was agreed that if there was any loss on a second sale, the buyer should make it up. (D. 18, 3, 4, 3.) When such a condition is made, a seller has the choice of adhering to the sale, and suing the buyer for the residue of the price (D. 18, 3, 2 ; Vat. Frag. 3), or of rescinding the sale. But for this option he would occasionally be at the mercy of the buyer. Thus if a house sold were burned down, the buyer, under a resolutive condition, must sustain the loss (D. 18, 2, 2, 1 ; D. 18, 3, 2) ; but if by the simple expedient of not paying the residue of the price he could rescind the sale, the seller would be deprived of liis rights. Once, however, the seller has made his election, he cannot afterwards alter his choice. (D. 18, 3, 4, 2 ; D. 50, 17, 75.) An acceptance of part of the purchase money after the time fixed by the condition, was held to imply an adherence to the contract of sale. (D. 18, 3, 6, 2.) V. Impossible and Illegal Conditions. — Suppose the event making a- condition is one that cannot or ought not to occur, what is the effect upon the contract? An event physically- impossible, and an event forbidden by law, stand, in refer- ence to this question, on exactly the same footing. What is illegality will be considered hereafter ; at present it is enough to point out the effect of an impossible or illegal condition in a contract. If an impossible condition be added to obligations, the stipulation is alto- gether invalid. Now a condition is held to be impossible if the very nature of things forbids its existence ; as if a man said, " If I touch the sky with my finger, do you undertake to give it ? " But if he stipulates thus : " If I do not touch the sky with my finger, do you undertake to give it ? " the obligation is understood to be made unconditionally, and therefore he can claim fulfilment at once. (J. 3, 19, 11 ; G, 3, 98.) But a legacy left under an impossible condition the teachers of our school think just as valid as if that condition had not been added. The authorities of the opposing school, however, think the legacy as void as the stipulation. And in truth it is hard to give a satisfactory reason for making any distinc- tion. (G. 3, 98.) The argument of the Sabinians was, that when a man was dead he could not make his will anew so as to avoid the evil consequences of having it declared void ; but that living persons could, if they pleased, make a new contract, and omit the impossible or illegal condition. But the law of legacy and contract rested upon the same founda- tion, the intention on the one hand of a testator to make a gift, and the intention on the other of a promiser to bind himself ; and there appears no reason why a different rule of interpretation should be adopted in the two cases. Justinian, however, supported the rule of the Sabinians. Again, if any one had stipulated thus : " If a ship comes from Asia, do you 592 CONTRACT — GENERAL CHAPTER. undertake to give to-day ? " the stipulation is void, because it is framed so as to put what should be first last. But since Leo, of illustrious memory, thought that in the case of dowries this same stipulation, called praepostera, ought not to be rejected, we have decided to give it full force ; so that not only in dowries, but in every case, a stipulation so framed is valid. (J. 3, 19, I4-) Again, a mandate given me to be carried out after my death is void. For it is held to be a general principle that no obligation can begin with the person of the heir. (G. 3, 1 58.) Possibly this rule was adopted to prevent evasions of the Statutes that prevented certain persons from taking aa legatees, or limited the amount they could take. A stipulation that one's heir should pay a sum after one's death was in efiEect a legacy. That various devices were resorted to for the purpose of evading these Statutes appears from the Digest. (D. 22, 3, 27.) No man can stipulate that a thing shall be given him after his death, nor yet after the death of him with whom he makes the stipulation. (J. 3, 19, 13 ; G. 3, 100.) But a stipulation framed thus, as if Titius were to say, " At my death do you undertake to give it ? " or " at your death ? " was not void among the ancients, and is valid now. [It means that the obligation is imposed at the very latest momept of the stipulator's or promiser's life ; for it seemed incon- sistent that an obligation should begin with the person of the heir.] Again, we can rightly stipulate for a thing to be given after the death of some third person. (J. 3, 19, 15-16; G. 3, 100.) And not even a man in another's potestas could stipulate for a thing after his death, because he seems to speak with his father's or master's voice. Again, if a man stipulated for a thing " to be given the day before I die or before you die," the stipulation was void. [For the day before a man's death cannot be told till death has followed. And again, when death has followed, the stipulation is reduced to one for past time, and is something of this sort : " Do you undertake that it shall be given to my heir ? " which is certainly void.] (J. 3, 19, 13; G. 3, 100.) Whatever we have said of death must be understood to be said also of capitis deminutio. (G. 3, loi.) But since, as has been said, all stipulations come to be valid through the consent of the contracting parties, we have determined to introduce into this branch of law a necessary correction. And so, whether it is after death or the day before the death of either the stipulator or the promiser for which the stipulation is framed, it is a valid stipulation. (J. 3, 19, 13.) The rule that a man could not contract in such a way as to benefit his heir only and not himself, was simply an instance of a wider rule that one freeman could not make a contract to bind or benefit another. (D. 2, 14, 17, 4.) (See Law of Agency.) Third — Restrictions on Investitive Facts. The reason why the law interferes to compel persons to per- form their agreements, is the enormous advantage to mankind of the confidence that arises from the legal enforcement of con- tracts. That reason ought also to determine what contracts VIS, METUS. 593 sliould, and what should not, be enforced. In applying this reason, the first presumption is that every deliberate agreement should be sustained by the law. As a general pi-oposition, it may be affirmed that every man is a fair judge of his own interest, and the mere fact of his making a promise is a strong reason for believing it to be for his advantage. But this rule is not without exception. In the first place, a promise extorted by force or fraud will no doubt be favourable to the promisee, but equally it will be prejudicial to the promiser. In the second place, the nature of the promise may show that it cannot be beneficial, or that while beneficial i to the parties concerned, it maybe prejudicial -to the welfixre of the State. Thus, no State could enforce an agreement, to do an act for- bidden by its law. Lastly, the presumption that a . contract is beneficial, is destroyed when it is made by a child or by any one incapable of estimating rightly the consequences of his acts. The reasons for declaring contracts invalid may thus be con- sidered \mder three heads : (1) On account of the; inducements by which they were entered into ; (2) pn account of the pro- mises confiicting with the welfare of the parties to the. contract or of the State; and (3) on account of the absence of judgment in the persons binding themselves. A. Agreements that are void on account of their JIode OP Origin. Vis, Metus, Dolus, Sine causa, Injusta ■causa. It is sometimes said- that force or fraud vitiates consent, and is therefore fatal to a contract ; but it would be more accurate to say that force is in-consistent with free , consent, and that consent should not bind anyone unless it is, given freely. This distinction' is taken by PauLwith reference to the acceptance of an inheritance by a person appointed heir. Such an accept- ance, even if procured by force or fraud, was irrevocable, until at some time the Prsetor interfered and annulled the act (res- titutio in; integrum). For,, says. Paul, although if left to my own choice,, I would not have accepted, still I preferred that to the threatened violence. (D. 4, 2, 21, 5.>i Again, the formal modes of manumission were not even to. the latest times vitiated by force or fraud (p. 28). In like manner, the formal contracts were not .void, although procured by force or fraud. Cassius, a '■ Quia, quamvis si libeyum esset, noluissem; tamen coactjis volui. 2 P 594 CONTRACT — GENERAL CHAPTER. Prsetor, whose year of ofBce is not known, introduced an equit- able- defence {exceptio doli), wliicli appears to have been avail- able also in cases of intimidation (metm). Ulpian says Cassius was content with the exceptio- doU, quae est generalis. (D. 44, 4, 4, 3.)- Gicero tells us that the actio and exceptio metus were introduced' by a Praetor,. G&tav-i us (BX), 71). (Cic. Ver. 2, 3, 65.) The alteration introduced by Octavius was that, whereas only a- party to a- contract could be met by the exceptio c^b/j in- case of violence or intimidation,, the- e.wepiio metus could be employed when the introduction had been- catised by a person not- a- party to the contract, (U. 44j 4, 4, 3.) Finally, the actio- doli was introduced by the Prsetor Aqviilius, a colleague of Cicero; For instan'ce; if you, con-strained by fearof led'' on 'by fraud, or falling into a mistake, have promised to a stipulator, Titius, what you ought not to have promised, it is-evident that by the jus civile you. are bound, and the action ■whose inientio is " that youought to give it"^ is Of full force. But it is unfair that you should be condemned ; and therefore you are' given an exceptio grounded on that fear or wilful fiWd, .or oneframed in- factum, in' order to Insist his action. (J; 4-, 1-3, i.) The non-formal contracts of the Roman law were said to be honat fidei ;■ in other ^'^^ords,,th6y were ipsvas liable for concealing the fla;w, in the title. (D. 19, 1,11, 16.) Titius sells an estate, of which a certain part is not in his possession, and without informing the buyer of the fact agrees to sell the land within the limits of his possession. Titius must make good the loss. (D. 19, 1, 39.) The seller is bound to set forth truly the boundaries of the land. (D. 18, 1, 35, 8.) Gaius in treaty for the purchase of the farm of Titius went out with Titius to see it. After the visit, and before the contract of sale, a number of trees are blown down by the wind. Can Gaius claim the trees ? Not as buyer, because the trees were severed from the land before tlie date of the contract ; but if Titius knew, and Gaius did not, that the trees had been thrown down, then Titius must pay the value of the trees. (D. 18, 6, 9.) Titius in selling land to Gaius does not inform him of a rent on the land [triiutum). Titius must give compensation if he knew the fact. (D. 19, 1, 21, 1.) Titius sells a house in Rome to Gaius, saying nothing about an annual sum payable for an aqueduct. In an action for the price, Titius, having deceived the buyer by concealing the fact, must submit to a deduction from the price. (D. 19, 1, 41.) A seller was not responsible for servitudes on the laud, unless he knew of their existence, and did not inform the buyer. (D. 21, 2, 75; D. 19,1,1,1; D. IS, 1, 66,pr.) Titius, knowing that his land was subject to a particular servitude, made a special agreement that he would not be responsible for any servitude that might be ' Dolum malmn Servins qnidem ita definit, machinationem quandam afte!'i«s decipi- endi causa, cum aliitd simulatur et aliud atjitur. Labeo autem ... sic definit omne'Si calliditatem, fallaciam, machinationcm ad eircwniveniendum, fallmdum, decipi- eudum alttruni adhihilam. Labeonis definitio vera est. — (Ulpian.) (D. 4, 3, 1, 2.) DOLUS. 597 found. This agreement, notwithstanding, he must give compensation for the servitude. (D. 19, 1, 1, 1; T>. 21, 2, 69, 5.) A seller who did not inform a buyer of servitudes belonging to the land, if he knew of their existence, was liable for damages, if the buyer lost them by non-use. (D. 18, 1> 66, 1.) A seller knowingly sells a slave given to stealing. Although this is not within the edict if the seller is ignorant of the vice, he may be sued for damages, even before the slave has stolen anything. (D. 19, 1, 4, pr.) Titius, taking advantage of the ignorance of Gains, sells him a female slave as a virgin, she having given birth to children. Although this was not a case where tile ^dile's edict required a warranty, yet Titius for his fraud must submit to a reduction of the price, or to have the slave returned. (D. 19, 1, 11, 5.) A person lets a farm that he knows to grow noxious herbs, without informing the farmer of the circumstance. Some of the cattle put upon the land are poisoned by the herbs and die. The landlord must make good their value. (D. 19, 2, 19, 1.) Titius sells Gaius some rotten wood for building. The result is that the house falls down. If Titius knew the wood was rotten, he must pay for all the damage caused by the rotten wood ; if he did not know, then the price is reduced to the sum that the buyer would have given if he had known the state of the timber. (D. 19, 1, 13, pr.) Titius sells an ox to Gaius. The ox is suffering from a contagious disorder, which aflfeets and destroys all the cattle of Gaius. If Titius knew that the ox was diseased, he must pay the value of all the cattle of Gaius ; if he did not know, he can exact only what Gaius would have given if he had known the ox was diseased. (D. 19, 1, 13, pr.) Titius sells Gaius a slave that had a vice of running away. The slave runs away from Gaius with much valuable property. If Titius knew of the slave's vice, and did not mention it to Gaiusj he must pay Gaius not only the price of the slave, but the value of the property carried away. If he did not know, he is bound to return only the price of the slave. (Paul, Sent. 2, 17, 11.) 2. The defence of fraud was available only when the fraud of the promisee was alleged (Si in ea re nihil dolo malo actoris factum est) : and when the fraud was perpetrated by a third party, the only remedy of the promiser was against him in an action for fraud (actio de dolo). (D. 44, 4, 2, 1.). The burden of proving fraud rested upon the person alleging it. (C. 2, 21, 6.) III. Dolus, as want of valuable consideration (sine causa). A formal contract did not need a consideration, and prior to Cassius was not vitiated even by fraud. His innovation was intended to remedy this inconvenience of the civil law, so that men should not be able to avail themselves of its strictness and formality to act against natural justice.-' This remedy, having so wide a scope, applied where, although there was uo fraud in the initiation of the contract, yet to insist upon its performance would have been against good conscience. This limit may be ' Hanc exceptionem [doli niali\ Prcetor proposuit, me cui dolus mus, per occasioneni juris civilis, contra naturalem aeguitatem prosit. (D. 44, 4, 1, 1.) 59^ CONTRACT — GENERAL CHAPTER. defined by reference to the idea of valuable consideration, A formal contract did not require a consideration ; but if there actually was a consideration intended, without which the con- tract would never have been made, and such consideration failed, it would have been against good conscience to take advantage of the formal nature of the contract, and insist upon its performance. This is tlie meaning of saying that a stipula- tion made sine cawsa could not be enforced ; that it was dolus to ask its performance. Thias, in effect, a stipulation was void- able unless either it was made gratuitously, ox fox a xjonsidera- tion that .did not fail. Titius agrees to advance money to Galus on loan ; and Gains, before receiving the money, promises by stipulation to give the amount to Titius at a future day. The day arrives, but Gaius has never received the loan. If Titius sues Gaius on the stipulation, he -will be .repelled by the equitable defence of fraud [exc&ptio doli), (D. ii, 4, 2, 3.) Maevius, when sick, promised by stipulation 100 aurei to bis -wife's cousin, with the intention .that his wife should have the money after his death. He, however, recovered, and was sued by the .cousin for the 100 aurei. The cousin «ould be repelled by the plea of fraud. (D. 44, 4, 4, 1.) Gaius, .under the .false impression that he owed money to Sempronius, promised him the amount by stipulation. S.empronious, if he attempted .to recover the money, would be defeated by the plea of fraud. (D. 44, 4, 7, 1.) A father promised a dowry for his daughter, and agreed to support her and her servants. Not knowing that if he kept his daughter he was not bound to pay interest on the amount promised as dowry, he wrote to the husband admitting that he owed interest on the dowry. Could the husband. maintain an action .on the stipulation or chirograph for interest ? N^it withoait fraud, when the promise was made in error of law. (D. 44, 4, 17, pr.) If the promise were by chirograph, the promisor could require the written document io be delivered up to him. (D. 12, 7, 1, pr. ,; D.. 12, 7, 3 rC. -2, 5, 1.') IV. — Illegal Consideration {Injustq, or Turjoh Causa). No contract could be enforced if it were made for an illegal consideration, in which the inducement, as distinguished from the proihise, was illegal. (C. 4, 7, 5 ; "C. 4, 7, 1.) The defence is either fraud, or a statement of the illegality (Exceptie doli mali or Exceptio in factum). (D. 12, 5, 8 ; D. 45, 1, 123.;) B. Impossible and Illegal Promises. (a.) Impossible Promises. A promise may be impossible to -be performed either because the acts are physically impossible ox legally impossible. Of the ' Nil refert utrwmne ah initio sine cmisa quid datum sit, an causa propter quani datum sit, secuta non sit. (D. 12, 7, 4.) ILLEGALITY. 599 latter sort, an instance is when I undertake to give the owner- ship of a thing to another, when the thing cannot be the object of ownership. Inipossibilium nulla oh.ligatio est. {D,. 50, 17„ 185.) If a man stipulates (hat sometliing Shall be given him which, in the nature of things, does not exist or canpot exist, — Stichus, for instance, whois dead, hut whom he believed ,to .be alive [a freeman he believed to 'be a slave, a sacred or devoted spot he thought subject to man's law], or a hippo- centaur that cannot .exist, — then , the stipulatiop will bevpid. (J. 3, ;I9, i.; G. 3,97-, 97 A-) Titius seUs a locus religiosus pro puro to Maevius. There is. no -sale, but Maevius has an-acfto in factum. a,ga,ixist Titius on .account of the misrepresentation. (D. 11, 7, 8, 1.) Julius agrees to deliver 100 tons of copper to MaeTiug. .Julius has not got ths copper, and cannot perform his contract. The .contract is valid. Impossibility exists only when no human being can perform the promise. (D. 45, 1, 137, 5.) Titius and -Gaius agree by stipulation that Gaius sh?,!! .gjve Titius the same day 100 aiirei at Carthage. The contract is made in Eome. If each party had previously notified ±0 his, agent in Carthage that such a promise was to be made, there is no impossibility in the performance,, and tlje stipulation is.valiij. , (D. 45, J, ,141, 4.) The rule of law is the same if a man stipulates that there shall be given him an object that is sacred or devoted, believing it .to.be under man's law ; or public. and set apart for ever to the people's use, as a forum or a theatre; or a freem?.n' believing ' him to'be a slave; or a thing in which- he has no right .to trade {eommercium), or that is his own. And the stipulation will not remain in suspense, .because what is public may become private, because the freeman may be made, a slave, 'because the stipulator may Obtain a right to trade, or, the thing that belongs to him cease to be his : but it is frcjm that moment void. Again, . conversely, although at. first the thing is made ,the.,object of a stipulation that is vahd, if afterwards it comes int.o the same case as those. above mentioned, and. this. not by the promiser's, doing, the stipulation's put an, end to. And not even at the very first will such a stipulation as this be vahd — " Do you, undertake to give me Lucius Titius when be shall becom.e .a slave? "and, the like. .For what by its own nature is outside ownership by us, can in no way be reduced into an obligation. (J- 3, 19, 2.) Everything that is. the object, of ownership can be -brought into a stip;ula- tion, whether it is a moveable or landed property. (J. 3, 1-9, pr.) Oommercium is capacity to acquire or dispose of property according to the forms of the jiiS' civile. Titius buys two slaves for one price. At the time of -fhe ^a,le one of the slaves was dead. The sale is v.oiias to both. ,(D. 18, 1, 44,.) Stolen goods, by the XII Tables, could not be sold. (D. 18, 1, 34, 3.) A fugitive slave also, by a Senatus Gonsultum, was not capable of being sold. (B. 18, 1, 35, 3.) Grain for public distribution could not be sold. (C. 4, 40, 3?) Further, a stipulation is void in which a man through ignorance that 600 CONTRACT — GENERAL CHAPTER. a thing is his, stipulates that it shall be given him. For what is a man's cannot be given him. (G. 3, 99.) Again, if any man stipulates that a thing that will become his shall in that event be given him, the stipulation is void. (J. 3, 19, 22.) Spots sacred or devoted, and also public places, as a forum or basilica, it is in' vain for anyone to buy knowingly. But if he buys believing them, through the vendor's deceit, to be private property, or profane, he will have an actio ex empto, that since he may not have the object, he may yet recover what it would have been worth to him not to be deceived. The rule of law is the same if he buys a freeman for a.slave. (J. 3, 23, 5.) GaiuS stimulates for' a'sword belonging to himself to be given to him if a certain event happens. Before the event happens the sword ceases to belong to him. The stipulation is valid. (C 45, 1; 31.) ■ Titius is owner of an estate of wliibH hs has not the possession. From the person in possession he buys thd right of possession,' in order that in a suit for the recovery of the property he should be defendant, and so escape the necessity for making out his title. The sale is valid, although,' e»'%j30iAdsi, the-thing is his property. (D. 18, 1, 34,4.) Gains sells a Jitveditai to which he has no right. If the hereditas sold actually exists, he must pay its value ; but if no hereditas exists, he must restore the price, and pay any expenses the buyer has incurred or other damages. • (D. 18, 4,. 8 ; D. 18, 4, 9.) Titius buys Stiohus from Gains. Stichus, however, 'is really- free. Is the sale valid ? ■ If both Titius and Gaius believe that Stiohus is a slave, many hold that the sale is valid ; so if Gaius, the vendor, alone knows ; but if Titius, the buyer, knows that Stichus is free, the contract is invalid. (D. 18, .1, '70; D. 18, 1,4; D. 18, 1> 34, 3.) Titius buys a slavfe that both he and the vendor believe to be alive.' At the time of the sale the slave is dead. • There is no contract. (D. 18, -1, 15, pr.) Titius bought a house from Gaius, neither of them knowing that at the time of sSle the house was burned to the ground. Nerva, Sabiikus, and Cassius hold that the sale is void, and the price, if "paid, can 'be recovered. Neratius says that if it is only partially burned, so that a half or more of it remains, the sale is good, and a fair abate- ment is to be made from the price ; but if it is more than half burnt, the sale is void. Suppose Gains,' the seller,- alone knew, and Titius did not. If the' "vriiole house is burnt, the sale is void ; ' if any considerable part remains, the sale is valid, but the sfeUer must pay damages. If Titius the buyer knew, but not Gaius the' vendor, the sale is good, and the whole price must he paid. If both knew that it was burnt in whole or in part, both ha-ve made dolus and the contract is void. (D. 18, 1, 57, pr.-3.) • (b.) Illegal promises; Promises arfe void when tHey are made against some law,, or public policy, or morality. (C. 2, 3, 6.)- A promise for some base end, as to kill a man or' to commit sacrilege, is riot valid. (J. 3, r9, 24:) No mandate is binding that is contrary to good morals, aS when Titius gfives you a mandate to steal, lodo harm, or to injure any one. For although you undergo punishment on account of that very deed,. yet against Titius y.ou have no action. (J. 3, 26, 7 ; G. 3, 157.) A person under twenty promised by stipulation to release his debtor if he manumitted ILLEGALITY. 60I a slave. This is void, as against the policy, although not the precise terms, of the lex ^lia Sentia, A person above twenty could do so. (D. 45, 1, 66.) An agreement that one of the parties to a contract should not be responsible for his wilful acts and defaults [dolus] is void. (D. 13, 6, 17, pr. ; D. 2, 14, 27, 3.) An agreement not to sue if any theft or injuria be committed is void. But after a delict is committed (as theft), an agreement may be made not to sue the wrongdoer. (D. 2, 14, 27, 4.) Can a vendor impose on a purchaser an obligation not to sell without the consent of his neighbour, or not to bury anyone on his land ? He could not, by mere pact, but he could by a stipulation with a penalty, because the prohibition was not illegal and the penalty could be enforced. (D. 2, 14, 61 ; D. 11, 7, 11.) But Justinian sanctioned aU such pacts as had for their object to prevent the conversion of private property into a public or sacred thing. (C. 4, 54, 9.) " If you do not m.ike me your heir, do you promise me 100 aurei ? " Such a stipu- lation is void, because it is discreditable [contra honos liiores) to be casting eyes on a living man's inheritance. (D. 45, 1, 61 ; D. 27, 6, 2, 2.) An agreement between two that the survivor should have the whole of the deceased's property is void, unless between two soldiers taking the risk of a coming battle. (C. 2, 3, 19.) An agreement among heirs expectant to take the property of the deceased in certain shares is void, unless the deceased agreed to it, and did not change his intention up to his death. (C. 2, 3, 30.) An agreement in a marriage settlement [pactum dotale) that the wife should, along with her brother, take her father's inheritance in equal shares, is void, as depriving the father of freedom of testamentary bequest. (C. 2, S, 15.) A woman in marrying a man stipulated for 200 aurei with her husband, if he should renew his intercourse with a concubine he had at the time of the marriage. The con- tract is valid. (D. 45, 1, 121, 1.) " If I marry you, will you give me 10 aurei ? " This is void, unless the 10 aurei are to be a dowry, because it introduces a mercenary element into marriage. (D. 45, 1, 97, 2.) " If by your fault a divorce occurs, do yon promise to give 10 aurei ? " This stipu- lation is void, because it interferes with the freedom of divorce [libera matHmonia esse antiquitus placuif), and because the parties ought to be content with the penalties fixed by law. (C. 8, 39, 2.) But it was valid if it reserved penalties not exceeding those fixed by law. (D. 45, 1, 19.) Titia had a son Maevius by her first husband, and she married Gaius Seius, who had a daughter Cornelia. Titia and Seius betrothed Maevius to Cornelia, and both Titia and Seius agreed to pay a penalty if they obstructed the marriage. Gaius Seius died, and Cornelia refused to marry Maevius. Were the heirs of Seius liable for the penalty ? No, because it was indecent to annex a penalty to the continuance even of an existing marriage. [D. 45, 1, 134, pr.) A person promises by stipulation to marry his adopted sister. The contract is void, even if the sister is afterwards emancipated. (D. 45, 1, 35, 1.) An agreement by which one person undertakes to conduct a lawsuit of another, receiving a certain share of the proceeds [pactum de quota litis), is void ; but an agree- ment to advance money on loan to support litigation is valid, if nothing but the money lent with lawful interest is to be returned. (C. 4, 35, 20; D. 2, 14, 53 ; T>. 17, 1, 7.) An agreement for the sale of a poison that, even when mixed with other ingredients, serves no useful purpose, is void ; if when so mixed it is of use, the sale is valid. (D. 18, 1, 35, 2.) The chief physicians [Ardiiatri) could take a reward from their patients when recovered, hut could not enforce any promise of remuneration made by them when sick. (C. 10, 52, 9.) 602 CONTRACT GENERAL CHAPTER. c. Tnoapacitt of Person. (a.) Incapacity arising from the civil law. I. Slaves and freemen in mancipio. As regards slaves and persons in mancipio, the rifle of law is that they can come under no obligation, either to the person in whose potestas or mancipium they are, or to anyone else. ;(G. 3, 104, as restored.) In every contract there are a creditor and a debtor. A person may be incapable of being a -creditor, but capable of being a debtor ; or be may be-capable of being a debtor without being capable of being a .creditor. Incapacity must be con- sidered with reference to those points separately. 1. A slave could not be a creditor, so a-s to bring an action. Even a statuUber, a slave to whom freedom has been given subject to the happening of an event, cannot make himself a creditor. (C. 4, 14, 1.-) Nevertheless in some instances effect was given to contracts made by slaves. A slave is manumitted 'atid' instituted heir, subject to a^ condition bythe-will-of his master. Before the condition was fulfilled, he made a compromise with the creditors of the estate. Afterwards theev-ent happened, and he entered on the inheritance. Could the heir now meet the creditors, if they sued for their.whole debts, with the plea that they had by agreement -waived their - rights ? ' {Exceptio pacti. ) No, because a slave was as incapable of making a pact as a contract. But he was jnot left(without remedy. He could use the defence that the-demand.of the creditors was-againat good conscience {exceptio doli). (D. 2, 14, 7, 18.) A master owes (as a naturalis ohlicjatio) a sum to his slave, which on the slave's manumission he pays to him, thinking he was -compelled to do so by the law. In this the master was wrong, but he cannot recover the money, because the/deb.t was binding in conscience {quia naturaleagnovit elcbitum). (D. 12,^6,. 64.) 2. A slave cannot be a debtor. The promises made by a slave do not bind him, after attairiing freedom, so as to subject him to any action. By their contracts, slaves cannot ■■bind themselves, according to the civil law ; but according to the law of nature they-can be -.either creditors or debtors:^ ^(D. 44, 7, 14.) In a few other cases, also, as deposit and mandate, good conscience requires slaves who have been freed to deliver up that which is not .their own, but is held in -confidence. A woman appointed her husband her heir, and gave freedom^by way of trust to her slaves ; among others, to Stichus, her husband's steward. She dies, and in the absence of her husband Stichus obtains his freedom by decree. No action lies at the instance of the husband against Stichus to make him account for his administration. (D. 40, 5, 19, pr.) ^ Ex contractibus autem civiLiter quidem non olligantur; sed naturaliter ohligantur etoUigant. (D. 44,7, 14.) INCAPACITY OF SLAVES. 603 Stiehus induoed his master, Sempronius, to manumit him, by promising a sum of money. After the manumission Sempronius neglected to require a stipulation. He has nevertheless an actio in factum against Stiohi.13, on the equitable ground that he has manumitted Stichus. This is a considerable step, because although Stichus was free before he could be called on to perform his part of the contract, yet he was a slave when the agreement was made. But here the special'charaeter of the eqiutable con- tracts came into play. The duty imposed on Stichus. arises from the performance of Sempronius, and it therefore does not exist until Stichus is free. ,(C. 4, li, 3.) Stichus receives a loan from Titius, and with the money buys his freedom. Titius has no action .against Stichus to recover the loan (C. 4, 14, 2), but if Stichus pays Titius, he cannot ask back his money on the ground that it was not due. (D. 46, 3,83.) Stichus applies for a loan to Gaius. Gaius requires security. Stichus gives him in pledge another slave, forming part of his peevlium. He also induces Titius, a freeman, ,to become surety for the debt, and another freeman, Cornelius, to mort- gage a small farm. What remedies has Gaius ? He cannot sue Stichus, but he can keep the slave, compel Titius to pay the debt, and Cornelius to surrender the farm — all, if necessary, until he has recovered the whole of the money lost. The reason is, "that the debt of Stichus is binding in conscience (naturalis ohligatio). (D. 12, 6, 13, pr.) A silver vase is given to a slave Pamphilus for -safe custody. Pamphilus is manumitted. The -owner can sue him for the restoration .of the vase. (1). 16, 3, 21, 1.) A slave, Stichus, in obedience to, a mandate executes certain-orders. For what he does in slavery he cannot be sued on attaining his freedom, unless he continues to act after gaining his freedom on the same mandate, and what he does after manumission is so closely united with what he did before manumission as to be inseparable. Thus Stichus buys land and ^builds-xm it, and the building falls into decay. After manu- mission he lets the land. This alone can be made the subject of an action, not the purchase of the land, a quite different transaction, completed while he was still in slavery. (B. 3, 5, 17.) 3. The incapacity of a^lave to contract is thus on a level with his "incapacity "to own property. But just as a slave could enjoy -quasi rights of property, so he mif^ht have -to the extent of his.peculium a capacity for contract. We saw that as between the roaster and the slave the jseca/wm had no substantial legal existence; as between the slave, however, and third parties, the peculium was treated as the Wave's property. The slave, indeed, could not appear either as plantiff or defendant in a court of law, but when he was creditor his master could sue, and when he -was debtor his master could be .sued, and was responsible to the extent of the peculiuin. Generally, then, it may be said, fthat 'to the extent of the peculium a slave could make contracts, and bind himself in every case where a free- man could do so. (D. 15, 1, 29., 1.) Thus if the slave were under the age of puberty, he was bound only where a free boy would be bound, if he had not obtained the consent of his tutores. (D. 15, 1, 1, 4.) There were, however, two noteworthy limits to the remedy of a slave's creditor ; 604 CONTRACT GENERAL CHAPTER. (1) the master had a right to deduct all claims he himself had against the slave (D. 16, 1, 9, 2) ; and (2) he was not liable if the slave gratuitously undertook to answer for the debt of another. (D. 15, 1, 3, 5.) A slave could, however, be a surety if it was for the sake of his own peculmm. (D. 15, 1, 47, 1.) The remedy of the creditor of a slave was the actio de peeulio against the master. It could be brought at any time while the slave was under his master, and for one year after his manumission. (D. 15, 2, 1, pr.) When the amount of the peculium is in question, there is first deducted all that the slave owes to his master, or to anyone in his potestas, and what remains over is alone understood to be the peculium. Sometimes, however, a slave's debt to a person in his master's potestas is not deducted from the peculium, as when the debt is due to a person forming part of that very sldcv^s peculium. Now the bearing of this is, that if a slave owes any- thing to his vicarius that sum is not deducted from his peculium. (J. 4, 7, 4 ; G. 4, 11) Vicari/us is a slave held by another as part of his peculium. There are, besides, certain actions in which we do not seek the entire sum that is owed us, but in which we sometimes obtain the entire sum, some- times less. For example, if we bring an action against the peculium of a son or slave, and the peculium is not less than we seek, then the father or master is condemned to pay the entire sum. But if it is less, then the judex condemns him to pay so far as the peculium. will go. How the word '''' peculium " is to be understood we will set forth in its own place. (J. 4, 6, 36.) Merx Pecvliaris. — When the peculium was employed by the slave, with the knowledge of his master, as capital in business, the liability of the master was somewhat increased. (D. 14, 4, 1,2.) Another action, too, has been brought in by the Prsetor, called t?ibutoria. [It lies against a father or a master, and was established by the Praetor's edict " Concerning retail trade and goods."] For if a slave engages in some special trade with his master's knowledge, and contracts any debts therein, then the Prstor lays down the law thus : — All the capital sunk in the trade and the profits he orders to be shared between the master (if anything shall be due to him) and the other creditors proportionally. The master is allowed to allot the amounts, and therefore if any creditor complains that his share is less than it ought to be, the Praetor gives him this action, called tributoria. (J. 4, 7, 3 ; G. 4, 72, as restored.) The chief differences between the peculium simply, and when it was u«ed in trade [merx pectdiaris), in addition to the mode of distribution, are (1) that if the master forbids the slave making contracts, as by a notice in the shop, he cannot be sued by the actio tributoria, although he is still liable generally in respect of the peculium,. (D. 15, 1, 47, pr.) (2) The actio clc peeulio can be brought against a purchaser of a slave, but not the actio tributoria (D. 14, 4, 10). (S) The actio tributoria is not limited to a year after the manumission of the slave, but is perpetual. (D. 1 4, 4, 7, 5.) A creditor could not bring both actions ; he must elect between them. (D. 14, 4, 12. ) II. Persons under potofas or manus. INCAPACITY OF SONS. 605 As we have made mention above of the action that is brought against the peculium of filiifamilias and of slaves, we must needs call for more careful attention to this action and to the rest that are usually given on the same account against parents or masters. Now, whether it is with slaves or with persons in \!b& potestas of a parent that business is transacted, the rules of ,law that are observed are pretty much the same. To avoid, therefore, a wordy discussion, let us direct our remarks to the case of slave and master, with the understanding that the same remarks apply also to children m ■potestate and their parents. If any special rule is observed in regard to the latter, we will point it out separately. (J. 4, 7, pr. ; G. 4, 69.) But just as we saw, in the case of property, that a son could become a true owner to all intents and purposes {peculium castrense) ; so again, under contract, the disabilities of a son are not so great as those of a slave. One distinction is obvious. The disabilities of a son under potestas were teroporary ; the death of his father released him ; a slave was a slave for ever, unless released by manumission. The distinction is brought out in Adstipulatio. Again, a slave in becoming an adstiptdator acts in vain, although by a stipulation in any other case he acquires for his master. The same rule holds for a person in mancipio, according to the better opinion ; for he is in the position of a slave. , He, again, that is in a. father's potestas, acts not in vain, but he acquires notliing for his parent, as he would by stipulation in any other case. And even against himself an action is available only if he goes out of the potestas of his parent without a capitis deminutio — by his father's death, for instance, or by being himself installed as Flamen Dialis. What we have said must be understood to apply to a filiafamilias and to a wife in manu as well. (G. 3, 114.) 1. A person under pofestos cannot be either creditor or debtor to his paterfamilias. -Again, a stipulation iS' void if made by you with a person in your power ; or conversely, if made by him with you. But a slave can come under no obligation either to his master or ,to anyone else ; whereas filiifamilias can come under obligation to others. (J. 3, 19, 6. ; G. 3, 104.) 2. In respect of other persons, the general rule is that a son cannot be a creditor, but may be a deMtor, and can be sued on his contracts. This makes a marked difference between the . son and the slave. (D. 44, 7, 39.) , (1.) Filiusfamilias as creditor. — The general rule was tliat a son acquired for his father, not for himfielf. We have already seen under what circumstances a son could sue for injuries done •to him (p. 50). He could also sue in 'the action for depositum (D.'16, 3, 19) ; commodatum and the interdict quod vi aut clam 6o6 CONTRACT — GENERAL CHAPTER. (D. 44, 7, 9) ; and generally the innominate equitable contracts. (D.44,7,]3.) (2.) Filiusfamilias as debitor. — When a son makes a promise, he can be sued exactly as if he were a paterfamilias. (D. 45, 1, 141, 2 ; D. 46, 4, 8, 4.) It' he has a pecuUum, his paterfamilias may also be sued. (D. 15, 1,, 44 ; D-. 15, 1, 45.) Gains, son of TitiuSj is a member of a firm. Titius emancipates him. Does this dissolve the partnership, and against whom have the other partners a remedy ? The partnership is not dissolved, although it would have been ii'Gaius had been a slave. CD. 17, 2, 58, 3.) The partners have an action against Titius (so far as Gaius has any peculium) for all obligations incurred before the emancipation. Also Gaius can be sued in respect of all his transactions with the- firm before or after the emancipation. (D. 17, 2, 58, 2.) It must be remembered that in- respect of peculium castrense a son was as perfectly capable of making contracts as- if he- were not under potestas. It is most probable that between' a son and a daughter- under potestas the Roman law recognised no difference in respecfe o-f the capacity to contract. (D. 14, 6, 9,. 2.). III. Women mi tuteh... The rule of law is the same for women in tiitela. (G. 3, 108.) It will be convenient tO' defer this head of- incapacity until the ' ' Perpetual Tutelage of Women" is examined, (See-Div. II..) (b.) Incapacity arising from Mental Weaknessj- I. Mental alienation, {fuviosi, mente capti). A madman can transact no business,, because he does not understand! what he is doing. (J. 3, 19, 8 ;. G..3, 106.) The incapacity of the insane is absolute. They are incapable- of either judging prudently of their own affairs, or of under- standing the- effect of their own acts. They cannot,, therefore,, acquire any rights that involve consent ; they cannot be creditors any more than debtors. (D. 44, 7,, 1, 12 ;, D; 50, IT, 40.) For this purpose, acute insanity (fiiror)' or imbecility (dementia) has the same effect. (C. 5,-4, 25.) In the case, how- ever, of those subject to paroxysms of insanity, separated by lucid intervals, there was no reason why their legal incapacity should be sustained ; and, accordingly, it was held tha/t a person, sometimes insane, could, when- in a rational mood, bind himself and others by contract. (C 4,. 38; 2.) A question arose in regard to those under curators, whether in- a lucid interval the office of curator was only suspended, or whether the return of the patient to sanity, although he was not per- INCAPACITY OF PUPILLI. 607 manently recovered, made the appointment altogether void. Justinian enacted that the curator's office should not be afiected, but that while the lucid interval lasted the curator should refrain from' acting; (C. 5, 70, 6.) II. Persons ander the age- of puberty (impuberes). 1. Could they be creditors t The answer is clearly and indisputably in the affirmative. A i^upillus can- bring, another under obligationi to him even without authority from his tutor. But what we have said- of pupilli is true only of those- that already have some understanding. For an infant, or very nearly so {infmiiiae proxiimts)^^\^^r% little from a madman, htcsnse pttpilti at such an age have no understanding: But" in the case- of those that are not infants, But only very nearly so; for their benefit the law is interpreted very favourably, so that they have the same rights as those that are very near puberty. (J. 3, 19, 9-10 ; G. 3, 107-109.) According tO' th-e text, a child that can speak can be a stipu- lator, but not a proraiser; ai creditor,, but not a debtor. (D. 26, 8, 9, pr.-; C. 8,-39, 1.) 2. Could they be debtors f A piip'iltus can rightly transact- business of any kind, if only his tutor is employed, whenever his authority is needed, as when t\it ptepilltis himself is coming under an- obligation. (J. 3,-19, 9; G. 3,. 107.) But a child under puberty in his parent's potestas cannot, even with his father's authority, come under an obligation. (J. 3, 19, 10.) What legal eiFect, if- any,., belonged to those promises made by children^ under the age of puberty,^ without the sanction of a tutor t Did such promises give rise to- natural obligations, or were they absolutely voidf On this- question may be ranged in controveisy the classical jiirists as well as their modern commentat-ors. Rufinus,- a jurist- who seems-tb have been- a contempoi-ary of Paul and Ulpian, answers the question with an unqualified negative (D. 44,. 7,j59),.an G. 4, 73— as restored.) Lastly, our attention must be called to this, that when it is by the orders of a father or master that a contract has been made, and when the proceeds have been applied for his good, then a condictio may be broaghf directly against the father or master, just as if the business had been transacted with the principal in person. (J. 4, "J, 8.) In the actions de peculio and tributoria the slave is not really agent — he is principal ; and the master may be regarded as a trustee for creditors to the extent of ^e peculium. The master can hardly be considered a principal, when even if he has actually forbidden a contract he can still be sued to the extent oi th& peculium. (D. 15, 1, 29, 1.) 1. Actio quod jussu. 6l6 CONTRACT — GENERAL CHAPTER, Titius, wlio has a usufruct of Stichus, commands liim to buy a house from Sem- pronius. Stiohus does so. Titius and Sempronius can respectively sue each other on the contract of sale. The same result would follow if Titius were a bona fide posses- sor only of Stichus. (D. 15, i, 1, 8.) Stichus belongs to Titius and Gaius. They request him to enter a partnership with another. That person can sue either Titius or Gaius for the whole debts due by Stichus to the firm. (D. 15, 4, 5, 1.) Ratification, after the contract, by the master, had the same effect as a previous command. (D. 15, 4, 1, 6.) 2. Actio de in rem verso. — The action quod jussu is the equiva- lent of mandate ; the action de in rem verso is the equivalent of the actio negotiorum gestorum. It, therefore, lies whenever the slave, an unauthorised agent, has acted in effect for the benefit of his master's property. (D. 15, 3, 3, 2.) It includes all neces- sary or beneficial expenditure, such as cultivating the master's land, repairing his house, clothing or buying slaves, paying the master's debts. (Paul, Sent. 2, 9, 1.) The ratification of the master is not necessary ; it is enough if the slave intended to bind his master. A filiusfamil ias defends an action brought against his father in his absence, and is condemned in costs. The father may be sued for the costs, (D. 15, 3, 10, 1.) A slave or a filiusfamilicts takes money to buy himself food and clothes, not ex- ceeding the allowance made him by his master. Such money is considered as having been spent for the benefit of the master or father. (D. 15, 3, 3, 3.) A sum borrowed by a slave to clear off a debt of his t>wn is not considered to be in rem verso, although the master is thereby relieved from the action de peculio. The reason is that here the slave intends to bind himself, not his master. (D. 15, 3, 11.) Stichus borrows money from Titius and lends it to Gaius. If the transaction was not done for the slave's peculiuin, his master must either pay Titius, or transfer to Titius his right of action against Gaius. (D. 15, 3, 3, 5.) A slave purchases for his master slaves who, he thinks, are required, but are not. The master may be required to take them at valuation, but not to give the price agreed upon. (D. 15, 3, 5, pr. ) A slave borrows money to repair his master's house. Before the master returns, the house is burned down. The master must repay the money, although in the event he got no benefit from the expenditure. It is enough if the expenditure was calculated to benefit him, and was actually incurred for thiit purpose. (D. 15, 3, 3, 8.) A slave ornamented his master's house with frescoes without his order. His master on returning from abroad refuses to pay for them. The master cannot be compelled to pay, but the creditor may take away the frescoes, if he can do so without injuring the house. (D. 15, 3, 3, 4.) Titius gave his slave Pamphilus a «mall farm to cultivate, and some oxen to stock it. These oxen proved unsuitable, and Titius ordered Pamphilus to sell them and buy new ones. The new ones were 5 aurei dearer. Pamphilus never paid the money, but soon wasted all his capital. The seller had an action agauist Titius de peculio for what remained after the debts of the master were paid ; but could he sue him de in rem verso ? Alfenus answers, the oxen are indeed obtained on the master's account, but he must be credited with payment of so much as was got for the first oxen ; be- cause to the extent of their value he gains nothing by the new purchase. But he is liable for the additional 5 cmrei. (D. 15, 3, 16.) AGENCY. 617 The slave oi' son, in cases where the actio quod jussu or actio de in rem verso lies, is truly an agent ; he acts either with express authority, or by an authority implied by law ; he is irresponsible, and the master or father alone can sue or be sued on the contracts. III. The next step takes us out of the family. In two instances a sort of agency was recognised in the case of free- men, as well as of slaves emd filiifamilias. These instances are found where the necessity of a law of agency was most acutely felt, namely, in commerce. 1. The master of a ship (magister navis) (whether a freeman or slave) was an agent to bind the owner (exercitor). On the same principle the Praetor has framed two other actions for the entire amount, one called exercitoria, the other institoria. The exerdtoria may be brought when a man has set his [son or] slave over a ship as master, and when some contract has been made with him relating to the business over which he has been set. [For since that business seems to be contracted by the wish of the father or master, the Prsetor thought it altogether fair to give an action for the entire amount. Nay, even although it is an outsider that one sets over his ship as master, and whether a slave or a freeman, yet that Praetorian action is duly given against him.] The action is called exercitoria, because exercitor is the name for him to whom the daily profits of a ship belong. (J. 4, 7, 2 ; G. 4, 71.) The exercitor need not be owner of the vessel ; he may be a charterer. (D. 14, 1, 1, 15.) The magister or shipmaster is the person placed in command of the vessel. (D. 14, 1, 1, 1.) For what contracts is the owner bound 1 In other words, to what extent does the authority of the captain to contract for the owner extend 1 He may make generally contracts relating to the ship, its seaworthiness and freight. (D. 14, 1, 1, 7.) Sometimes the authority of the captain was defined by the terms of his orders. Thus, if he has authority only to exact the fares and freight, he cannot let out the vessel on hire ; so, vice versa, if he has authority to let the vessel simply, he cannot exact payment of the fares and freight. He may be ordered to take only passengers, in which case he cannot take goods ; or only goods, in which case he has no authority to take passengers. (D. 14, 1, 1, 12.) Lucius Titius made Stiehus captain of his ship. Stichus borrowed money, stating in the written acknowledgment of debt that the money was required to repair the ship. Can the lender recover his money from Titius without proof that the money was actually employed for the puqiose alleged ? Africanus says yes, if the vessel required to be repaired. To require the lender to see the repairs executed, would be asldng him to do the work of the owner. It must be observed, however, that the 6l8 CONTRACT GENERAL CHAPTER. owner cannot be liable for a sum considerably exceeding what is necessary for repair. (D. 14, 1, 7, pr.) A captain borrowed money for necessary repairs, but spent the money without doing anything for his vessel. Is the owner liable for the money borrowed ? If the captain obtained the loan on the understanding that the money was to be applied to repair the ship, and afterwards, changing his mind, used it for a different purpose, the owner is liable. If, however, the captain from the first intended to embezzle the money, and there was no express agreement that the money should be applied for the ship, the owner is not liable. (D. 14, 1, 1, 9.) If there is more than one owner, each is liable to creditors for the whole debts contracted by the captain (D. 14, 1, 1, 25), irrespective of his share. (D. 14, 1, 3.) The actio exercitoria fails to come up to the perfect idea of agency, in two respects ; (1) the creditors of the magister may- sue him or the exercitor in their option. (D. 14, 1, 1, 17.) Thus the agent is not irresponsible. Titius has a slave, Stichus, who is exercitor of a, ship. Stichns appoints Maevius captain. Gains lends money to Maevius. Gains can sue Maevius for the amount. The effect is that the captain is to the creditor a surety for the owner. (D. 14, 1, 5, 1. ) (2) The exercitor cannot sue the debtors of the shipmaster, but, as in the case of mandate, has no direct remedy except against his own agent. To this rule there was but one excep- tion. To encourage the transport of grain, the owners of A^essels engaged in importing grain were allowed by the Praetor, in the exercise of his extraordinary jurisdiction, to sue the debtors of their captains. (D. 14, 1, 1, 18.) 2. An institor was an agent to bind his principal. The ach'o institoria may be brought when a man has set his slave over a shop, or over a business of any sort as manager, and when some contract has been made with him relating to the business over which he has been set. It is called institoria, because persons Set over businesses are called insti- tores. Those two actions, however {exercitoria and institoria), are duly given by the Prastor, even if it is a freeman or another's slave that is set over the shop or business of any sort ; of course because in that case too the same principle of equity came in. (J. 4, 7, 2 ; G. 4, 71.) If a man is liable to an actio exercitoria or institoria, it is held that a condictio can be brought against him directly ; because the contract is understood to have been made by his orders, (J. 4, 7, 8.) The term institor, it is to be remarked, does not correspond to exercitor, but to magister navis. In the actio exercitoria the exercitor is the principal ; but in this case the institor is the agent. It was not necessary that the agent should be in a shop (D. 14, 3, 4) : hawkers or pedlars were institores (D. 14, 3, 4, 5) ; and, generally speaking, any person was an institor who was employed to buy and sell. (D. 14, 3, 3.) Also persons in charge of mules might be institores. (D. 14, 3, 5, 5.) To that may be added a AGENCY. 619 concierge (insularius). (D. 14, 3, 5, 1.) A person employed in lending out money, or in managing sales or letting of land, is an institor. (D. 14, 3, 5, 2.) A shopkeeper sends his slave abroad to buy stock for him. The slave is an institor. (D. 14, 3, 5, 7.) A baker was accustomed to send his slave to a certain locality to sell his bread. The slave, getting payment in advance, embezzled the money. As he was authorised to receive payment, he is an institor for the purpose of dischargiiig the customer. (D. 14, 3, 5, 9.) A fuller, going from home, left one of his men in charge. This man received some clothes, and ran away with them. Was the fuller responsible ? Not if the man was left as a procurator ; but he was, if the man was left as an institor in charge of the business. If the fuller had himself told the customers to trust his workmen, then he is directly responsible on the contract of hire. (D. 14, 3, 5, 10.) A steward or bailiff {viUieus) was not regarded as institor, because his duty was simply to take in the crops, not to buy and sell. But if he, as part of his duty, also buys and sells, he is treated as agent {exem^ilo institoriae actionis) for his master. (D. 14, 3, 16.) To what extent was the principal (dominus) responsible for the contracts of his institor ? Clearly, only when the contract was within the scope of the business entrusted to him. Thus if a person is employed only to buy, he cannot sell ; if only to sell, he cannot buy. (D. 14, 3, 5, 12.) Titius assigned to his slave Stiohus a sum of money to deal in animals. Titius is responsible not only by the actio institoria, but for the stipulations of double penalty, and also for all flaws in the things sold. (D. 14, 3, 17, pr.) Stichus sold oil for his master, and took a gold ring in earnest of the bargain. The ring was not returned after the sale was completed. The master can be sued for the ring, unless the slave was forbidden to sell on credit, and so had no right to give credit and take earnest. (D. 14, 3, 5, 15.) A slave in a shop, not forbidden to borrow money, did so to buy stock and pay the rent of the shop. The lender can recover the money from his master. (D. 14, 3, 5, 13.) A slave empowered only to lend money becomes surety for another's debt. This contract does not bind his master. (D. 14, 3, 19, 3.) Of several principals, each is liable for the whole debts of the institor ; they have, however, as against one another, the rights of partners. (D. 14, 3, 13, 2.) The institor has some, but not all the marks of a real agent. He is one in so far as he must have the authority of his principal. Hence a notice in plain characters forbidding contracts to be made with the manager of a shop, completely exonerated the owner of the shop. (D. 14, 3, 11, 2.) If the notice was legible and in a place where people generally saw it, creditors could not plead that they were unaware of it. (D. 14, 3, 11, 3.) But, in the second place, was the institor himself irrespon- sible "? He could be sued (D, 14, 3, 7, 1), and could also 620 CONTRACT GENERAL CHAPTER. sne. This! so far answers the last question, Was the principal dii-ectly responsible? That he should be directly sued for the debts of his institor, was tjie express object of the Praetorian intervention. Could he sue the debtors of his institor'? If his slave were the institor, there was no difficulty. If anyone else were institor, the principal could compel him to transfer his action against the debtors. (D. 14, 3, 1.) Marcellus, how- ever, said that when a principal could not avoid loss unless by direct action against the debtor, such action would be allowed. (D. 14, 3, 2.) These two actions {exercitoria and institoria) seem at first to have been introduced for the benefit of masters of slaves. The advantage of them was to make the slave in certain cases an implied agent, where it would have been impossible to prove that the contract was specially authorised {quod jussu) by the master. The master was bound to pay the whole debt, and could not escape by surrendering merely the peculium. Never- theless, it often happened that in the same circumstances one of several actions might be available to a slave's creditors. No doubt a man that has contracted by the master's orders, to whom, therefore, the actio exercitoria or institoria is open, may also bring an action de peculio deque eo in rem domini verso. But it would be the height of folly to pass by an action in whicli he can with the greatest ease obtain the entire sum due under the contract, and to reduce himself to the hardship of having to prove that the money has been applied for the master's good, or that the slave has a peculium, and that too so large that he can have the entire sum paid him. A man, too, that has the actio tj-ibutoria open to him, can equally well bring an action depecuUo deque eo in rem verso; and sometimes, certainly, it is for his advantage to do so, sometimes to bring the actio tributoria. To bring the latter may be advantageous, because in it the master is not pre- ferred ; that is, what is due to him is not deducted, but he is in the same legal position as the rest of the creditors ; whereas in the action de peculio what is due to the master is first deducted, and the remainder is what the master is condemned to pay the creditor. It may be an advantage, again, to bring the actio de peculio, because in this action the whole peculium is taken into account ; whereas in the tributoria that part only is reckoned that is employed in the business. Now a man may very well employ in the business a third perhaps of the peculium, or a fourth, or even a mere trifle, and have the greater part in lands or bondmen, or money out at in- terest. According to the advantage to be gained, therefore, each ought to choose either this action or that ; and undoubtedly if a man can prove that the money has been applied for the master's good, he ought to bring the action de in rem verso. All we have said of slave and master must be understood also of the son and daughter, grandson or granddaughter, and the father or grandfather in whose potestas they are. (J. 4, 7, 5-6 ; G. 4, 74-) AGENCY. 621 IV. It thus appears, that while slaves or children under potestas might be agents to burden their masters or fathers with duties, in two cases only could freemen become partially agents. The master of a ship and the manager of a shop were agents to the extent that the persons Avith whom they made contracts could sue their principals directly ; but their agency went no further. We find that in a very small number of cases an action was given against a principal after the analogy of the actio institoria. Titius, desirous of borrowing money from Semprouius, sends Maevius, who receives the money, and promises by stipulation to return it. In this case Sempronius may sue Titius, even if Maevius is solvent. (D. 14, 3, 19, pr.) A. has lent money to B.'s agent {procurator) to pay off a creditor of B., or to release a pledge belonging to B. An actio negotionim gestoi-um lies against B. at the instance of A. ; and A. cannot sue B.'s procurator. (D. 3, 5, 6, 1.) A. 's agent {procurator) appoints an institor. The actio institoria lies against A. (D. 14, 3, 5, 18.) Domitian has given a mandate to Demetrian to accept a loan from Titius. Titius can sue Domitian on the loan as if Demetrian were an institor. A procurator has, by order of the owner, sold a house, and given the usual promise against eviction. The buyer can sue the owner, after the analogy of the actio insti- toria, and so a utilis actio is given to the owner against the buyer. (D. 19, 1, 13, 25.) Nevertheless the procurator can be sued by the buyer it he pleases. (D. 3, 3, 67.) These examples show that under the pressure of commercial wants, the Roman law was gradually pushing towards the full recognition of agency in contracts, and the question arises. Did the Roman law ever come nearer to a true doctrine of agency than in the actiones exercitoria and institoria'? These actions fall short of true agency : (1) in respect that they do not exonerate the agent from liability ; and (2) that although they allow the principal to be sued directly, they do not enable him to sue directly the persons contracting with his agent. Nevertheless it would appear that this was the nearest ap- proach made by the Romans to a law of agency. Savigny contends, that while the old law of non-representation was maintained in regard to the formal contract of stipulatio, yet that in the later Roman law agency was universally allowed in the non-formal contracts. This view has been vigorously disputed by the German authorities that have followed Savigny, and indeed appears to be merely an example of overstrained ingenuity on the part of that distinguished author. The passage upon which Savigny rests is as follows^ : — " Things may be acquired according to either the jus civile or the jus naturale. In the former case we ' Ea quae civiliter adquiruntur, per eos qui in potestate nostra sunt adquirimus, veluti stipulationem ; quod naturaliter adquiritur, sicuii est posscssio, per quemlibct volentibus nobis possidere adquirimus. 62 2 CONTRACT — GENERAL CHAPTER. acquire them through persons in our potestas, as by stipulation ; in the latter, as in the case of possession, through possession by anyone at our wish." (D. 41, 1, 63.) At the first blush this passage bears out Savigny's proposition to the utmost extent he can desire ; but a fair consideration of the passage and context shows that the author (Modestinus) had in his eye the law of property, and not of contract. (1.) This passage occurs under the heading, " Concerning the Acquisition of Property," not under Contract. (2.) In interpreting such passages it is safer to narrow the extent of the proposition to the examples cited, rather than to expand the examples to the breadth of the proposition. (3. ) There is a perfectly satisfactory explanation of the text. It has been suggested that Modestinus wrote Tnancipatio, and not stipulatio, as the example of acquisition by the jus civile. If so, the passage would be quite exact and pertinent in respect of the law of property. When, however, the Digest wa-s composed, the mancipatio no longer existed, and the only example of civil acquisition that Tribonian could insert was stipulatio. This would explain how one of the examples is taken from the law of contract, and the other from the law of pro- perty. (4.) There are passages in which it is expressly laid down that "possession" is the only case where an acquisition may be made by a free person. " Possession," it is said by Diocletian and Maximian, " is the only exception to the undoubted rule of law, that nothing can be acquired through a free person not subjected to another's power," 1 (C. 4, 27, 1.) The passages (D. 44, 7, 11 ; D. 50, 17, 73, 4) may also be looked to. (5.) If the Roman law had really attained to a true conception of agency, the fact must have been patent in many texts. Agency is one of the com- monest instances of contract, and there must have been numerous passages illustrating different phases of the disputes that arise respecting agency, if agency had ever been universally recognised. Savigny thinks that the notion of agency made its way into the Roman law through the consensual element in the non-formal contracts. Thus all the consensual con- tracts could be made by messenger (nuntius). (D. 18, 1, 1, 2 ; D. 2, 14, 2, pr. ; D. 29, 2, 25, 4 ; D. 13, 5, 14, 3.) Savigny observes that it is difficult, if not impossible, to distinguish between a " messenger " in these cases and a true agent. Suppose I bargain with a horsedealer, and refuse his price, but afterwards, when he has gone away, send a messenger to say that I agree to the price, it is obvious that I, and not the messenger, will be able to sue the horsedealer for the horse. Suppose, again, I send a person to buy a particular horse, telling him not to go beyond a certain price, is that person an agent or a messenger ? The answer to Savigny is, that although, upon particular states of fact, a doubt may arise whether a person is an agent, yet that there is a broad distinction between a messenger (nuntius) and an agent. A messenger, like a letter, is simply a medium of communication ; he exercises no judgment of his own, but merely repeats what is told him. An agent, on the other hand, acts on his own judgment, of course within the limits of his instructions. These instructions may be minute and precise, leaving little to the exercise of the agent's judgment, but unless they do away with the necessity of his exercising his judgment altogether, the agent is distinguishable from a mere messenger. This distinction is clearly stated in a text much relied on by Savigny. " Although it is through a free person that I have made this constitutum with you, the fact that we are acquiring through a free person will be no hindrance ; because he seems in this case to be acting only as a servant." ^ (D. 13, 5, 15.) This passage clearly shows that in the ' jExcepta possessionis causa, per liberam personam quae alterius jure non est suhdita nihil adquiri posse, induhitati juris est. 2 M licet libera persona sit, per quern tibi constitui, non erit impedimentum quod per liberam personam adquinmus; quia ministerium tantummodo hoc casu praestare videiur. AGENCY. 623 Koman law a distinction, not to be got over by any ingenious refinement, was drawn between the mere messenger and the true agent. The different fate of the law of agency in property and contract is worthy of remark. Agency made its way into the law of property through " possession,'' and it found its way into possession from the necessity of allowing a possessor to retain by another, as by a tenant. If one could keep possession by a tenant as agent, so one could acquire possession by the same means. Thus it was that possession, and through it property, could be acquired or lost by an agent. The history of the law of contract was widely different. The law of agency was created by the Praetor through the expan- sion of a principle of the jus civile. Slaves and sons could acquire for their masters or fiithers according to the jus civile, and by enabling them to bind their masters or fathers, the Praetor established a law of agency that was probably found to meet nearly all the necessities of the case. In accordance with the unfailing tradition of Praetorian innovation, the law of agency never advanced far beyond the original lines. Free- men were allowed as agents in respect of the actiones exercitoria and institoria, but beyond that the Prsetor did not go. His measures seem to have been sufficient for the public wants, and Justinian found no occasion to introduce one of those glittering generalisations of which he was so fond, and by a stroke of the pen convert the contract of mandate into a true agency. In respect, therefore, of agency, the Koman law falls conspicuously short of the systems of law prevailing in modern Europe. Fifth — Cases analogous to Agency. We have now to consider the effect of an agreement by A. that B. shall receive from, or pay something to C, when A. has no authority from C. to make such a bargain. Further, a stipulation is void if we stipulate that something shall be given to a man to whose power we are not subjected. And hence the question has been raised, how far a stipulation is vahd in which a man stipulates that something shall be given to himself and another to whose power he is not subjected. Our teachers think that it is binding in every point, and that the entire sum is due to the stipulator alone, just as if he had not added the name of an outsider. But the authorities of the opposing school hold that half only is dufi him, and that as regards the stranger's portion the stipula- tion is void. ■ They cite the parallel case of a legacy left to two persons ^er damnaiionem. In that case, if one is wanting, his share is not sought 624 CONTRACT — GENERAL CHAPTER. for his co-legatee, but remains in tlie inheritance as not being due. Clearly this is a like case. (G. 3, 103, as restored.) If a man undertakes that another shall give or do anything— as, for in- stance, that Titius will give 5 aurei — he comes under no obligation. But he does if he undertakes that he will get Titius to give them. (J. 3, 19, 3-) If a man stipulates for a person to whose power he is not subjected, it is in vain. Clearly, however, payment can be bestowed even on an outside person ; as when a man stipulates thus : — " Do you undertake to give me or Seius ? " so that the stipulator acquires an obligation. To Seius, however, payment may rightly be made, even against his will, so that the debtor comes to be actually freed at law ; but the other creditor will have against Seius an actio majtdati. But if a man has stipulated that 10 aurei shall be given to himself and another to whose power he is not subjected, the stipu- lation will indeed be valid ; but whether the whole sum that was brought into the stipulation is due, or only half, has been doubted. It is now held, however, that not more than half is acquired for him. If, again, you have stipulated for a person subjected to your power, you acquire for yourself; because your voice is as your son's, just as your son's is as yours in those things that can be acquired for you. (J. 3, 19, 4.) No one, as has been said above, can stipulate for another. For obliga- tions of this sort came in to enable each man to acquire for himself what he had an interest in. But if the thing is to be given to another, the stipulator has no interest. Evidently, then, if one wishes to do this, it will be well for him to stipulate for a penalty ; for then, unless all is done that the terms of the stipulation include, the stipulation begins to be binding for a penalty, even though it is to be paid to a man that has no interest. For when one stipulates for a penalty, no investigation of his interest is made, but all that is asked is what is the amount set down in the condition of the stipulation. If, then, a man stipulates that something shall be given to Titius, it is in vain. But if he adds a penalty, " Unless you give it, do you undertake to give so many aurei f " then the stipulation begins to be binding. If, however, a man stipulates for another when he himself has an interest, it is held that the stipulation is valid. For if he that began to administer the affairs oia.piipillus as tutor, retires in favour of his {€Ao\i-tutor, and stipulates that the property of Xh.e. pupilhis shall be safe,— then, since it is the stipulator's interest that what he has stipulated for should be done (since he would himself have been under obligation to the pupillus if he managed affairs ill), the obligation binds him. If therefore a man stipulates that something shall be given to his procurator, the stipulation will come into force. And so, too, if he stipulates for his creditor, when he himself has an interest — to avoid bringing a penalty into play, for instance, or having his lands given in pledge sold off — the stipulation is valid. Conversely, he that has promised that another will do something, seems not to be liable unless he has himself promised to pay a penalty. (J. 3, 19, 19-21.) I buy a farm for myself and Titius. The addition of Titius is treated as sur- plusage, and I am entitled to the whole farm. (D. 18, 1, 64.) Seius stipulates for a farm to be given to himself or Titius. The farm is delivered to Titius. Seius has still an ■ action to obtain a promise against eviction, and he can recover the farm from Titius by actio mandati. But if Seius' intention was to make a gift of the farm to Titius, the promiser is released by delivery to Titius. (D. 45, 1, 1 31 , 1. ) CASES ANALOGOUS TO AGENCY. 625 Titius and Maevius jointly owe a sum to Gaius. At the request of Maevius, Gains agrees to release both Titius and himself. Afterwards Maevius dies, and Titiua becomes his heir. Titius cannot, even if he afterwards becomes heir to Maevius, claim the benefit of the release, because the agreement was not made for him. (D. 2, 14, 17, 4.) " Do you promise for yourself and Titius your heir to pay 1 aurei f " Titius is one of two heirs. He is not obliged to pay the whole, for his name is treated as surplusage. (D. 45, 1, 56, 1.) A. stipulates that a usufruct of a farm shall be given to himself aTid his heir. The heir can claim the usufruct by an action on the stipulation. (D. 45, 1, 38, 12.) A. stipulates that neither B. (the promiser) nor his heir Seius shall hinder him in using a certain right of way. This binds not only Seius but his coheirs. (D. 45, 1, 131, pr.) Sempronius is surety for Galbus for 100 aura-, Galbus makes a verbal agreement with the creditor to release Sempronius. Can Sempronius plead that agreement if he is sued by the creditor? Paul says yes. (D. 2, 14, 27, 1.) Suppose Galbus had obtained a release for himself, without mentioning Sempronius. Unless there was a special exemption, Sempronius is released also, because otherwise, if he paid, he could compel Galbus to repay him, who would thus be no better for his release. (D. 2, 14, 22.) A tutor agrees with a creditor of his pupillus that the creditor shall waive a right of action against the pupilius. This gives the pupillus a good defence, if an action is brought. (D. 2, 14, 15.) Titius promises a dos to Cornelia, daughter of his filiusfamilias Gaius. After- wards by verbal agreement he obtained a release for himself and also for Gaius. This is valid for Gaius, because the agreement was made for him in his capacity of heir to Titius. (D. 2, 14, 33.) Maevius has agreed by stipulation to build a house for Julius. Maevius hires Titius to build the house for Julius. This is valid, because Maevius had an interest under contract in the execution of the work. (D. 45, 1, 38, 21.) Gaius has promised to Titius, under a penalty, the farm of Maevius. Gaius stipu- lates with Maevius to deliver it to Titius. This is valid. (D. 45, 1, 38, 21.) The daughter of Titius died in marriage, and Titius agreed with her husband as follows : — One-half of the dowry to remain with him as a provision for the son of the marriage ; the other half to go to the grandson of Titius, if he were alive, otherwise to Julian. Titius can sue the husband for damages for not giving the half to Julian. (C. 8, 39, 3.) A. makes a gift to B. of a house for ten years, and B. accepts it on the understanding that at the end of the period he will give it to C. At first C. had no right to sue, as he was not a party to the contract ; but some time before a.d. 290 a utiZis actio was given to C. to recover the property from B. (C. 8, 55, 3.) A. deposits property with; B., and B. undertakes to give it to C. on his return. C. had a utilis actio depositi, {a.d, 293.) Titius lends money of his own on account of Maevius as and for the money of Maevius. MaeviuB is wholly ignorant of the transaction. Maevius, nevertheless, can recover the money by condictioi. (D. 12, 1, 9, 8.) Chrysogonus, a slave-steward of Flavius Candidus, wrote in the presence of his master, who signed the vmting and added his mark, that he had received from Julius- Zosas, agent for the absent Julius Quintilianus, a loan of WW denarii. Zosas, afreed- man of Quintilian, and acting for him in his absence, stipulated for the return of the loan to Quintilian or his heirs before the kalends of next November ; Candidus promised. Julius ZosaS' also- stipulated, in the event of non-payment, for interest — naming 8 deiiarii. Candidus promised, and subscribed his name. In this case the contract was void, because the stipulation was made by Zosas for repayment to Quin- 2 R 626 CONTRACT — GENERAL CHAPTER. tilian ; but as no name waa mentioned for the interest, Zosas could sue for it, and was compellable to hand over the proceeds to Quintilian. Why this result ? If there had been no stipulation at all, the agreement would have been valid. Whenever a loan is made, with the understanding that it is to be returned to a given person, whether that person actually delivered that money or not, or whether it was his money or not, in any case he is entitled to repayment. This is easily understood, because the duty of the borrower arises from the actual receipt of the money, and it is perfectly im- material to whom he is directed to return it. But unluckily, in this case, the equitable obligation was merged in the stipulation. For when a loan is actually given, and a stipulation made for its return, only one obligation arises, namely, that upon the stipulation. {D. iS, 1, 126, 2.) TRANS VESTITIVE FACTS (Novatio). In contract, the transvestitive facts present a certain degree of complication. There may be a change in the person of the creditor, or in the person of the debtor, or in the nature of the obh'gation. Suppose A. owes B. 10 aurei as the price of a horse. If now B. transfers to C. his right to the 10 aurei, we have a change in one of the elements, the two others remaining constant. The creditor is changed, but the debtor and the debt remain the same. That is one kind of transvestitive fact. If, again, A. induces B. to accept D. as his debtor by- stipulation instead of himself, we have another kind of change. A new debtor is substituted, and in substituting him the debt is turned into a stipulation from a sale. In this case the person of the creditor alone remains constant. Lastly, both B. and A. may remain, but the nature of the obligation may be altered; as if B. stipulates with A. for the 10 aurei, and so merges the contract of sale in the stipulation. These three kinds of transvestitive facts are thus named. The substitution of a new creditor is by cessio nominum vel actionum. The second change has no other name than novatio (D. 4, 4, 27, 3) ; but the substitution of a new debtor has the specific name of expromissio or delegatio. First — Substitution of New Creditoe (Cessio nominum vel actionum.) Definition. The object of a substitution of a new creditor was, as far as possible, to turn mere debts, as well as property, into marketable commodities that could be bought and sold. The Roman law favoured this increase in the value of rights arising from contract, allowing a similar latitude in the transfer of a NOVATIO. 627 mere action in rem (C. 4, 39, 9), and also of a sum due by way of legacy. (C. 6, 37, 18.) Eights and Duties. A. Duties of Old Creditor to New Creditor. 1. In the absence of express agreement, a person selling a right in personam (tiomen) must transfer all his subsidiary and accessory rights against the debtor. (D. 18, 4, 23, pr.) A filiusfamilias owes a sum to Titius. Titius transfers his right to Gaius, Titiua must also transfer his action against the paterfamilias. (D. 18, 4, 14, pr.) A vendor of a nomen must transfer all mortgages, even those acquired after the date of the sale. (D. 18, 4, 6.) 2. In the absence of express agreement, a vendor of a nomen does not warrant the solvency of the debtor, but only that the sum alleged to be due is really due. (D. 18, 4, 4.) B. Duties of Debtor to New Creditor. 1. The new creditor, after giving notice of the transfer to the debtor, can, and the old creditor cannot, sue the debtor. If, however, notice has not been given, the debtor must pay at the suit of the old creditor, but the old creditor in that case must transfer what he gains to the new creditor. (C. 8, 17, 4; C. 8,42,3.) 2. The debtor can avail himself as against the new creditor of all the defences he had against the old creditor. Teansvestitive Facts. 1. The Mode of Transfer. Obligations, no matter how contracted, do not admit of any form of transfer. If I wish what is due to me to become due to you, I cannot bring it about in any of the ways by which corporeal things are transferred to another. But it is necessary that by my orders you should stipulate with him ; and the result is that he is freed from liability to me, and at once becomes liable to you. This is called novatio obligaiionis. Now, without this novatio you will not be able to sue in your own name, but must take proceedings, like an attorney or procurator acting on my behalf {ex persona mea). (G. 2, 38-39.) Until the time of Antoninus Pius a transfer could be effected only by novatio, or by the old creditor giving the new creditor a mandate to sue the debtor in his name. Suppose Gaius owed money to Titius, and Titius wished to transfer his claim to Maevius, he gave Maevius authority to sue Gaius in his name (D. 17, 1, 8, 5 ; D. 46, 3, 76), {praestare vel mandare 628 CONTRACT GENERAL CHAPTER. actiones). Under the formulary system this was effected by putting the name of the transferrer in one part of the formula, and of the transferree in another ; thus, " if it appear that Gaius owes Titius 10 aurei, then let the judex condemn Gaius to pay 10 aurei to Maevius." (G. 4, 86.) In this case Maeviusis called attorney for himself (procMmio*- in rem suam). (D. 2, 14, 13, 1.) This system was necessarily imperfect, for until the litis contes- tatio the assignee of the claim (nomen) had no direct relation with the debtor. The next step was taken in the case of a sale of a hereditas. Antoninus Pius enacted that direct actions {utiles actiones) should be given between the buyer of the inherit- ance and the creditors and debtors of the estate. (D. 2, 14, 16 ; C. 4, 39, 1.) Between the time of Antoninus Pius and Dio- cletian, this priority was extended to the sale of any sum due (nomen). (C 4, 15, 5 ; C. 4, 39, 7) : and also to actions in rem. (C. 4, 39, 9.) 2. The Consent of the Debtor was not required to make the transfer valid, nor was it necessary that he should even know of the transfer. (C. 4, 39, 3.) A debtor paying his creditor without notice of the assignment, could not be compelled to pay over again to the assignee. (C. 8, 17, 4.) 3. liestrictions on Transfer. Generally, there was no impediment to a transfer, except in the case where the transfer was made in order to vex a debtor with a more powerful creditor. (C. 2, 14, 2.) But Anastasius introduced a more effective protection to debtors. The evil that he redressed was the sale of debts for less than their amount to persons that made a trade of harassing debtors. He enacted that no transferree of a debt should recover more from the debtor than he had paid to the transferrer, with lawful interest. The exception was when coheirs or legatees divided debts among them, assigning to them a value in the division below their real amount. Anastasius did not interfere with transfers made by way of gift (C. 4, 35, 22), and this opened the door to evasion. Part of the debt was transferred for a sum intended really to be the price of the whole, and the residue of the debt was transferred as a gift. Justinian put a stop to this evasion by enacting that if a person meant to transfer a debt as a gift, he must give the whole, and not a part of it ; and when anything was paid at all, the transferree was prohibited from receiving any more. (C. 4, 35, 23.) NOVATIO. 629 Second — Merger {Novatio). Merger is the substitution of a new obligation for an old.i Gaius gives Titius a loan of 1 00 aiirei, and as part of the transaction requires Titius to promise the return of the money by stipulation. Is this a novation of the loan by the stipulation ? If there were no stipulation, still Titius would be bound to restore the money lent (as Tnutuwm) : is not this equitable obligation then merged in the subsequent formal contract ? Ulpian and Pomponius regard the stipulation as the principal obligation, and the payment of the money as merely the performance of the tacit condition upon which the stipulation is made. If an interval of time elapsed, and the parties at first relied upon the equitable obligation arising from the loan, then the making of a stipulation would undoubtedly be a novation. (D. 46, 2, 6, 1 ; D. 46, 2, 7.) A slave receives a loan of 5 aurei, and after being manumitted promises to the borrower by stipulation to return the 5 aurei. This is a novation, although the loan created only a natural obligation upon which, after manumission, the slave could not have been sued. (D. 46, 2, 1, 1.) 1. Forms of Novation. Two contracts, and two only, had the effect of merging prior debts, namely, stipulation and the literal contract (expensilatio). As regards the latter, it is suffi- cient to refer to Gaius. (G. 3, 128-130.) When it fell into disuse, the stipulation remained the only contract by which novation cou.ld be made. Maevius and Cornelius enter into a partnership to teach Grammar and share the profits. The agreement was concluded in writing, in these words : — " The above-mentioned things, it is agreed, shall be given and done, and nothing contrary to them ; and if anything is not done according to this agreement, 20,000 sestertii shall be paid." This is a stipulation as to the penalty only. There is, therefore, no novation of the agreement, but each can sue the other by the action for partnership (attio pro socio). If it had been a stipulation to give and do in terms of the agree- ment, the actio pro socio would have been merged in the action on the stipulation, (D. 17, 2, 71, pr.) 2. The stipulation of the identical subject-matter of a pre- vious contract had the effect of novation, only when it was intended to have that effect. Before the time of Justinian this question was determined by certain legal presumptions. In some cases such an intention was inferred ; in others the presumption was rejected. If it is the same person with whom you afterwards stipulate, novation takes place only if there is something new in the later stipulation ; a con- dition, perhaps, or a day, or a surety [or sponsor] added or withdrawn. (J. 3, 29, 3 ; G. 3, 177.) But what I have said about the sponsor is not a settled point ; for the ^ Novatio est prioris dehiti in aliam obligationem vel civilem vel naturalem transfusio atque translatio : hoc est, quum ex praecedenti causa ita nova constituitur ut prior perimatur. (D. 46, 2, 1, pr.) 630 CONTRACT — GENERAL CHAPTER. authorities of the opposite school hold that to add or withdraw hifn does nothing to make a novation. (G. 3, 178.) Gaius stipulates with Cornelius for a carriage-road, and afterwards for a foot- path. The second stipulation is void. But if he had stipulated first for a footpath {iter), and then for a waggon-road {actus), there would have been a novation. (D. 46, 2, 9, 2.) Gaius stipulates for the Cornelian farm, and afterwards from the same person for its value {quanti fundus est). As the objects of the first and the second stipulation are different, the one being for a farm, the other for its value, there is no novation, unless specially so intended. (D. 46, 2, 28.) Gaius stipulates for a ship to be built, and if it be not built, for 100 aurei. If these two terms are taken as independent promises, then, supposing the ship was not built, Gaius could sue for the ijenalty, and afterwards for the non-performance of the contract to build. The second, however, is taken as a novation of the first, and thus the penalty is alone recoverable. (D. 44, 7, 44, 6.) In saying that if a condition be added this makes a novation, we must be understood to mean that this is so if the condition is fulfilled. If it is not, but fails, then the former obligation still continues. (J. 3, 29, 3 ; G. 3, 179) But let us see whether he that brings an action on that score cannot be repelled by an exceptio of fraud or of agreement {pacti conventi) ; whether in fact this does not seem to have been done between them on the under- standing that the thing should be demanded only when the condition in the later stipulation was fulfilled. Servius Sulpicius, however, thought that novation takes place at once, even while the condition is still in suspense, and that if the condition fails, no action can be brought on either ground, and that thus the property is lost. As the result of this view he also gave an opinion, that if a man stipulates with a slave for what Lucius Titius owes him, a novation takes place, and the property is lost, because no action can be brought against the slave. But in both these cases the law in use is different. For novation no more takes place in these cases than it would if, for a debt you owe me, I were to stipulate with an alien by the word SPONDES (Do you undertake ?), though he can take no part in a sponsio. (G. 3, 179.) When the obligation merged is conditional {sub conditione) , the obligation in which it is merged is not binding until the condition is fulfilled. (D. 46, 2, 14, 1.) So, on the other hand, if the obligation merged is unconditional, and the stipulation is condi- tional {sub conditione) no novation takes place until the condition is fulfilled. {D. 46, 2, 8, 1 ; D. 46, 2, 14, pr.) The ancients agreed that novation took place when that was the intention of the parties in entering into the second obligation. It was thus doubtful when they did so with that intention, and certain presumptions on this point were accordingly brought in at various times and in various cases. For this reason our constitution was issued, which determined most clearly that novation took place only if it was expressly declared by the contracting parties that this was the aim of their agreement. But if not, then both the original obligation remains and the second comes in besides ; so that an obligation remains on two grounds, as our constitution decides, and as may be more clearly learned by reading it. (J. 3, 29, 3 a.) This constitution (C. 8, 42, 8) applies to delegatio or exprommissio as well as to merger. NOVATIO. 63 1 Third — Substitution op a New Debtor. — Novatio, Delegatio, Expromissio, Intercessio. Delegatio is when a debtor gives a creditor a new debtor to take his place. It also applies to a simultaneous change of debtor and creditor, the cause of obligation alone remaining the same. Thus it is delegation when a debtor of B., by the order of B., gives C. as debtor to D. (U. 46. 2, 11, pr.) Further, novation takes away an obligation, as when you are in debt to Seius, and he stipulates with Titius for payment. For when a new person comes in a new obligation arises, and the first obligation is taken away and passes into the latter, — so much so, that sometimes, even although the later stipulation is useless, the first is taken away by the legal effect of novation. For instance, if Titius stipulates with a third party after his death, or with a woman or a pupillus, acting without authority from his tutor, for payment of your debt to him, in that case the property is lost. For the former debtor is freed, and the later obligation is no obligation at all. But the rule of law is not the same if a man stipulates with a slave ; for then the earlier debtor remains bound, just as if no stipulation had afterwards been made. (J. 3, 29, 3 ; G. 3, 176.) B. owes money to A., andC. to B. B. delegates C to A. The effects are, (1) B. is released from his debt to A. ; (2) C. is released from his debt to B. (C. 8, 42, 3) ; (3) C. is debtor to A. in place of B. A. owes B. money. A. fraudulently induces C. to become debtor to B. in his stead, and accordingly C. makes the necessary stipulation, C. cannot plead the fraud com- mitted by A. when sued by B. (D. 44, 4, 4, 20.) A. owes money to B. C owes money to A., but can defeat A. by a defence of fraud. C, however, allows himself to be delegated to B. in place of A. C. cannot resist the action of B., even if he allowed himself to be delegated by mistake, but he has an actio mandati against A. for the amount. (D. 46, 2. 12.) A. owes B. money. C. owes A. nothing, but wishing to oblige him, becomes his delegate by stipulation. B. sues C. Can C, inasmuch as his intervention is gratuitous, plead that he ought not to be compelled to pay more than he can afford {ut quatenus f mere potest condemnetur) 1 No, although he could so defend himself as against A. (D. 46, 2, 33.) A. thinlts he owes money to B., but does not. C. thinks he owes money to A., but does not. C, by the order of A., promises to pay to B. the sum A. thought he owed him. In this case B. cannot compel C. to pay, but must on demand give him a formal release from the stipulation. (D. 39, 5, 2, 4 ; D. 44, 4, 7, pr.) A. owes money to B. C. thinks he owes money to A., but does not. C. is delegated to B. as a debtor of A. Can C. refuse to pay B. ? No ; his only remedy is asainst A., for the money as paid by mistake. (D. 46, 2, 13.) 1. Novation or delegation was made either by stipulation or (when it existed) by expensilatio, or by litis contestatio. (D. 46, 2, 11, 1 ; D. 13, 5, 24.) Titius owes money to Seius, and Maevius to Titius. Titius being pressed by Seius, 632 CONTRACT GENERAL CHAPTER. gives him a mandate to sue Maevius. Until Seius sues Maevius, or accepts payment of part of the debt from him, or informs him of the mandate, there is nothing to hinder Titius from suing Maevius. But if Maevius is delegated by stipulation to Seius, Titius is at once released from Seius, whether Seius receives anything from Maevius or not. (0.8,42,3.) Titius asks Sempronius, "Do you promise to pay me what Gains and Seius owe me ?" The debt of Gains is quite unconnected with the debt of Seius. But, never- theless, the effect of the stipulation is to relieve Gains and Seius, and put Sempronius in their place. (D. 46, 2, 34, 2 ; D. 46, 2, 32.) 2. Although the consent of a debtor was not necessary in the cession of actions, the consent of the creditor was essential to delegation. (C. 8, 42, 1.) {Nee creditoris creditori quisquam invitus delegari potest.) (C. 8, 42, 6.) The reason is manifest. If a new debtor could be substituted without the consent of the creditor, an insolvent might be foisted upon him. 3. There must be an intention to make a novation. Gaius is a creditor of Titius for 10, and of Seius for 15 aurei. He stipulates with Attius, who promises to pay what either Titius or Seius owes him. Paul says this is a novation of both debts. (I). 46, 2, 32, pr.) Marcellus held that the stipulation liberated neither Titius nor Seius, but that Attius could choose for which he would pay, and so determine who should be released. (D. 46, 2, 8, 4.) Celsus, who so far agrees with Marcellus, put it, however, on the right footing. He says if the intention was, as the words seem to express, to give Attius "choice," there is no novation ; but if the understanding was that Attius was to pay for both, then both are at once released. (D. 46, 2, 26.) Gaius promises a dowry to Titia, the wife of Maevius. Afterwards Sempronius, by stipulation with Maevius, promises a dowry. Gaius is relieved, and Sempronius becomes bound by the stipulation. The presumption is against any intention to double the dowry of Titia. If another agree to pay my debt, he releases me, if such was the intention ; if not, he becomes a surety, and releases me only by payment. (D. 46, 2, 8,5.) Calpurnius stipulates with Telemaohus for the farm of Sempronius, and afterwards with Licinius, for the same farm, reserving the usufruct to Lieinius. This is not a novation, but if Licinius delivers the farm, keeping the usufruct, Telemaohus must give the usufruct. If Telemaohus gives the farm, Licinius is released. (D. 45, 1, 66, 7.) 4. In expromissio the same rules applj as in merger, when either contract is conditional. (D. 46, 2, 14, 1 ; D. 46, 2, 5 ; D. 46, 2, 8, 1.) DIVESTITIVE FACTS. The divestitive facts of contract may be grouped in five classes. The first class is " Actual Performance, or its Equiva- lents." The second class consists of the modes of "Release:" the debtor has not performed his duty, but the creditor waives his right. The third group is Prescription, or the extinction of obligations by lapse of time. The fourth class is " Coiifusio," SOLUTIO. 633 or the extinction of au obligation when creditor and debtor become one and the same person. This mode occurred in inheritance. Lastly, an obligation was extinguished when an action was brought to enforce it {litis contestatio). First — Actual Performance and its Equivalents (Solutio). I. Actual Performance (Solutio). Every obligation may be removed by the discharge of what is due, or if the creditor consents, of something else in its room. [But it is a question in this case whether (as our teachers hold) the debtor is legally freed ; or whether (according to the view taken by the authorities of the opposing school) he is still legally bound as before, but ought to defend himself against the claim by an exceptio doli mali.'] It matters nothing who discharges it, whether the debtor, or some one else for him ; for he is freed even if some one else discharges it, and that whether the debtor knew it or not, and even if it was done against his will. Again, if the principal discharges it, those that came in on his behalf are thereby freed. Conversely, if the surety dis- charges the obligation, not only is he himself freed, but his principal as well. (J- 3> 29, pr. ; G. 3, 168.) (I.) Payment of Whole Debt. The term " solutio " is sometimes used in a larger sense, not merely as equivalent to actual performance (D. 50, 16, 176), but to every divestitive fact (liberatio). (D. 50, 16, 47 ; D. 46, 3, 54.) The following points in regard to Actual Performance deserve special notice. 1. Generally, what amounts to or falls short of performance. 1°. When the promise is of personal service, performance by another than the promiser is not performance. Thus, if one has promised with his own labour to build a house, or make a boat, or the like, and has a sxirety, performance of the work by the surety, without the consent of the stipulator, does not acquit the promiser. (D. 46, 3, 31, pr.) 2°. When the contract is for delivery of the ownership of a thing, the promiser cannot obtain release by delivering some- thing that cannot be the undisputed property of the receiver. (D. 50, 17, 167.) A creditor is entitled to the very thing- promised, and is not bound to accept what the debtor may think a fair equivalent. (D. 46, 3, 99.) An exception was introduced by Justinian. In certain cases a creditor was required to take land, in payment of his debt, at a fair price, unless he could find a purchaser for it. (Nov. 4, 3.) A lender is not bound to accept in lieu of payment a debt due to the borrower by 634 CONTRACT — GENERAL CHAPTER. another person. (C. 8, 43, 16.) If the lender, however, consents, the borrower is released. (0. 8, 43, 17.) Gaius promised Titius gold, and paid him in bronze. Gaius is not discharged, but he is not bound to give Titius the gold, unless Titius is willing to give him back the bronze. (D. 46, 3, 60,) Gaius has promised by stipulation either Sticbug or Pamphilus. In a fit of passion he wounds Stichus. The stipulator is not obliged to take Stiohus, but may insist upon obtaining Pamphilus. (D. 46, 3, 33, 1.) Sempronius has agreed to give Eros to Titius, but Eros is hypothecated to Maevius for 5 aurd, Titius receives Eros in ignorance of the hypothec. Can he, on finding it out, sue Sempronius ? Yes, because Sempronius has not performed his contract. (D. 46, 3, 20.) Gaius owes Maevius 10 aurei. Maevius agrees to accept Arethusa in payment. Titius has, unknown to Maevius, a usufruct of Arethusa. Maevius can sue Gaius for the 10 aurei without waiting until Titius actually claims his usufruct. (D. 46, 3, 69.) Gaius .agrees to give Titius the slave Stichus, the property of Maevius. Titius acquires the ownership of Stichus by usucapio. Gaius is released. (D. 46, 3, 60.) Julius has by stipulation promised to give Pamphilus, who belongs to Sempronius. Sempronius dies, leaving to Pamphilus his freedom conditionally. Julius delivers Pamphilus. Is this a valid discharge, when Pamphilus, on the happening of the con- dition, acquires his freedom ? Yes, because in this case, if Pamphilus had been freed (as will be seen presently, p. 638), Julius would have been released. (D. 46, 3, 33 pr. ; D. 40, 7, 9, 2.) Julius promises a slave. He gives Stiohus a statvliher. This is not a good dis- charge (D. 46, 3, 72, 5) ; and the creditor, without waiting for the enfranchisement of Stichus, can sue Julius. (D. 46, 3, 38, 3.) 2. As stated in the text, payment may be made by a stran- ger without the consent or knowledge, and even against the wishes, of the debtor. This is au example of the principle that without a man's consent one may enrich but not impoverish him. (D. 46, 3, 23 ; D. 46, 3, 53 ; D. 3, 5, 39.) The payment, however, must be in the name and on account of the debtor. (D. 46, 3, 17.) 3. Who can accept payment, and give a valid discharge ? Throwing out of account the case of tutores, curators, and the like, we may say generally that only the creditor, or, if the creditor is dead, his heirs, or some person authorised by them, can accept payment (D. 50, 17, 180), unless in the contract the name of some other has been specially inserted, to whom pay- ment could be made. (D. 46, 3, 12, 1.) A procurator — that is to say, a person specially authorised to accept payment, or one to whom the entire affairs of another have been entrusted — can give a valid dis- charge (D. 46, 3, 12, pr.), but not a person engaged simply to conduct a lawsuit. (D. 46, 3, 86.) Gaius requests Titius his debtor to pay the amount of his debt to Seia, the wife of Gaius, intending to make her a gift of the amount. Although Seia, in consequence of the rule prohibiting gifts between husband and wife, did not become owner of the money, still Titius was released. (D. 24, 1, 26, pr.). SOLUTIO. 635 Lucius Titius had a claim against Seius for 400 aurei on 2 cliirographa ; one for 100, and the other for 300. Titius wrote to Seius asking him to send the amount of one of the chirographa (for 100) by Maevius and Septicius. Seius sent by them also the 300 due on the other chirographum. Seius is discharged for the 100, but not for the 300, unless Titius actually receives the money or ratifies the payment. (D. 46, 3, 89, 1.) Maevius stipulates for 10 aurei to himself or a slave to be given to Titius. If a. slave is given to Titius, the promiser is released ; but until that is done, Maevius can sue him for the 10 aurei. (D. 46, 3, 34, 2.) Titius cannot sue for the slave, neither can he release the promiser, except by actually receiving the slave promised. (D. 46, 3, 10.) Nor can payment be made to the heirs of Titius. (D. 46, 3, 81, pr. ; T). 45, 1, 55.) Julius stipulates for the payment of 10 aurei to himself or to Stiohus, the slave of Sempronius. Payment may be made to Stichus, but not to Sempronius, who cannot give a valid discharge. Only the person named can accept payment. (D. 46, 3, 9, pr. ) A stipulation to give 10 aurei to A. (the stipulator), or to B., if a certain event happens, is good ; so that, if the event happens, B. as well as A. can give a valid discharge. (D. 46, 39, 8, 4. ) But a stipulation to give 10 aurei to A. (the stipulator), if a certain event happens, or 1 aurei to B., is void unless the event happens. If it does, either A. or B. can receive payment ; if it does not, neither can. (D. 45, 1, 1 41, 7-) " If my ship comes from Africa within three months will you give me or Titius 100 aurei?" Here the condition is ascribed to both, and if it is fulfilled, either can give a valid discharge for the money. (D. 45, 1, 141, 7.) (II.) Payment of Part of the Debt. Could a creditor be compelled to accept a part on]}^ and not the whole of his debt 1 This question, we are told, gave rise to a difference of opinion, but it was held to be in the jurisdic- tion of the Prsetor to diminish lawsuits, by requiring creditors to accept part as a discharge of part, of course not of the whole of the obligation. (D. 12, 1, 21.) (III.) Apportionment of Payment among Several Debts. When the same debtor owes to the same creditor more than one sum, and pays lees than the whole amount due, which debt is wiped off, or are all the debts diminished pari passu ? The following are the chief rules for determining this question: Rule I. — The debtor may at the time of payment state which debt he intends to discharge. If he does not do so, the creditor may apply the payment to whichever debt he pleases. (C. 8, 43, 1.) But if the creditor makes election, he must apply the payment to the debt, that, if he were himself debtor, he would wish to have discharged. (D. 46, 3, 1.) A. is creditor of B. for two different sums. For one sum C. has become surety, for the other D. B. pays a sum to A. A. can apply it to wipe off the debt for which C. is surety, or for which D. is surety, whichever he pleases. (D. 46, 3, 5, 1.) A dispute arose between Titius and Gains as to interest for a sum lent by the former to the latter. Gaius paid a certain amount, saying it was for reduction of the 636 CONTRACT — GENERAL CHAPTER. principal, but Titius held it to be merely in payment of interest. When the cause was tried, the Court held that the money paid by Gains for interest could not be recovered, bat that no interest could in future be exacted. The question then came to be whether the amount paid by Gaius was for interest or principal. It was held to be part of the principal, because Gaius had paid it as such. (D. 46, 3, 102, 1.) Titius owed Maevius 20 aurei, about which there was no dispute, and 30 aurei if the risk of a slave who was killed attached to him. Titius paid 15 cmrei without saying which debt he desired to have discharged. Maevius must apply it to the discharge of the amount not in dispute. (D. 46, 3, 1.) Cornelius owed Julius 10 aurei, the price of a young slave, and he had also promised, without stipulation, to make Julius a present of 5 aurei. Cornelius paid 6 aurei without saying it was in part payment of the price of the slave. Could Julius apply it to discharge the promise of 5 avrei ? Prior to Justinian such a promise could not be enforced, but the money, if paid, could not be recovered. Could, then, Julius apply the money in payment of the present ? No ; because he was bound to apply it to the discharge of the debt that the debtor would wish to see released. (D. 46, 3, 94, 3.) Rule II. — If neither party has specifically assigned the pay- ment to any debt, and if the debtor is in arrear for interest, the interest must first be paid oiF; but as between principal debts, that is to be discharged which is most onerous for the debtor. (C. 8, 43, 1.) Titius accepted a loan, and promised interest at 5 per cent., at which rate he paid for a few years. Afterwards by mistake he paid at the higher rate of 6 per cent. Could the excess paid as interest be applied to reduce the principal debt ? Yes, if paid by mistake. (D. 46, 3, 102, 3.) Titius has made several contracts with Seius. Under some of the contracts Titius has already become debtor to Seius ; under others he will be debtor for given amounts within a certain time ; while others are conditional, and it is uncertain whether they will ever take effect. If Titius pays anything, it must be applied first to the sums already accrued due, and next to those certain to be due, but not yet matured. (D. 46, 3, 3, 1 ; r>. 46, 3, 103.) Gaius owed Sempronius 20 aurei for a horse. He also owed him 15 aurei that had been deposited with him for safe custody, and which he had, by gross negligence, lost. Gaius paid 20 aurei. It must be applied as to 15 aurei, to pay the deposit, for non-payment of which Gaius is exposed to infamy. (D. 46, 3, 7.) Maevius owes Titius 10 aurei, and 20 aurei on a contract secured by a pledge. He pays 10 aurei. In the absence of any statement by Maevius, he is understood to discharge the secured debt, and thereby partly relieve his property. (D. 46, 3, 5, pr.) Galbus owes Cornelius 100 aurei; he is also surety for Titius to Cornelius for 80 au/rd. Galbus pays 50 aurei. It must be employed to reduce his own debt, not the sum for which he is only surety. (D. 46, 3, 4 ; D. 46, 3, 97, pr.) A. is surety to D. in behalf of B. for 10, and of C. for 20 aurei. A. pays D. 10 aurei. Whose debt is it to be applied to ? If A. has said nothing, it is to be taken in discharge of the debt of longest standing. (D. 46, 3, 24.) Receipts {Apochae). A written acknowledgment of payment of debt (apocJia) was not conclusive, but was binding only in respect of the sum actually received. (0. 8, 43, 6.) It was, however, esteemed OBLATIO. 637 a more unequivocal evidence of payment than the restoration of a chirograph, or written obHgation to the debtor. (C. 8, 43, 14.) II. — Tender [Ohlatio; Depositio et Obsignatio). A distinction existed between a simple offer to pay (ohlatio) and a formal tender. The latter was made by depositing the money due in a sealed bag (depositio et obsignatio), either in a temple, or in some place by order of a court. (C. 8, 43, 9 ; C. 4, 32, 19.) From certain passages it might be inferred that a formal tender or deposit was unnecessary. (C. 4, 32, 6 ; D. 45, 1, 122, 5.) Other passages seem to deny any effect to such oifer unless followed by formal deposit. (D. 26, 7, 28, 1.) A reconciliation is suggested to this effect, that an informal offer is a discharge of the debt, and stops the currency of interest, when interest results from the delay (mora) of the debtor ; but that the accessories of the debt, pledges, interest due by agreement, etc., were not released without the formal tender. (C. 4, 32, 9.) Titius promised Dama or Eros. Titius offered to deliver Eros, but the stipulator delayed acceptance. Then Eros died. Titius was not obliged to deliver Dama, be- cause it was not his fault that the stipulator did not take Eros. (D. 45, 1, 105.) Gaius owed Cornelius 10 aurei, and visited him with the money in order to pay him. Cornelius, without any good reason, refused to take it, and Gaius, taking home the money, accidentally lost it. Gaius could not be compelled to pay the 10 aurei. (D. 46, 3,72, pr.) A tutor who offers and deposits, under seal, the amount he owes, is released from the obligation to pay interest. (D. 22, 1, 1, 3.) When money had been so deposited the debtor was released, and the remedy of the creditor was only against the person with whom the deposit was made in order to recover what had been deposited. III. — Impossibility of Performance is occasionally equi- valent TO ACTUAL Performance. (Interitus rei) A promise to do that which was from the first impossible, is void; is it also void if the thing becomes impossible only after the promise is made ? Here we do not speak of the inability of a particular man to do what he promised, as if he becomes insolvent, but the impossibility of anyone doing what has been promised. When the impossibility has arisen from no fault of the promisor, as when he has agreed to deliver a thing, and the thing perishes, generally he is discharged. 638 CONTRACT GENERAL CHAPTER. Titius promises to Gaius, by stipulation, so many coins contained in a particular chest. Owing to no fault of Titius the chest and money are lost. Titius is not obliged to pay an amount equal to the sum lost. (D. 45, 1, 37.) Stichus is promised to Maevius by Seius. Stichus dies. Is Seius released ? If it was not the fault of Seius that Stichus died, he is released. (D. 45, 1, 33.) If the slave, however, had been asked for by Maevius, and refused, or if Seius killed him without a reasonable excuse, he must pay the value of Stichus. (D. 45, 1, 23 j D. 45, 1, 96.) Titius promises Arethusa to Gaius. Arethusa is manumitted. Is Titius released ? Not if Arethusa belonged to Titius. But if Arethusa did not belong to Titius, and the manumission was not due to his fraud or fault, Titius is no longer bound. (D. 45, 1,51.) Maevius promises Eros to Sempronius. Eros is taken captive. Is Maevius released ? If Eros did not belong to him, certainly. If Eros did, then it would appear that Maevius was bound only in case Eros was recovered, or again fell under his control. (D. 46, 3, 98, 8.) Gaius promised Pamphilus to Cornelius. Gaius did not give Pamphilus, and compelled Cornelius to resort to legal proceedings, pending which Pamphilus died. Gaius in compelling Cornelius to take legal proceedings, is guilty of undue delay, and must pay the value of Pamphilus. (D. 45, 1, 82, 1-2.) Sempronius promises to give a small plot of ground to Maevius. After doing so, he buries a dead body in the place, and thus makes the land extra commercium. Sem- pronius must pay its value. If the land had belonged to another, who had buried a body in it, he would have been released. [D. 45, 1, 91, 1.) Julius promises to Titius a plot of building ground belonging to Gaius. Gaius builds upon it. Can Titius sue Julius on the stipulation for the value of the ground ? Celsus gives an opinion in the negative (D. 32, 1, 79, 2), but Paul disputes and denies his opinion. (D. 46, 3, 98, 8.) The opinion of Celsus was grounded on the change in the condition of the thing being such as to render delivery of the ground without the building impossible. Paul replies that the ground is a part of the house, and indeed the principal part, to which the building is in law only accessory, and that, therefore, the value of the land must be paid. Seius promises a usufruct of his farm to Maevius for the next ten years. By the fault of Seius, Maevius is kept out of the farm five years. Maevius can, nevertheless, sue for the ten years. (D. 7, 1, 37.) Second — Releases— Formal and Non-formal. Actual performance is called the natural mode of dissolving an obligation (naturalitur resolvitur), in contrast with a formal release {civiliter resolvitur) by the provisions of the law. The maxim was that every contract had its appropriate divestitive fact, just as it had its appropriate investitive fact, and that these two classes of facts, the investitive and divestitive, must correspond.-' Hence a contract formed per aes et libram must be dissolved per aes et libram ; a contract by stipulation must be dissolved by a contrary stipulation ; a contract formed by writing (expensum ferre), by written release (acceptum ferre). ' J'rout quidque cuntractum est, ita et solvi debet (D. 46, 3, 80) ; mhil tarn naturale estquam eo genere quidque dissuhere quo eoUigatum est. (D. 50, 17, 35.) ACCEPTILATIO. 639 Such was the maxim with regard to formal releases, and ■when the obligation was thereby taken away, all the collateral securities (sureties, pledges, etc.) were at the same time released. The obligation was extinguished as if it had never existed. (I.) Formal Releases. 1. Release of stipulation — Acceptilatio. 1°. This is the mode of release primarily adapted to verbal contracts, and hence applies not only to the stipulation, but also to the verbal contract of services of a manumitted slave (phligatio operarum). (D. 46, 4, 13.) An obligation may be removed by crediting the debtor with payment {acceptilatid). This is done by an imaginary payment. If Titius has a debt due him on a contract made by words, and wishes to remit it, he can do so by allowing his debtor to say these words : — " What I have promised you, do you regard as received ? " and by himself answering, " I do." This acknowledgment may be in Greek as well, provided only it be done in the same form of words as is usually employed in Latin. (J. 3, 29, i ; G. 3, 169.) AcceptUatio is the formal and solemn acknowledgment by the creditor that his claim has been satisfied ; and having made such an acknowledgment, the creditor was estopped from alleging that in point of fact there was no payment. Velut solvisse videtur is, qui accepfHatione solutus est. (D. 46, i, 16, pr.) Hence it is called by Gains a fictitions payment {imaginaria sohitio). English lawyers would probably explain such a release as operating, like the exjyeTisUatio, by estoppel. Several stipulations could be dissolved at the same time by an acceptilatio, (D. 46, 4, 6 ; D. 46, 4, 18, pr.) It could not be conditional or postponed. {Sub conditione or in diem.) I). 46, 4, 4 ; D. 48, 4, 5.) 2°. The Aquilian Stipulation. — A wide extension vi-as given to acceptilatio by formulae introduced by Aquilius Gallus, the colleague of Cicero, of whom mention has been already made. In this fashion, as we have said, contracts by words are dissolved, and these only, not the rest. For it seemed fitting that an obligation made by words might be dissolved by words. But a debt due on any other ground may be reduced to a stipulation, and dissolved by crediting the debtor with payment {acceptilatio). As a debt may properly be paid in part, so a debtor may be credited with part payment. (J. 3, 29, i ; G. 3, 170.) A debt may be properly paid the creditor in part. But whether a debtor can be credited with part payment is cjuestioned. (G. 3, 172.) A form of stipulation has been handed down to us, commonly called Aquiliana, by which any obligation whatever can be reduced to a stipula- tion, and so taken away by crediting the debtor with payment {acceptilatio). It works a novation on every obligation, and was framed by Gallus Aquilius as follows: — "Whatever, on whatever ground you are, or shall be bound to give me or do for me now or on some after day, and all for which I may now or hereafter bring an action or make a claim, or 040 CONTRACT — GENERAL CHAPTER. for which I may follow you up before a magistrate, and all you have, hold, or possess of mine, or which only your wilful wrongdoing keeps you from possessing, all this, according to the value to be set on each item, Aulus Agerius has stipulated shall be given to him, and Numerius Negidius has undertaken so to do." Again, conversely Numerius Negidius put the question to Aulus Agerius, " Whatever I have undertaken for you this day by the stipulatio Aquiliana, do you regard as received in full?" and Aulus Agerius answered, " I regard it as received," and, " I have entered it as received." (J. 3, 29, 2.) The acceptSatio, even if wholly gratuitous, extinguished the obligation. It was thus convenient even when the obligation was discharged by payment. If the debtor paid what he owed, and obtained a written discharge (apocha), he might be troubled by the allegation that, in point of fact, although he had got a receipt, he had not paid the debt. If, however, the release were by acceptUatio, this objection could not be raised, and hence acceptUatio was the safest form for receipts. (D. 46, 4, 19, 1.) 3°. AcceptUatio of part of a debt. Ulpian resolves the difficulty stated by Gaius ia the following manner : If the obligation is divisible, then it may in part be released by acceptUatio ; but if it is indivisible, the acceptUatio is void unless it covers the whole obligation. (D. 46, 4, 13, 1.) The distinction between divisible and indivisible obligations may be illustrated by the following examples : — " Of the 10 aurei I promised you, do you admit five as received ? " I do. This release is valid for 5 aurei, (D. 46, 4, 9.) Titius owes a slave to Sempronius. He asks Sempronius whether he will release him from giving Stiehus. Sempronius agrees. Is the release from Stichus a release from the general obligation of giving a slave ? Yes ; the question of divisibility does not arise, for inasmuch as Titius could perform his obligation by giving Stichus, the release from Stichus is a discharge of the whole obligation. (D. 46, 4, 13, 4.) Titius owes Arethusa to Gaius. Gaius dies, leaving as heirs Maevius and Julius. Can Maevius release Titius in respect of his share of the inheritance ? Yes, although Arethusa cannot be divided. (D. 46, 4, 10. ) Titius owes Maevius a slave or 10 aurei. Maevius releases him from 5 aurei. What right remains to Maevius ? He can sue Titius for 5 aurei or a share of the slave. (D. 46, 4, 17.) Titius owes an urban or rural praedial servitude. Can he be released from part of the servitude ? No, because such a servitude is indivisible. (D. 46, 4, 13, 1.) Titius owes a usufruct of his estate. Can he get a release in respect of part of the estate, while remaining bound to give a usufruct of the remainder ? Yes. (D. 46, 4, 13, 1.) Titius is bound to give a carriage-way {via). The creditor releases him from a footpath [iter). This is wholly invalid ; because, although a footpath is included in a roadway, and in a sense a part thereof, it is a part not of «■ physical whole, but of a legal or imaginary whole ; but if released from iter and actus, the debtor is released horn via. (D. 46, 4,13, 1.) Titius has promised a farm simply, which, of course, meant the ownership of it. He is released from it in respect only of a usufruct or right of way. This is invalid, because » usufruct is not a part of the ownership in the sense required. (D. 46, 4, 13, 2.) NEXI LIBER ATIO. 64 1 TitiiTs promises a usufruct of land, and accepts a release of the use {usus) of it. la this valid ? If the creditor thought a use only was due, his release is void. It, how- ever, he knew that the usufruct was due, and intended to reserve the produce (fructus), releasing only the use, the release was valid. This shows that the relation between usufruct and use was much closer than between ownership {dominium) and usufruct. Usufruct and use are considered as more readily interchangeable, or rather they are regarded less as distinct species than as one species varying in the liberality of its interpretation according to the terms of the grant. (D. 46, 4, 13, 3.) Titius has promised Stichus. He is released by the same acceptilatio from Stichus, and also from Pamphilus, who is not due. The release is valid for Stichus, the addition of Pamphilus being treated as surplusage. (D. 46, 4, 15.) 4°. Who can release by acceptilatio ? Although we have said that acceptilatio is accompanied by an imaginary payment, yet a woman, without authority from her tutor, cannot credit a debtor with payment, although payment can be made her in any other form without authority from the tutor. (G. 3, 171.) One of several co-creditors can release a debtor by accepti- latio without the consent of the rest. The Aquilian law, as we have seen, imposed a penalty on an adstipulator who took this means of defeating the stipulator. 2. Release per aes et libram. Nexi liberatio. There is, too, another sort of imaginary payment, by means of a piece of bronze and a balance. This kind is received in certain cases only, as when the debt that is due has been so contracted, or is grounded on a judgment. (G- 3, 173O There are employed not less than five- witnesses and a balance-holdei-. Then he that is being freed ought to speak thus : — " Whereas I am con- demned to pay you so many thousand sestertii on such and such a ground (as according to the terms of the conveyance), with this bronze and balance of bronze I pay and free this balance both first and last in accordance with public law." Then he strikes the balance with an as, and gives it him from whom he is freeing himself, as if by way of payment. (G. 3, 174.) As a will was made anciently ^er aes et libram, it followed that a legacy also could be discharged by this mode of release. Thus the form applied to the release (1) of contracts made per aes et libram {nexum) ; (2) of judgment debts ; and (3) of legacies. The propriety of this mode of discharge is evident in the case of nexum and legacies, but is not so clear in the case of judgment debts. (G. 3, 175.) Gains, also, informs us that this mode of release was confined to what could be counted or weighed ; or, as some add, measured. He says nothing, in the text as it remains, regarding the formation of the contract of nexum ; and the whole subject, on account of the paucity of evidence, is involved in obscurity. This formal release seems, as in the case of acceptilatio, often to have accompanied actual payment. (Livy, 6, 14.) 3. The literal and real contracts should be dissolved by methods analogous to their investitive facts. An entry (ac- ceptum ferre) wiped out a written debt, and formed, doubtless, the correct mode of release. So, as a contract re was formed 2 s 642 CONTRACT — GENERAL CHAPTER. by the delivery of some article, it was dissolved by the return of the same article. 4. The consensual contracts. Further, obligations contracted by consent may be dissolved if both change their minds. If Titius and Seius mutually agree by mere con- sent that Seius shall have a farm at Tusculum on buying it for one hundred aurei, and thereafter, while performance has not yet followed — that is, while the price has not been paid, and the farm not delivered — they determine to depart from the contract of sale, then mutually they are freed. It is the same with hiring and letting, and with all the contracts that come down from consent, as has already been said. (J. 3, 29, 4.) (II.) Non-formal Releases {Factum de non petendo). The special importance of pacts in reference to the divesti- tive facts of contract has been already pointed out. The pact not to sue practically superseded the formal releases. But, nevertheless, some differences remained, and it was occasionally important, wliether a formal contract was dissolved formally or by mere pact. 1. A defective acceptilatio was construed as a pact not to sue, if the intention of the creditor was to release the debtor, and the form merely of the acceptilatio was defective. (D. 2, 14, 27, 9.) If, however, the creditor did not intend to release the debtor, but went through the form of acceptilatio, knowing it to be void, it was held that he could sue the debtor, as he had never really consented not to sue. (D. 46, 4, 8, pr.) In like manner, if a contract re were dissolved by accejotilatio simply, without resorting to the Aquilian stipulation, accord- ing to the old law, the acceptilatio had no effect. But in this case also a favourable construction was adopted : the formal release was held to imply an agreement not to sue, and an action to enforce the original contract would be defeated by the exceptio doli mali or paoti oonventi. 2. A formal release must be unconditional ; an agreement not to sue {jpactum de non petendo) might be limited and con- ditional. Titius owes Maevius 10 awrei at the end of six months. Maevius offers to relea,8e him if he pays 8 aurei at the end of the second month. The agreement is not made by stipulation. Can Titiua, by offering the 8 aurei at the proper time, protect himself from liability for the 10 aurei at the end of six months ? Yes. If Maevius sues him, he can plead the agreement as a defence. (D. 2, 14, 41.) 3. A formal release either wholly extinguishes the obligation or does not affect it ; an agreement not to sue may operate as PACTUM DE NON PETENDO. 643 a release to some of the parties bound, and not to others. If the pact is in favour only of the person making it, or of some definite person, it is said to be a pact in personam; but if it operates generally in favour of all persons bound, it is said to be in rem. (D. 2, 14, 7, 8.) If the agreement is restricted (pactum in personam), it avails only for the persons in whose favour it is made, and not even for their heirs. (D. 2, 14, 25, 1.) Titius owes money to Gaius. Gaius writes to Titius, "I will not sue you.'' The heir of Titius cannot plead this agreement. But if Gaius wrote, " I will release that debt," the heir of Titius and all others interested are protected. (U. 2, 14, 17, 3.) " I will not sue," may mean I will not, but my heirs maj'. " You will not be sued," may mean you will not, but your heirs will be sued. The question is as to the intention of the parties : the words used have eflfeot only in so far as they indicate such intention. (T>. 2, 14, 57, 1.) 4. A formal release of one of several co-obligees releases all ; an agreement not to sue may be limited to the release of one only, the others remaining bound. If one of several co-creditors {cop-ei stiptdandi) formally releases a debtor, the debt is wholly extinguished, and the debtor is at the same time released from the claims of the other creditors. (D. 46, 4, 13, 12.) If one of several co-debtors is formally released, all the other debtors are at the same time discharged. This follows from the nature of acceptSatio. (D. 46, 4, 16, pr.) Such was the rule applicable to formal releases ; but the same technical reasoning was not extended to informal agree- ments not to sue. As such agreements were not recognised except in equity, so by equity must that recognition be modi- fied and interpreted. The object of the Praetor was to give eifect to the intentions of the parties as against the strictness of the old legal formalities, and therefore the real agreement between the parties formed the law that was made to govern the case. If the agreement were restricted to the person making the release, or to whom release was given, unquestion- ably the others would not be affected. But suppose the agree- ment were quite general, that the creditor agreed not to sue at all, was such an agreement effective in regard to the other debtors or creditors, who were ignorant of it ? (1.) Does a pact not to sue, made by one of two co-creditors, release the debtor from the other creditor? It would of course be manifestly unjust to give a creditor the power of destroying his co-creditor's claim. With this appears to agree a somewhat difficult text of Paul. According to the ingenious interpreta- tion of Savigny, the text reads thus ; — " If one of two bankers in partnership makes a pact not to sue a debtor of the firm, is 644 CONTRACT — GENERAL CHAPTER. the defence accruing to the debtor from this pact available against his partner? Neratius, Atilicinus, and Proculus say it is not, even although the pact is perfectly general {pactum in rem) ; for all that the imperial constitutions have settled is that each partner can sue for the whole debt. [The same rule holds in the case of two co-creditors.J Labeo also is of the same opinion, for one of them cannot make a novation, although one can give a valid discharge ; just as payment of money that has been borrowed from those under our potestas may lawfully be made to them, although they cannot make a novation. And that view is correct." (D. 2, 14, 27, pr.) In the Digest the sentence enclosed in brackets comes after the text, but Savigny thinks the writer meant to carry back the proposition to the place in which it is put. (2.) Does a pact not to sue made to one of two co-debtors release both ? Here the difference between a formal and inform.al release becomes apparent. By acceptilatio the legal chain is broken, and hence both are released ; but when there is only an agreement having no other force than equity gives to it, the Praetor applies a different rule. Generally speaking, the release of one is not the release of the other. But if they are so connected that the release is not effective unless it is in favour of the co-debtor also, then both are released. (D. 2, 14, 21, 5.) Suppose A. and B. are jointly bound for a debt, and that each is a surety for the other, then neither of them can be effectually released unless both are. Here it might fairly be presumed that the, creditor intended to release both, for unless he did so, his general release had no effect. 5. A formal release of the principal is a release of the surety, and a formal release of the surety is a release of the principal ; but an informal release of one of them may have no effect on the other. (D. 46, 4, 13, 7.) In the case of pacts a technical difficulty arises that is not felt in acceptilatio. Acceptilatio operates as an annihilation ot the debt, but a pact only as an equitable defence. Now it was a rule of the Koman law that one freeman could not act for another. How, then, could a surety reap the benefit of a pact made with his principal, and not with himself, or how could a principal avail himself of a pact made only by his surety ? The answer was that such a pact made by A. on behalf of B. could be pleaded in favour of B. only when it was A.'s interest, and so in effect the pact was for A. solely. (D. 2, 14, 27, 1.) PRESCRIPTION. 645 Generally speaking, a pact not to sue (in rem) made with a debtor was available as a defence to the surety. The excep- tion was when there was an express or an implied under- standing that the debtor alone should be released. (D. 2, 14, 22.) The reason is manifest. If the surety could be sued, he could turn back on the debtor and compel him to make fjood the amount paid on his behalf, and so the release of the debtor would be nugatory. Hence if the surety had released the debtor from his obhgation to refund what the surety might be compelled to pay, he could not avail himself of any agreement made with the debtor. (D. 2, 14, 32.) Such reasoning did not apply when a general agreement not to sue was made with the surety. It was immaterial to the surety whether the debtor continued bound or not. Hence, as a general rule, a pact made with the surety was no defence to the debtor. (D. 2, 14, 23.) If, however, it were understood that the debtor also was to be included in the release, the debtor, although he could not directly plead the agreement, which had not been made with himself, could allege that the action was brought against good conscience, and so under that wide defence (exceptio doli) find shelter. (D. 2, 14, 25, 2 ; D. 2, 14, 26.) The rules may be thus summarised. A genei-al agreement not to sue made with a principal debtor operated in favour of the surety, unless the contrary was proved to be the intention of the parties ; a general agreement not to sue made with a surety did not operate in favour of the principal debtor, unless it was proved that the parties intended it to have that effect. Third — PRESCRIPTION. In considering the subject of prescription, or the extinction of rights through lapse of time, a vital difference is to be re- marked between property and obligation, between rights in rem and rights in personam. In the case of property the early Roman law had usucapio ; but usucapio operated directly as an investitive fact, as a mode of converting an imperfect into a perfect title ; it directly established the possessor, and so only indirectly and inferentially disestablished the owner. In the case of obligations, or rights inpersonam, which consist of duties to do or forbear, the debitor, from the nature of the case, cannot have possession. Prescription, therefore, if it exists at all, must operate in the first instance against the creditor, and so 646 CONTRACT — GENERAL CHAPTER. indirectly in favour of the debtor. Prescription, as applied to obligation, can take no other form than a refusal to give the creditor an action. It thus happened that while the Roman law had prescription in regard to property — namely, usucapio — it had no analogous provision for obligations. The first dawn of a law of prescription as applied to rights in personam was when the Praetor, in introducing new actions, limited them to a fixed period, generally a year. This limit was in perfect harmony with the general principles of Pr^torian intervention. His jurisdiction was regarded as essentially extraordinary, evoked by some clamant injustice, and not to be stretched further than was necessary. If, therefore, an aggrieved person did not choose to apply for relief within the year, the old civil law was simply allowed to take its course. We must here observe that actions proceeding from a statute or senaius consultum, or imperial constitution, were available for all time, until imperial constitutions fixed certain limits both for actions in rem and actions in per- sonam j those that depend on the Prjetor's peculiar jurisdiction live, for the most part, for a year only (for the power of the Prsetor was for a year only), but sometimes they are extended to all time, that is now up to the limit intro- duced by the constitutions [copying the regular law]. Of these latter instances are the actions given to the bonorum possessor and the rest that stand in the place of the heir. The actio furti nianifesti too, although proceeding from the Praetor's own jurisdiction, is yet given for all time. For the Prsetor thought it absurd that such an action [fixing a money penalty instead of a capital penalty] should be limited to a year. (J. 4, 12, pr. ; G. 4, lio-iii.) Constantine enacted that a claim of ownership should be barred after forty years (C. 7, 39, 2), but the first enactment establishing prescription for obligations generally was made in A.D. 424, by Theodosius II. It fixed a period of thirty years for the extinction of all actions, whether in rem, or in personam. (C. Th. 4, 14, 1 ; C. 7, 39, 3.) Another law passed by Anas- tasius (a.D. 491) makes a prescription of forty years for the cases not included in the previous enactment. (C. 7, 39, 4.) It is difficult, considering the general terms of the first enact- ment, to say what these cases were. Finally, Justinian made the term thirty years for all actions, except the actio hypothe- caria, which had a special prescription of forty years; but claims for freedom were imprescriptible (p. 185). In order that prescription should operate as a divestitive fact, the following conditions were necessary : — (1.) A right of actiim accrued. (2.) Absence of claim for (3.) A certain time. PRESCRIPTION. 647 The effect of incapacity to sue on the part of the creditor, and of mala fides of the debtor, will be considered separately. 1. Prescription begins to run from the moment that the right of action exists, and is not exercised. (C. 7, 40, 1, 1; C. 5, 12, 30.) Recurring to the technical language already ex- plained, it is from the time when dies venit, not from the time when dies cessit. Heuce, if an obligation is conditional, pre- scription begins to run, not from the date of the agreement, but from the moment when the condition is fulfilled ; in a deferred obligation (in diem), only when the time has elapsed, and the creditor can sue, (C. 7, 39, 8, 4.) It is a more difScult question, at what moment prescription began to run when no time or condition was fixed in the contract. The general rule in con- tracts was, that if no time was fixed, performance could be at once demanded. (J. 3, 15, 2.) But does a right of action arise before a demand is made *? In one passage, Ulpian adopts the view of the English law, against which Austin argues strenuously, that the action is itself a demand. (D. 16, 3, 1, 22.) From this it follows that a plaintiff will not be defeated in an action, merely because he has not, previous to the commence- ment of the action, made a demand for performance. It would therefore follow that, for the purpose of prescription, time be- gins to run from the moment the contract is made, unless either the contract is conditional or it fixes a time for performance. Austin's criticism of the rule is quite justified from the stand- point of theoretical jurisprudence. But the point is one of small practical importance, except as affecting the question of costs. A creditor who sues a willing debtor without first ask- ing him to perform his' contract, ought to be made to pay the costs incurred by the debtor. A case of special importance is in obligations of periodical pajonents. These pay- ments may be either of principal or of interest. (1.) Prescription of a principal debt through non-payment of interest. When a debt bears interest, prescription begins to run from the date of the last payment of interest, not from the time that the debtor could have brought an action to recover the principal debt. If, however, the loan is made for a definite period, prescriptiois does not run until that period is expired, even although interest may have been due and not paid, because prescription cannot ran before the right of action accrues, although it need not begin until afterwards. (C. 7, 39, 8, 4.) (2.) When the periodical payment is not of interest but of principal, as when a perpetual rent is imposed upon land by testament, prescription begins from the last payment. (C. 7, 39, 7, 6.) 2. The prescription must not be interrupted ; there must be a continuous non-claim. 648 CONTRACT GENERAL CHAPTER. (1.) An acknowledgment of the debt (agnitio) by the debtor interrupts the prescription, and forms anew point of departure, from which the prescription is to run. Giving a new written security (C. 7, 39, 7, 5), payment of part of the debt, or " con- stituting " for the payment (D. 13, 5, 18, 1), are such acts of acknowledgment. If there are several creditors or debtors, acknowledgment by one binds or releases all the rest. (C. 8, 40, 5.) But a mere demand of the debt, or a transfer of the debt to a third party (cessio actionis), did not break or interrupt the prescription. (2.) Action brought by the creditor. Anciently no action availed to interrupt prescription until it had reached the litis contestatio (see V., Divestitive Facts), but under the later pro- cedure, it was the summons and transmission of the plaint {libellus conventioiii.i) that broke the prescription. (C. 7, 40, 3.) A reference to arbitration also interrupted the prescription (C. 2, 56, 5, 1) ; but not a demand made before the wrong tribunal. (C. 7, 21, 7.) Once a case was before the court, it was subject to the rules laid down with reference to legitima judicia (G. 4, 104-105), or else was imprescriptible. (D. 50, 17, 139, pr.) It would appear, however, that the thirty years' prescription was applied; (C. Th. 4, 14, 1, 1), a term changed by Justinian to forty years from the last-brought action. (0. 7, 40, 1, 1.) 3. The length of time required. (1.) In Prsetorian actions, as stated in the text, the prescrip- tion was generally for a year. Paul (D. 44, 7, 35, pr. ; D. 25, 2, 21, 5) and Ulpian (D. 4, 9, 3, 4) drew the line thus : — Penal actions introduced by the Pr^tor were confined to one year's prescription ; but actions for the recovery of property, even when due entirely to the Prsetor, were perpetual, like the actions of the civil law. The actio doli mali was penal, and at first pre- scribed in a single year, but the period was extended by Con- stantine to two years. (C. 2, 21, 8.) Pr£etorian actions, if originally unlimited, fell under the prescription of the next class — the civil actions. (2.) In all other actions the period was thirty years, with the following exceptions ; — 1°. Justinian extended the prescription to 100 years when the action was by a church or pious foundation, and related to succession, legacies, gifts, or contracts of sale. The same time was given when money was left for redemption of captives CONFUSIO. 649 (C. 1, 2, 23.) This privilege was extended (A.D. 535) from the East to the West, to the whole Ecclesia Romana. (Nov. 9.) After- wards (a.d. 541) the time was reduced to forty years. (Nov. 111.) 2°. Actions by municipalities were included in the foregoing, but it may be inferred from Nov. Ill and Nov. 131, 6, that in this case the time was reduced to thirty years. 3°. Such actions as the imperial exchequer (fiscus) could bring in common with private persons were subject to the usual prescription of thirty years (D. 49, 14, 6) ; but actions exclusively competent to the excheqiier were barred by the lapse of twenty years, even when other penal actions were not subject to any prescription. (D. 44, 3, 13, pr. ; D. 49, 14, 1, 3.) To this rule two exceptions existed : (1) taxes were always impre- scriptible (C. 7, 39, 6) ; and (2) the right of succession to vacant inheritances was limited to four years. (C. 7, 37, 1.) The bona fides of the debtor or capacity of the creditor. In usueapio there must be bona fides of the possessor ; and when Justinian extended to the longi temporis possessio all the incidents of usueapio, he enacted a similar condition. (C. 7, 39, 8, 1.) But in prescription of actions the condition of bona fides was immaterial ; the defence lies not in the positive claim of the' debtor to release, but in the denial to the creditor of his remedy for his remissness. Manifestly the debtor need not plead bona fides to take advantage of the plea of prescription. Prescription ran against women and persons who were out of the jurisdiction, or engaged in military service : but not against persons under the age of puberty, even when they had tutores. (C. 7, 39, 3.) Fourth— CONFXJSIO. Confusio occurs when a creditor becomes heir to a debtor, or a debtor becomes heir to a creditor. This result arose from the old conception of inheritance — the idea, namely, that the heir was not a new person, but continued the legal personality of the deceased. It will therefore be convenient to postpone what has to be said on the subject of confusio until the subject of inheritance is approached. We may, however, observe that by the law as amended by Justinian (C. 6, 30, 22, 14), an heir making an inventory escaped the operation of this rule, and remained after accepting the inheritance, as regards sums due by him to the estate or vice versa, in the same position as before acceptance. 650 CONTRACT GENERAL CHAPTER. Fifth — Litis contestatio. In the Roman law, for reasons to be afterwards stated (Law of Procedure, Litis Contestatio), taking a debtor into court operated as an extinction or abandonment of the debt. The creditor obtained, in lieu of his original right, a new claim against the debtor, which he could prosecute until he obtained full satisfaction. The appearance of the parties before a judex constituted a new departure. This is shown in a striking way by the rule regarding penal actions. A penal action could not be brought against the heir of the wrongdoer ; but if the delin- quent were sued, and he died after the stage of litis contestatio, then the action went on against his heirs. (D. 44, 7, 26.) Again, a stipulator sues for a slave. After the litis contestatio, the slave dies, the debtor is not relieved, as he would have been if the slave had died before the litis contestatio. (D. 42, 1, 8.) REMEDIES. I. Descent of Obligations to Heirs. The general rule was that the rights of a creditor descended to his heirs, and the duties of a debtor descended to his heirs. (J. 3, 24, 6.) It is not all the actions against a man available at strict law or given by the Prsetor that are equally available or are usually given against his heir. For it is a most certain rule of law that penal actions arising from wrong (as, for instance, fiirti, vi bonorum raptorum, injuriaruM, damni injzirid) are not available against the heir. But actions of this sort are available by heirs, and are never denied them-^except, indeed, the actio injuriarum, and any like action that may be found. Sometimes, however, even an actio ex contractu is not available against an heir [nor to an heir, for the heir of an adstipulator has no action ; and, on the other hand, the heir of a sponsor or Jidepromissoris not liable] ; as when the testator has acted fraudulently, and nothing gained by that fraud has come to his heir. But the penal actions of which we have spoken above, if once actually joined {contestatae) by the principal persons, are both given to heirs, and pass on as against heirs. (J. 4, 12, I ; G. 4, H2-113.) Three exceptions are pointed out in the text. Bnt (4) the contract of letting on hire of service was necessarily extinguished by the death of the workman ; also (5) partnership was regarded as so essentially personal that, except in the case of societaa -vectigcdis, the death of a partner dissolved the association even among the surviving partners, and the heir of a partner could not succeed in his place, II. The Measure of Damages. This subject has been illustrated in detail elsewhere : but we may here recapitulate and bring together the several stand- ards of damages known to the Roman law. We may reckon ACTIONS. 651 three distinct kinds : — (1) ordinary damages, including conse- quential damages; (2) sub-ordinary, or a certain lenient measure adopted in a few specified cases ; and (3) penal or con- ventional damages, as fixed by the parties in their agreement. 1. The ordinary standard was the loss sustained by the complainant in consequence of breach of contract by the defendant. This is either verum rei pretium (the market value) or quanti actoris interest (how much the plaintiff has lost), which may exceed the price of the thing. Quanti ea res est, in actiones arbitrariae, means sometimes one and sometimes the other of those measures of damage. (D. 50, 16, 193 ; D. 39, 2, 4, 7.) When the breach of contract was wilful, the defendant was responsible for much more than if the breach was due to no fault of his. Thus a person selling a diseased ox that infects a herd is liable for the value of all in the herd that die if he knew of the disease at the time of the sale ; if he did not, he was liable only for the difference in value between a sound and an unhealthy animal. 2. A lower standard existed when the damages were limited to the amount the defendant was able to pay.^ This is ex- pressed by the terms quantum facere potest ; and several examples have been already mentioned, as in the action on partnership. The idea was, that the relationship out of which the action sprung was not to be governed by strict commercial considera- tions ; that it was one of such mutual confidence and esteem that even when a party was wrong he was not to be pressed too hardly. 3. A third measure of damages may be termed conventional or penal ; that is, an amount may be agreed upon as the equi- valent of the loss likely to be sustained by entire breach of contract. This was especially necessary or convenient when the object of the contract was not a thing, the value of which could readily be ascertained, but acts the value of which might be very much a matter of opinion. Not only things but acts may be brought into a stipulation, as when we stipulate that something shall be done or not done. In stipulations of this sort it will be best to throw in a penalty at the end, lest the amount of the stipulation should be uncertain and the plaintiff be forced to prove what his interest is. So, if a man stipulates that anything shall be done, the penalty ought to be added ; thus, " If it is not done, then do you undertake to give 10 ' Imo nee totum, quod habet, eis extorquendum puto, sed ei ipsi ratio kdbenda est, ne (D. 42, 1, 19, 1.) 652 CONTRACT GENERAL CHAPTER. aurei as a penalty ? " But if the stipulation is so framed as to require by one and the same agreement that some things shall be done and that others shall not, a little clause of this sort ought to be added : " If anything is done against the foregoing, or if anything is not so done, then do you undertake to give 10 aurei as a penalty ?" (J. 5, 13, 7.) The amount named as a penalty was not, however, condnsive ; for if it were inadequate, more might be obtained ; and if it were escessive, it might be reduced. Titius sold Gaius some land, and by stipulation it was agreed that Gaius should do something, subject to a penalty. It Titius sues first on the sale and recovers less than the pen.^lty, he can afterwards sue on the stipulation for the penalty. But if he recovers as much as the penalty, and afterwards sues on it, he is repelled by the exceptio doli mali. By proceeding on the honae fidei action of sale, he is not precluded from going on with the stipulation for the penalty. If Titius sued first on the stipula- tion, he could not afterwards sue on the sale, because the stipulation included the whole agreement ; but if the penaltj^ was less than the damage actually suffered, he was allowed to proceed with an action on the sale, and recover enough to give him complete satisfaction. {D. 19, 1, 28.) Cornelius compromised a claim against Slaevius for 60 aurei, but Maevius incon- siderately agreed to a penalty of 100 aurei if he did not keep the terms of the com- promise. Cornelius could not recover more than was really due — namely, 60 awei ; and if he demanded more, could be defeated on the ground of bad faith {exceptio doli malt). Thus a penalty might be reduced. (D. 44, 4, 4, 3.) But penal stipulations in the contract of sale were rigidly enforced. They were not intended to be an estimate of damages. III. Interest (usurae, fenus, versura). (^Sors, caput = principal). Interest, according to the teaching of political economy, is an equivalent for two things — first, for the use of money or any other property ; and, secondly, for the risk of losing the money or other property. The rate of interest, under free competi- tion, is principally determined by these two considerations. This analysis is so simple, and the advantages of interest to both borrowers and lenders are so obvious, that we can with difficulty realise to ourselves the feelings of some ancient nations upon the subject. Jews were forbidden to take usury from Jews, but might lawfully do so from Gentiles. The idea evidently was that from friends or fellow-citizens it was mean to exact a reward for a loan. For centuries the Christian Church struggled to suppress interest, but in commercial nations without lasting success. Among the Romans we find an identical spirit of hatred of usury or usurers going the length of prohibiting the acceptance of interest altogether ; and when that was found too much, of keeping it within fixed limits. By the law of the XII Tables, interest was limited to 12 per cent, per annum (unciarium fenus). In B.C. 345 or 347 this rate was reduced to one-half (seiidunciavium fenus) ; and in ACTIONS. '653 B.C. 340 it was altogether prohibited by the lex Genucia. This law was confined to Rome ; but another statute extended the prohibition to Italy. Such legislation, as might be expected, overshot the mark, and in spite of the law, the recognised maximum in the time of Cicero was 12 per cent, per annum. Justinian fixed the following rates for loans of money (C. 4, 32, 26, 1) : — 1. Maritime loans {pecunia trajeclitia), maximum, 12 per cent, per annum. 2. To merchants and business men, . . 8 „ 3. To ordinary persons — not in business, . . 6 „ 4. To high personages (Ultistres, etc.), . | . 6. To agriculturists (Nov. 32), , j It was also a rule that in no case should the interest exigible exceed more than twice the amount of the principal debt. (C. 4, 32, 27, 1 ; C. 4, 32, 29 ; C. 4, 32, 30.) Compound interest (usurae usurarum) was prohibited by the ancient law ; but the rule was evaded by an agreement to turn interest into principal bearing interest. This evasion Justinian emphatically prohibited, and allowed only simple interest to be added to the principal. (C. 4, 32, 28.) If the interest charged or paid exceeded the legal rate, the contract was not void ; but the excess paid was taken to reduce the principal, or if that were paid, could be recovered as money not due. (D. 22, 1, 20 ; D. 22, 1, 29.) Interest might be due by agreement as part of the terms of the contract. In contracts bonaefidei interest could be attached by a mere pact without stipulation ; but this could not be done in contracts stricti juris {i.e. in stipulation and mutuum). In the case of loan, a verbal promise to pay interest without stipula- tion amounted only to a natural obligation. To this rule, how- ever, exceptions were made in loans by bankers (Nov. 136, 4), in loans by municipalities (D. 22, 1, 30), and in loans of corn or barley (C. 4, 32, 12). IV. Mora and its consequences (Laches). In the opinion of the jurisconsults, mora was a difficult term to define. A rescript of Antoninus Pius is quoted to this effect : — "Whether mora exists, is a question that cannot be deter- mined by any imperial constitution or response of a juris- consult, since it is a question of fact rather than of law." A person is in mora generally when he does not perform his promise until after the time that he is bound to do so, and for the most part that time was after a demand for performance had been properly made and refused. (D. 22, 1, 32, pr.) There 654 CONTRACT GENERAL CHAPTER. was no mora if the existence of an obligation was in good faith disputed, and the creditor challenged to bis legal remedy.^ (D. 22, 1, 24, pr. ; D. 22, 1, 47.) A husband bequeathed to his wife the usufruct, and, if they had any children, the ownership, of a third of his property. The heirs of the husband accused the wife of forging the will, and of other crimes. Until she was acquitted of those charges, she could not recover. her legacy. The charges were unfounded ; and a child was bom, thus giving her a right to the ownership of a third. It was held that she could demand the income for the period during which she was kept from her property by false charges. (D. 22, 1, 48.) Gains owes the slave Stichus to Titius, but Titius agrees not to sue him for a certain period. After this pact, and before the time expired, Stichus died. Could mora be attributed to Gains ? No, because Titius by agreement divested himself of his right to demand Stichus. (D. 2, 14, 54.) Maevius promises Eros after two months to Sempronius. At the end of one month Sempronius demands Eros. Before the end of the two months Eros dies. Has Maevius made mora ? No, because the demand was premature. (D. 45, 1, 49, 3.) 1. The eifect of mora by a debtor. (1.) In leg&cieB, fideiconzmissa, and honae fidei contracts, mora by a debtor subjected him to the payment of interest. (D. 22, 1, 32, 2.) But no interest was due from mora in the formal con- tracts and mutuum ; that is, in contracts stricti juris. Interest was due, however, not as a matter of right, but only of judicial discretion. If the judge thought interest ought to be given, he could give it, but he was not compelled in every case of mora to do so. (D. 19, 1, 49, 1.) The amount was determined by the rate of interest current in the place (D. 22, 1, 1, pr.), but miist in no case exceed the limits fixed by law. (C. 4, 32, 26, 1.) (2.) Mora throws on the debtor all loss arising from the destruction of the thing promised by accident without the fault of the creditor or debtor (periculum rei). (D. 44, 7, 45 ; D. 45, 1, 91, pr. ; D. 7, 1, 37 ; D. 45, 1, 91, 3.) 2. Effect of mora by creditor. A creditor by improperly refusing to accept a discharge of the debt, not only releases the debtor from paying interest for delay, but must bear the loss of the accidental destruction of the thing promised. (D. 46, 3, 72.) Gaius stipulated for Dama or Eros. Titius, the debtor, brought Dama. Gains refused to take Dama, who afterwards died. Gaius cannot then sue for Eros. (D. 45, 1, 105.) Julius owed Cornelius 10 aurei, and took the amount to him, and he, without good reason, refused to take it. By mischance Julius lost the money. If Cornelius sues he can be defeated by the exceptio doli mali. (D. 46, 3, 72, pr.) 1 Qui sine dolo malo ad judicium provocat, non videiur moram facere. (D. 50, 17, 63.) Secottlr 3Bibi!8icn. QUASI-CONTRACT AND STATUS. Rights in personam arising from the consent of the persons bound have now been examined. But rights in personam may exist without the consent of the persons bound. Such rights were said by the Roman jurists to arise quasi ex contractu. Rights in personam arising from consent are contracts ; rights in personam arising by operation of law are quasi-contracts. It seems, however, desirable to subdivide this last-mentioned class. Some quasi-contracts come very near contract, and are governed by precisely the same considerations. Others, such as tutela, have very little in common with contract. In some cases the relationship created by quasi-contract is temporary, and for a single transaction ; in other cases it is permanent, lasting even for the whole life of the parties. It would seem expedient, therefore, to confine the term quasi-contract to those cases where the legal duties created by law are closely analogous to those of contract. The term " status " may be taken to apply to those cases where a permanent relationship is created by the law, where the duties imposed upon a person are imposed upon him as a member of a class. This group includes the following heads : — Patron and freedman ; Parent and child ; Husband and wife ; Tutela; Cur a. QUASI-CONTRACT. The examples to be given of quasi-contracts all resemble the equitable contracts. If a bilateral agreement not enforceable by law is performed by one of the parties, we have seen that by means of the actio in factum praescriptia verbis the other party could be compelled to perform his promise or pay damages. But in certain cases the law did not go quite so far, and when the performance took the shape of delivering property, contented 656- QUASI-CONTRACT. itself with ordering restitution. In these cases the remedy was by condictio. Restitution was given in several cases, which are thus enumerated by Paul: — (1) where money not due has been paid by mistake {ob indehitum) ; (2) where property has been given in terms of a compromise never carried out {oh trans- actionem) ; (3) or when given under a condition that has been broken (ob conditionem) ; or (4) for a past consideration {oh causam) (D. 12, 6, 65, pr.) ; or (5) for a future consideration {ob rem). (D. 12, 6, 65, 4.) Generally, when a person had given anything in order that something might be done, and it was not done, or that something might not be done, and it was done, there was an equitable ground for restitution. This is the meaning of the phrase. Causa data causa non secuta. Trusts. — One of the most important cases of restitutory procedure was in trusts. It was possible during the Empire, by means of fideicommissa, to establish trusts, but at no time could trusts be created by act inter vivos. The examples presently to be cited will show^ to what extent trusts were recognised, but the leading facts may be briefly stated. Suppose A. agreed to give property to B., which B. undertook to sell, and to give the proceeds to G. As between A. and B., all the ingredients of a contract are present ; but neither could A. force B. to accept the property^ nor could B. compel A. to deliver it, if meanwhile A. had changed his mind. The trust could not be enforced as between A. and B., and still less at the instance of C, who was no party to the contract. But suppose A. has given the money or other property agreed upon to B., but B. has not given the proceeds to C. Here two possibilities have to be considered. B. may refuse to do any- thing, and simply keep the property as it was given to him ; or A. may repent of his intended liberality, and desire B. to give him back his money. In both cases the remedy is the same. Neither C. nor A. can compel B. to execute the trust, but A. can require B. to restore his property. So if A. repents, B. must give him back the property; and he has no right, nor has C. any right, to enforce the trust. At what point A. could intervene and change his mind before the trust was executed, depended upon the circumstances of the case. (D. 12, 4, 3, 2.) The father of Sempronius gave lands to his sister Claudia, on condition that she should satisfy his creditors. Claudia accepted the lands, but did not satisfy the creditors. Sempronius, the father's heir, being liable for the debts, was entitled to have the gift set aside and the property returned to him. (C. i, 6, 2. ) TRUSTS INTER VIVOS. 657 Tryphon, an heir, is orcleretl by his testator to erect a monument according to an amount to be settled by Dama, a freedman. Tryphon gives Dama a sum of money to raise the monument, which Dama does not apply for that purpose. Dama must return the money to Tryphon. (D. 12, 4, 11.) Titius gives his slave Stichus to Gaius to manumit him. Before the manumission takes place, Titius sends a messenger to request Gaius not to manumit Stichus, but to give him back, Gaius disregards this message and manumits Stichus. What remedy has Titius ? According to Ulpian (D. 12, 4, 5, 1), Titius can sue Gaius for the value .of the slave, as the manumission was irrevocable. But Julian treats this as a case of mandate, and adds an important qualification to the answer. If Stichus had been found out with some great wickedness, as falsifying his accounts or plotting against the life of his master Titius, Gaius was bound to act upon the message sent him ; but if there was nothing against the character of Stichus, he was justified in manumitting, even after the express orders of Titius to the contrary. (D. 17, 1, 30.) SemproniuB gives Titius 10 axirei to buy a slave and manumit him, Titius buys a slave for the money. Before the manumission the slave runs away. Sarapronius now sends a message to Titius requesting him not to manumit the slave. Sempronius may require Titius to promise to give up the slave it he should catch him. (D. 12, 4, 5, 2.) Calpurnius gives to Julius a sum of money to manumit his slave Pamphilus. Julius accepts the money, and sets out with Pamphilus to. go before the Prsetor to manumit him. On their way they are attacked by robbers, and Pamphilus is killed. Can Calpurnius demand back his money ? No ; because the failure of Julius to manu- mit Pamphilus was not his fault.' (D. 12, 4, 3, 3.) Titius gives Gaius money to manumit his slave Stichus. Gaius accepts the money, but before the manumission Stichus deserts. Can TitiuS' demand back his money? The answer depends on circumstances. If Gaius intended to sell Stichus, and Titius paid the money to stop the sale, he cannot ask back his money. Gaius must, however, promise to return the money if the slave is' caught, less' his depreciated value in con- sequence of running away. If Gaius had no intention of selling Stichus, and the intervention of Titius was purely voluntary. Gains- must refund the money, unless he can show that the prospect of manumitting Stichus made him keep an insufficient watch over him. If Gaius refuses to manumit Stichus on account of his having run away, Titius may require him either to give up Stichusj or to restore his money. (D. 12, 4, 5, 3.) . In the case of trusts, there is uo consideration on the part of the trustee, or of the beneficiary. In other cases a consideration may be present.. Titius gives Gaius 5 aurd not to sue him.' Gaius sues Titius. Titius can then demand the restitution of his money. (D. 12, 4, 3, pr.) Sempronius gives Maevius a sum of money to build a house for himself on his own land. Maevius takes the money, but does not build the house. Unless it appears that Sempronius would not have given the money except for that purpose, the mere fact of Maevius not building wiU not entitle him -to revoke the gift. (D. 24, 1, 13, 2 j C. 4, 6, 8.) Money paid bx Mistake. The proper place for this topic caused considerable perplexity to the Roman jurists. Gaius makes out an analogy with the contracts re. ^ Pecunia a te datamj si kaec causa, pro qua data est, non culpa accipieniis, sed foTiuito casu non est secuta, minime repeti posse certum est. (C. 4, 6, 10.) 2 T 658 QUASI-CONTRACT. The man, too, that has received money not due to him from one that paid it by mistake, incurs an obligatio re. And if an action is brought against him to obtain repayment, the plaintiff is given an actio condicUtia. For a condictio SI PARET EUM DARE OPORTERE is allowed, just as if the money had been received on loan. Hence [some think] that a pupillus [or a woman] to whom money not due has been paid by mistake, without the authority of the tutor, is not liable to an indebiti condictio any more than for money given on loan. But this kind of obligation does not really arise out of contract. For he that gives the money with the intention of paying a debt, wishes to break off old business rather than to contract new. (J. 3, 14. I ; G. 3, 91.) Justinian brings it under the general head of Quasi-Contraot, but also remarks on the analogy with Mutuum. Again, he to whom a man has by mistake paid money that is not due, is held to owe the money as if by contract. Strictly, indeed, it is not by con- tract that he. has incurred the obligation ; so much so, that if, as we have said above, we are to follow out the rationale of the case more precisely, he may be said to have incurred the obligation by breaking off business {ex distractu) rather than by contracting it {ex contractu). For he that gives money with a view to paying a debt, seems to give it in order to break off old business rather than to contract new. And yet the receiver incurs an obligation just as if a loan were given him, and is therefore liable to a condictio. (J. 3, 27, 6.) A right to recover money paid by mistake existed when the following circumstances concurred : — I. The thing given or money paid must. not be for a debt, either civil or natural. II. The belief in the existence of the debt must have been due to a mistake 6f fact, and not of law, except in certain specified cases. I. There must be no real debt, either civil or natural. Although performance of a naturalis obligatio will not be enforced by a court of law on the application of the creditor (naturalis creditor), yet if the ■ debtor voluntarily performs the obligation, he cannot ask restitution. (D. 12, 6, 51.) A master owes his. slave money, and after manumitting the slave pays him the amount, under the erroneous idea that he was bound to do so. He cannot recover the money, because the debt constituted a natural obligation. Tryphoninus, remarks that the relation of debt between master and., slave is one. recognised only by natural law {jus naturale). (D. 12, 6, 64.) A woman, under the erroneous belief that she is bound to give a dos, settles some of her property. She cannot recover the money settled, because, throwing out of account her error, she ought to adhere to the settlement out of a proper feeling {pietatis coma). (D. 12, 6, 32, 2.) Titius thinks he has promised 10 warei to Gaius when- he has promised to-Maevius. Titius pays to Gaius. Titius can recover the money from Gaius. (D. 12, .6, 22, pr.) CON0ICTIO INDEBITI. 659 A legacy is paid under a will. It is afterwards discovered that the will is not genuine, or that it is void. The amount paid can he recovered (D. 12, 6, 2, 1), sub- ject to the rule that the error is one of fact only. (C. 4, 5, 7.) Gains buys his own slave from Sempronius. Sempronius must restore the price paid by Gaius, whether he knew that the slave was not his own or not. (D. 12, 6, 37.) Two sureties promised 10 aurei for a debtor. The debtor paid three, and afterwards the sureties paid five each. The surety who paid last can recover three from the creditor. (D. 12, 6, 25.) Two sureties are jointly liable for 10 aurei. At the same time they each pay 10 aurei. Each can recover 5 a«rei fromi the creditor. (D.l^, 6, ,19, 4.) Gaius bought land from Titius. Before delivery, Gaius died, leaving an injunc- tion to his heir that Titius should not be required to deliver -the land. In ignorance of this, Titius delivered the land. He can recover it, because the obligation to deliver it was released by the will of Gaius. (D. 12, 6, 26,, 7.) An agreement has been made between a patron.and his freedman of release from service {operae). If after that the fceedpaan by mistake genders service, he can recover the value. (D. 12, 6, 40, 2.) A debtor pays to a person who falsely pretends to be the agent of his creditor. He is not released, but can recover the money from the false agent. {C. 4, 5, 8.) A robber lets a house.and receives the rent, or lets a ship and receives the freight, or lets the services, of _ slaves and receives their wag^s. In a,ll these cases payment cannot be recovered, and the debtor is discharged. But if the owner let the house or the ship or the slaves, and the robber merely took the rents, then the debtors are not discharged, but they can sue the robber for the recovery of their money. ,(D. 12, 6, 55.) Titius thinks he owes either Stichus or Pamphilus. He really owes Stiohus, but delivers Pamphilus. He. can recover Pamphilus, for that is not an equivalent for the delivery of Stichus. (D. 12,, 6, 19, 3.) A vendor delivers land free from servitude, when, according to agreement, it ought to have been burdened with a right of way (iter). The, vendor can sue'to have the right of way set up. (D. 12, 6, 22, 1; D. 19, 1, 8, pr/) An heir is bound to give.a part of a, house to a legatee on a partipular day. Before the day named, the house was partly burned, and it was repaired by the heir. At the proper time he delivered the part of the house without reserving what he had spent on its restoration. He can sue the legatee for the expense. (P. 12, 6, 40,-1.) Money paid: by order of a . court, , even when the order is wrong, is not money pAid by mistake. (C. 4, 5/1.) So money paid to avoid a penalty is not considered as p9,id by mistake. There are certain cases; however, in which repayment cannot bedemanded, although the money was not due, but was paid by mistake. The ancients have determined that this is so in cases where the arfiount to be sued for (Us) increases, if liabihtyis denied, as under the lex Aquiiia j and also in the case of .a legacy. This the ancients indeed wished to apply to those legacies only that, are definite in amount, and bequeathed per damnationein. But our constitution, since it has allowed all Jegacies or trusts one and the same nature, has extended, this increase to ail. It has not, however, granted this right to all legatees, but only in the case .of legacies or trusts left to consecrated churches, and the-iother places worthy of veneration, that are honoured in view of their religion or piety. If these legac;ies are paid, although not due, repayment cannot be demanded. (J. 3, 27,7.) 66o QUASI-CONTRACT. As to the lex AquUia and double damages, see p. 331. Legacies per damnationem will be explained subsequently. (Book III., Legatum.) II. The money paid must be parted with in ignorance of some faet, not of law. (C. 4, 5, 6 ; C. 1, 18, 10 ; D. 12, 6, 1, 1.) Every one was taken to know the law. (C. 1, 18, 12.) Regula est, juris quidem ignorantiam euique nocere, facti vera ignorantiam non noceve. (D. 22, 6, 9, pr.) The reason assigned is that law can and ought to be definite ; but the most circumspect cannot know everything.- Cum jus-finitum et possit esse, et deheat ; facti inferpretatio'plerumque etiam prudentissimos fallat. (D. 22, 6, 2.) A. does not knoW that B. is hiscognate. Is' this- an error of law or fact ? If A. knows that both he and B. are free, and from whom they are born, but is not aware that B. is- thereby a- cognate, it is an error of law. But if A. was exposed by his parents, and did not know them, or served as- a slave, the error would be one of fact. (D. 22, 6, 1, 2.), He that in ignoraabe of his rights as'heir neglects'to claim the Palcidian fourth, and pays- the legatees in full, cannot recover the excess from them. (C 22, 6, 9, 5.) A debtor knowing facts that amount to an absolute equitable defence {perpetuct exceptio) promises a sum of money as the price of his release from the debt. He cannot avail himself of the condictio itidehiti. (D. 12, -6, 24.) Secus, if the error waa of fact. p. 12, 6,26, 7.) > Every error' of fact does' not' excuse, but only such errors as a man ■ might fall into notwithstanding ordinary care. If the error implies a' want of due diligence, -no relief is given. A man cannot plead ignorance of what everybody but himself well knows. Thetrtle standard is not that set by the most inquisitive or the most careless man, but by the man of ordinary diligence. (D.' 22, 6, 9, 2.) Sabinus said, error of fact, to ex- cuse, must not be the error- of' a^ foolhardy speculator. (D. 22, 6, 6 ; D. 22, 6, 3,40 Exceptions. — Sotae persona 'obtain relief even from errors of law; 1. Minors (under twenty-five) and, a'fm'iiori, those under the age of puberty (acting without their tutores), are not fastened with the consequence of ignorance of law. (1). 22, 6, 10 ; D. 22, 6, 9, pr.) A minor giving a- loan to a, filiusfamilias was relieved from the effect of the &»afus Consultum Macidonianiuni. (D. 22, 6, 9, pr. ). 2. V/omen are sometrmes eiicused. ■ (D. 22, 6, 9, pr.) Thus ignorance of pro- cedure—as in the production of dociiments^did not expose women to the usual penalty. , (D. 2, 13, 1, 5: ) Leo (a.d. 469) confined the relief to cases where women were expressly exempted frOm the provisions of any statute. (C. 1, 18, 13.) 3. Soldiers. A^fiUutfamilias soldier is 'made heir by his comrade, but fancies he cannot enter on the inheritance without his- father's- permission.- He is relieved from the consequence of this error. (D.-22, 6, 9, -1.) 4. Generally a man was excused if he had no opportunity of taking the advice of a jurisconsult, aniwas not himself acquainted with the law. (D. 22, 6, 9, 3.) 5. A peasant (agricultor), or like ignorant person, was excused. (D. 22, 3, 25, 1.) 6. When there was a difference of opinion between the two great schools (Sabinians and Proculians) on a point of law, a person was safe in following either. NEGOTIORUM GESTIO. 66 1 Remedy (Condictio Tndeliti). 1. The Burden of Proof .— 11 the defendant admits receiving the money sought ti) be recovered by the condictio indebiti, but affirms that it was paid for a subsisting debt, then the plaintiff must prove that the money, although paid, was not really due. If the defendant denies receiving the money, and it is proved to have been given him, the burden of proving that the money was due rests .upon him. (D. 22, 3, 25, pr.) When, however, the plaintiff is a minor, or woman, or other person excused from errors of law, the burden of proving the fairness and legality of th« transaction rests wholly upon the defendant. (D. 22, 3, 25, 1,) 2. The tneasiire of damages depended on the nature of the perf ormatvce it was sought to rescind. Thus, if com had been given by mistake, the quality of the grain must be taken into account ; .and if it is used,, the price of it must be paid. (D. 12, 6, 65, 6.) If by mistake a house is given, the measure of damages is not what the plaintiff would have let it for, but how much the defendant would have given for, jt. (D. 12, 6, 65, 7.) A. by mistake gives B.-a slave. B. manumits the slave. If B: knew that the slave was not due to him, he must pay the price of the slave ; but if he did not, he is bound only to surrender the rights he has acquired as the patronus. of the sl^ve. (D. 12, 6, 65, 8.) A slave not due has been given to .a man, who, ignorant of the mistake, sold the slave for a> trifle. He, is liable to pay only the price he actually obtained. (D. ,12, 6, 26,12.) When a freedman has done work from which he was released, the ,measure of damages is the wages, he would h,ave got. (D. 12, 6, 26, 12,) NEGOTIORUM GESTIO. The rt-egotiorum gestor ie one that has done something for another without being asked. He may be compared with the ■mandatarius. (D, 44, 7, 5, pr.) The A ctio negofio.rum gestorum was introduced by the edict of the Prsetor. He gave an action to a person that had acted for another, whether that other were alive or not at the time of the transaction.^ Therefore when a man manages the business of another that is away, on both sides actions arise between the parties, called actiones negotiorum gestorum. The owner of the property managed may bring against the manager an actio directa; the manager in turn an actio contraria. These actions, it is clear, do not arise strictly from any contract, for they arise only when without any mandate a man voluntarily comes in to manage another's business. They, therefore, whose business is managed, incur an obligation, and that without knowing it It was for the sake of expediency that this was received ; lest when men were forced to hurry away suddenly, and went from home without giving anyone a mandate to administer their affairs, their business should be neglected. And certainly no one would look after it, if he were to have no action for what he spent. Again, as he that has managed the business for the good of its owner has put the owner under ' Si quii negotia alterius, sive quis nerjotia, quae cujusque cum is moritur fucrint, gesserit; judicium eo nomine dabo. (D. 3, 5, 3, pr.) 662 QUASI-CONTRACT. an obligation to him, so he, too, in turn, is bound to give an account of his administration. In this case every man is compelled to give an account with the utmost possible diligence ; for it is not enough to display the same diligence that he usually displays in his own affairs, if anyone else of greater diligence would have administered the business to greater advantage. (J. 3, EiSHTS'AKD Duties. A". Duties of tHe Negotiorum Geston I. As in the analogous case of mandate, the gestor must account to the person for whom he acts. (D. 3!, 5, 2.) The gestor recovers from a" debtor a sum exceeding the debt. He must give up thfe ieilcess; although he could not recover from 'the principal any sums that he paid, which the principal did not really owe. (D. 3, 6, 23.) The gestor must pay interest-to the prmcipal for-the balances that he retains in Ms hands. (D.- 3, -S, 31, 3.) ' II. The responsibility of the Negotiorum GestoP. 1.- Responsibility for Omissions. The gestor was in a materially diHer'ent position from a tutor, curator; or ag&nt. These undertook particular duties^ the non- performance of which exposed them to art actiorr. But the gestor undertakes nothing, and consequently, pnma /acie, cannot be sued for omissions. (G. 2, 19, 20.) But' this statement must be limited by th& requirements of good faith (bona fides'); and there- fore, if he neglected to sue a debtor of the principal,, and the debt was lost, he- must- make good the amount- to the principal. (D. 3, 5, 8, pr.) More particularly was this the case when the gestor himself owed anything to the principal. It was necessary, however, to the responsibility of the gestor, that' the principal should be in a position to exact the performance of the obliga- tion. Thus, if the gestor has an article' belonging to- the principal in his custody as a pledge, he was not bound tb give it up unless he had under his control money belonging to the principal sufScieut to discharge the debt. (D. 3, 5, 35, l!) The* gestor was bound to discharge the creditors of the priilcipal, if it- was the interest of the principal that they should be paid. A debtor of Gains died owing him 50 avrei. Gaius, although not 'the heir, under- took the administration, which left him 10 aurei out of pocket. On a sale of the inheritance, a sum of 100 aurei ■was ' deposited in a chest, and lost -(Cithout the fault of Gaius. Can Gaius recover from Titius the heir, either the debt of 60 aurei, or the 10 awei that were spent ? This depends on -wshether it.wasthe duty of Gaius to pay himself out of the 100 aurei procured by the sale. If it was, then Gaius not only loses his 50 aurei, but must make good the other 50 to Titius, less the 10 aurei he had NEGOTIORUM GESTIO. 663 spent. But if there were any outstanding claims or liabilities that made it judicious to reserve the money instead of paying the debts, then Gains can recover from Titius both the original debt of 50 aurei and the 10 aurei that were spent, (D. 3, 5, 13.) 2. Responsibility for Acts. The class of negotiorum gentores is based on a negative rather than a positive idea; on the absence of the authority of the principal rather than the character of the agency. There might accordingly be a- most important difference in the acts a gestor might be requii-ed to do, as well as in the degree of responsibility attached to him. According to circumstances a gestor might not be liable for negligence, or%e might be answer- able even for accident.. A gestor was responsible for dolus only,, and not for negligence or- accident (cnlpa, casiei), if he' acted, so to speak, with reluctance, and in order to prevent a serious evil befalling the principal. Thus,, if he interfered" to prevent the bank- ruptcy of theprincipaL (D. 3, 5,. 3, 9.) But where a gestor intervened without urgent necessity, he was bound to show due dihgence. Thus, if he undertook the management of money, he was bound to lend the money at interest to solvent persons, although he Wras not responsible for the loss, of the money if they were afterwards, through unforeseen circumstances, unable to repay the loan.' (D. 3, 5, 37, 1.) As a general rule, a gestor was not compelled to make good losses resulting from accident (C. 2, 19, 22), unless his inter- ference was. uncalled for. {Culpa est, immiscere serei ad'se non pertinenti, D. 50, 17, 36.) A, gestor y^&s liable for loss by accident when he made enterprises foreign to the habits of the principal. Thus if he- buys raw and unskilled slaves,, and they do damagCjhe must pay the loss ; but if some of the enterprises yield a profit, others a loss, the gestor may set off" the gain against the loss, and must make good only the balance of loss. (D. 3, 5, 11.) On the death of the principal, the gestor was not obliged to begin any new transactions, but he ought to complete those already entered upon.. (D. 3, §,.21, '2.) B. Duties of the Principal I. He must pay the expenditure incurred by the gestor for his benefit. (D. 3, 5, 45, pr.) Titius acting for the absent Sempronius repaired a ruinous house, and hired medical aid for a sick slave. Titius is entitled to his expenditure, although the house should 664 QUASI-CONTRACT. afterwards he accidentally burned, or the slave die, and so Sempronius derive no benefit from the expense. This was the opinion of both Labeo and Ulpian. But Proculus started this difficulty : Suppose Sempronius had given up the house as not worth repairing, or as one that he had no use for. In this case Titius would fail, for the expenditure could not be called beneficial. (D. 3, 5, 10, 1.) A testator desired his freedman to accept a certain sum to build a tomb to his memory. The freedman cannot recover more than that amount from the heir, although he may have spent more. (D. 3, 5, 31, 4.) II. The principal must pay interest on sums paid on his behalf by the gestor, when the payment was necessary. (C. 2, 19, 18.) Titius lent money to pay a debtor of Gains. It the non-payment of the debt would have involved the sale of a pledge or a bankruptcy. Gains must pay interest. This is a fair price to be paid for deliverance from a great evil, and the rate of interest was to be governed >by the custom of the country. If, again, Titius had to borrow the money, Gaius must restore the amount of interest paid by Titius, unless he failed to derive any equivaLentadvantage. (D. 22, 1, 37.) Investitive Facts. The relation ,of negotiorum gestio is constituted when the following facts co-exist : I. One pereonr— thegresio?' — must act for another (dominus rei gestae). II. There must be no mandate. III. The gestor must not have b^en forbidden to act by the principal (dominus). IV. The gestor must a«t -.with the intention of binding the principal. I. The gestor must act for another than himself. If a person acts in another's business, with a view only to his own profit, he is not atiue ,negotiorum gestor, because he acts for himself, not for another. Nevertheless, he will be liable to the actio negotiorum gestorum .without having any claim for expenses, except in so far as his conduct has resulted iu benefit to the principal. (D. 3, 5,; 6, 3.) Gains is tutor to Titius, and Sempronius pays a debt of the pupillus without the request of Gaius, in order to prevent Gaius suffering for his neglect. Sempronius can recover the money from Gaius. (D.; 3,; 5, 6, pr. ) One of two joint-owners defends their land against a claim of servitude. He can recover half the expenses from they,o);her joint-owner. (D. 3, 5, 31, 7.) Gaius demands from Titius payment of a sum alleged to be due to Sempronius. Titius pays Gaius. Sempronius.^l^terwards learns this, and ratifies the payment made to Gaius. Does this enable him to sue Gaius for the money ? Julian says he can ; because Sempronius having ratified the act of Gains, can be sued by Titius for the recovery of the money he paid by mistake ; and if that ratification makes him respon- sible, it should also entitle him to demand the money from Gaius. (D. 3, 6, 6, 9; C. 2, 19, 9.) NEGOTIORUM GESTIO. 665 Julius sues and recovers a sum from the debtor of the deceased Titius, to whom he imagines Gaius is heir. Seius is the true heir. Gaius, also by mistake, ratified the act of Julius. This malces Julius the negotiorum gestor of Gaius. The ratification, as regards Julius, puts Gaius in the position of heir. (D. 3, 5, 6, 10.) Julius, thinking Gaius to be heir, repairs the hereditary mansion. Gaius under the same erroneous belief ratifies the act. Julius cannot sue Gaius, but must sue the real heir, because he alone is benefited by the repairs. (D. 3, 5, 6, 11.) II. There must be no valid mandate, for the object of intro- ducing the actio negotiorum gestorum was to supplement the law of mandate. (D. 17, 1, 6, 1.) A remedy may thus be obtained where a person has acted as agent in mistake, under the impression that he was authorised ; or where the agent is incapable of binding himself by a con- tract ; and generally, when it is equitable, in the absence of express agreement, that a person should be recouped for expenditure made with a view to benefit another. Gaius, under the mistake that' he was requested by Titius, becomes his surety (fide- jussor). Gaius, if he is compelled to pay, caimot sue on mandate, since Titius never requested him ; but he can sue a^a negotiorum gestor. (D. 3, 5, 5, pr.) If, in the same case, Gaius thought he was acting for Titius, but really for Sem- pronius, he has the same remedy against Sempronius. (D, 3, 5, 5, 1.) A person acts for the joint property of a husband and wife, with the authority of the husband alone. He can sue the husband on mandate and the wife as a negotiorum gestor. (C 2, 19, 14.) Titius (a freeman.), under the erroneous belief that he is a slave of Jtilius, acts on behalf of Julius. Titius is a negotiorum gestor, because with a slave there could be no contract of mandate. (D. 3, 5, -36.) Sempronius gave to a freedman or friend a mandate to borrow money. The letter was shown to Gaius, who on the faith of it lent money. The creditor, although there has been no mandate, and no cqptract with Sempronius, can sue him for the amount as a negotiorum gest&r. (D. 3, 5, 31, pr.) III. The gestor must not have been forbidden to act by the principal. (D. 17, 1, 40.) IV. The intention of the gestor must be to bind the principal ; if he acts, without expecting to be reimbursed, from motives of liberality, or -simply in the performance of a duty, he is not a gestor. He that out of friendship to the father of pupilli petiti'ms for tulores to them, or to have tutores removed, has no claim for expenses as a negotiorum gestor (D. 3, 5, 44), according to a constitution of Severus. (C. 2, 19, 1.^ In like manner, a freedman has no claim against the daughters of his patron for the same service, because it is his duty {obsequium) so to act. (C. 2, 19, 5.) A husband cannot recover from his wife's fatlier what he has spent for her. But if in the expectation of being recouped he has paid the cost of her funeral, he can sue her father, to whom the dos had been given back. (C. 2, 19, 13.) A mother that has supported her children cannot recover the cost of their mainten- ance but money spent for the preservation or improvement of their property by her 666 STATUS. may be recovered by the aetio negotiorum gestorum. (C. 2, 19, 11.) Nor can an uncle recover what he has spent in maintaining his niece. (D. 3, 5, 27, 1.) In such cases the presumption was all but overwhelming that the motive was liberality, but where conclusive evidence existed to the contrary, those who were not actually liable in law for the maintenance of others could recover the money they had so expended. (D. 3, 5, 34.) A. father advances money to an emancipated son to enable him to prosecute his studies abroad. Is the sum so advanced to be regarded as a part of the share of his father's property to which the emancipated son is entitled ? The answer depends upon the intention with which the money was given. Was it intended as an advancement, or was It simply an instance of paternal liberality, or duty ?. On whichever answer is given depends the result. (D. 10, 2, 50.)> Remedies. I. By the principal (dominus rei gestce) against the negotiorum gestor. [Actio negotiorum gestorurti directa.) The object of this action is to make the gentor account, and generally to enforce his duties. II. By the gestor against the dominus, {Actio negotiorum gestorum contraria.) The gestor could set off his expenses-if sU^d in the actio directa, but if he did not adopt this mode, he could bring the actio contraria. If, however, the question of his claims were raised on an actio directa, he could not afterwards sue for them — as he would be met by the pl6a of res judicata: (D. 3, 5, 8, 2.)" STRATUS:. I. — PateoN and Freedman (PatronUs, Lih'ertus), The relation of master to slave was one of ownereliip. When the slave was manumitted,, a new relation wa&. established between him and his old master of an interesting character. In slavery, no civil rights subsist between master and slave. A slave cannot do a wrong to his master, nor a master to his slave. The rights of the master, like all rights in rem, arise from the duty imposed on all men generally of forbearing to interfere with him in the possession and'luse of his sl-ave. But the rights of the- patron are of a wholly different character. They are rights against the freedman solely.- The old master is no longer owner., he is creditor in respect of the services due by the freedman.. These services, when examined^.are found to constitute a prolongation ofrthe master's former- interest in his slave; so that a manumitted- slave, although free' as respects men generally, was still bound' to his old master- by ties of a substantial character. The services due by a freedman were a return to the master for his generosity in raising him from slavery. The obligation extended no further than the children of the freedman ; and thus, by a natural and easy process, as PATRON AND FREEDMAN. 667 the sense of the benefit conferred began to fade, the resulting duties were withdrawn, and the descendants of a manumitted slave took their place among free-born citizens. During the Republic there was but one class of freedmen — Roman citizens ; but after the lex ^lia Sentia (A.D. 4), and the lex Junia Norhana (A.D. 19), two new classes were introduced who did not enjoy the rank of citizenship — the Latini Juniani and Dedititii. These two classes existed during the Empire down to Justinian, who removed their disabilities, and restored the old single class of freedmen — Roman citizens. Of freedmen there are three kinds — Roman citizens, Latins, and those reckoned among \!a^: dedititii. (G. i, i-2.) Eeeedmen — Roman Citizens. Definition. Of freemen some are born -free {ingenui), others made free {libertini). (G. I, 10.) Freedmen {libertini) are persons that By manumission have been set free from lawful slavery. (J. I, 5, pr..; G. i, ir.) A freeborn raa.n'(ingenuus) \i a man that 'is free as soon as he is born ; and that whether he^ is brought forth in wedlock by two freeborn parents, or whether his parents, are freedmen, or one a. freedman and the other free- born. But if a man is born of a free mother while his father is a slave, none the less the child is freeborn. So- too is the 'son of a free mother and a father that is uncertain, ■ because he was conceived by a public woman. (J. I, 4, pr.) Now when' a child isfresborn,'- the fact that he has been in slavery, and thereafter been manumitted, never stands in his way. For it has been very often settled that manumission cannot stand in. the way of birthright. (J- I, 4> !•)■ Rights and Duties. A. Rights of Fatten (Patronus) = Duties of Freedman {Lihertus). I. Reverence {Ohsequium, Eeveretitia). A freedman was not allowed to bring an action against his patron without the prior consent of the Prsetor, (D. 2, 4,.4,,1.) If the patron had in- flicted very grievous injury on his freedman, or whipped him very severely, such consent was readily given (D. 2, 4, 10, 12) ; but in other cases all redress was peremptorily refused if the result of the action would be to stamp the patron with infamy (infamia). Hence the freedman could not sue the patron if he had been guilty of fraud (D. 37, 15, 5, 1), or force. (D. 37, 15, 7, 2 ; D. 37, 15, 2, pr.) The freedman could not sue 668 STATUS. his patron for cormpting bis slaves, even although a judgment against the patron would not have made him infamous. Even in the cases where a freedman was allowed to sue his patron, he could not recover more than the patron could afford to pay {in quantum facer e potest). (D. 37, 15, 7, 1.) If the freedman brought an action without leave obtained, or otherwise acted in disparagement of the respect demanded by the law, he was said to be ungrateful (ingratus), and we have already seen (p. 170) what Avas the punishment for that offence. The intei'ference of patrons with their freedmen seems to have gone to great lengths, if we may judge from the preten- sions that were negatived. It was laid down that a patron had no right to fix his freedman's place of abode (C. 6, 3, 12), or to prohibit him following his profession or occupation (I). 37, 15, 11) ; but a freedman was not allowed to follow the same business as his patron in the same place, if it were to the prejudice of his patron, (D. 38, 1, 45.) II. If the patron becomes so feeble -and poor as to require periodical supplies of food, his freedman is bound to support him, if he can do so. (D. 25, 3, 9 ; D. 25, 3, 5, 19.) The patron is not bound absolutely to reciprocate, but if he re- fused to aid an impoverished freedman he forfeited all his rights to the freedman's services, if any were promised, and all his interest in the freedman's property on his death, if at that time the freedman should have any. ' III. The patron had certain rights to his freedman's pro- perty on the death of the freedman {jura in bonis). These rights will be considered jjnder Inheritance. — :(Book IIL — In- testate Succession.) IV. Rights to the services of the freedman. {Operae liber- torum libertatis causa impositae ; operae ojfficiales?) As the duty of reverence was a prolongation of the legal disability of the slave, so the duty of rendering life-long service to the patron was a continuation of the material and valuable part of the master's interest in his slave. There was, however, an im- portant difference in the incidence of those duties. Every manumitted slave owed reverence to the person that manu- mitted him, for the duty was attached by law to the act of manumission ; but only those freedmen could be compelled to serve their patrons who had, in the manner presently to be described, expressly sworn and promised to do so as the price of their freedom. PATRON AND FREEDMAN, 669 Generally speaking, the freedman worked for his master a certain portion of every day. (Operae sunt diurnum oficium.) (D. 38, 1, 1.) If the patron did not find food and clothes for the freedman, he must leave him enough time to procure sustenance for himself. (D. 38, 1, 19 ; D. 38, 1, 22, 2.) When the amount of the work was not agreed upon at the time of manumission (D. 38, 1, 30, pr.), it was to be determined by the relative age, health, position, and other circumstances, of the parties. (D. 38, 1, 16, 1.) The kind of work was the same as the freedman had been accustomed as a slave to perform, or aiiy trade he might afterwards learn, if it involved no danger to life, and no dishonour. (D, 38, 1, 38, pr.) The work was to be done for the patron alone ; and except in special circumstances (e.ff., a pantomimus, archimimus, or medicus, whose services could not be iitilised except by making them work for money), the patron- was not allowed to let the work of his freedman for hire, or to require him to render his services to any third person.- (D. 12, 6, 26, 12 ; D. 38, 1, 25, 1.) The lex ^lia Sentia prohibited patrons from forcing their freedmen to give up to them the wages of their labour. The obligation of work was contracted by a verbal promise, accompanied by'oath. It was usual to make the slave take an oath before manumission, • although it had no legal effect, in order to- bind his conscience,-and as a security that, immediately on his manumission,-he would give the necessary legal promise. (D. 40> 12^44, pn) As soon as the manumission was effected, the freedman, by making a promise on oath to do work for his patron, effectually bound- himself in law. (D. 38, 1, 7, pr. ; D. 40, 4, 36.) The patron could not avail himsfelf of this obligation unless the manumission was gratuitous and voluntary. (C. 6, 3, 7 ; D. 38, 1, 13, pr.) If the slave bought" his liberty, he could not be burdened with the obligation of work. So if the person that manumitted the slave was not the owner of the slave, but a mere trustee for the purpose of manumission, although he acquired the valuable rights ofpatronage already described, he could not require the freedman to promise him service ; and a promise to that effect was void,-unless contracted by the freedman freely, and with a knowledge that it was not required of him by the law. (D. 38, 1, 47 ; D. 38, 2, 29, pr.) An exception was, however, made in favour of a son requested by his father to manumit a slave bequeathed to him; for the object of such a bequest was 670 STATUS. to give tlie son the full rights of patronage. (D. 38, 2, 29, 1; D. 40, 5, 33, pr.) The obligation must be contracted in good faith, as a mark of respect towards the patron, and not for the purpose of hold- ing the freedman in thraldom. (D. 44, 5, 1, 5.) The Praetor refused to enforce excessive work from the freedman. (LibeHatis onerandae causa.) (D. 38, 1, 2, pr.) Promises were regarded as void if they were imposed not with any intention of exacting their performance, but to hold them over the head of the freed- man as a threat, if he should displease or disobey his patron. (D. 44, 5, 2, 2.) Tlie obligation to work for the patron might be extinguished, without affecting the other rights of the patron, in the follow- ing ways : — 1. AYhen a freedwoman attained the age of fifty. (D. 38, 1, 35.) No such age was fixed for freedmen. 2. If the freedman or freedwoman attained such dignity as would render the performance of the work unbecoming, they were released from the obligation. (D. 38, 1, 34.) 3, The marriage of a freed- woman, with the consent of her patron,, released her from work during the continuance of the marriage. (C. 6, 3, 8 ; C. 6, 6, 2 ; D. 38, 1, 14.) 4. A freedman having two children subject to his paternal power (patiia potestas), was released by the lem Julia de maritandis. (C. 6, 3, 6, 1 ; ,J). 38, 1, 37, pr.) Investitive Facts. The relation of patron and freedman was created by the manumission of a person lawfully a slave. (J. ,1, 5, pr.) Divestitive Facts. A. By the Direct Act of the Patron and Freedman. I. The right of wearing gold. rings. (Jus aureorum annul- orum.) This privilege was obtained only by petition from the Em- peror. (C. 6, 8, 1.) Commodus (D. 40,10, 3)i required the con- sent of patrons to make the grant valid. At no time, however, did the imperial grant suffice wholly to take away the patron's rights; it did not affect his claim to reverence (D. 2, 4, 10, 3), nor his hopes of succession to his freedman's property. (D. 40, 10, 6.) Justinian (Nov. 78, 1) gave to every freedman the right of wearing gold rings, but without depriving the patron of his rights ; and consequently, this ceased, to be a divestitive fact. PATRON AND FREEDMAN. 67 1 In the earliest times, a consul enjoying a triumph wore an iron ring on his finger. Afterwards, as wealth increased, the Roman ambassadors when on a foreign mission wore gold rings, but only in public ; and in the time of Pliny, the right to wear them had not reached lower in the social scale than the equestrian order. Severus gave the privilege to his soldiers, and subsequently, until Justinian, the privilege of wearing gold rings marked off the freeborn from the manumitted class. II. Grant of the privileges of fi'eeborn citizenship. {Restitutio Natalium.) If we may judge from the name, this petition was at first employed only by those manumitted slaves who, after their escape from slavery, discovered that they were freeborn, and its object was therefore the restoration of birthrights. But it became the appointed means by which the stain of slavery could be wiped out, and the freedman to whom it was granted became as if he had never been a slave. (D. 40, 11, 5, 1.) He was thus put on an equality with freeborn citizens, and all the rights of the patron were taken away. (D. 40, 11, 2.) The restitution of birthrights was obtained by petition from the Emperor, and except in rare cases the consent of the patron and his children was essential to the success of the petition. (D. 40,. 11, 4; D. 40, 11,50 B. By Operation of Law. I. If either the patron or freedman forfeited his liberty or citizenship, the rights of the patron were extinguished. II. So if the patron or his son without cause accused the freedman of a capital crime, >or . gave false evidence against him. (D. 38, 2, 14, 5 ; D. 2, 4, 10, 11.) A capital -crime, in the stricter sense of the word, was one punishable with death or loss of citizenship. (D. 50, 16, 103 ; D. 38, 2, 14, 3 ; D. 37, 14, 10.) III. If the patron or his children brought an action claiming the freedman as a slave,, and failed, the rights of patronage were forfeited. (D. 38, 2, 14, pr. ; D. 38, 2, 16, pr.) IV. The patron's refusal or neglect ,to support his ' freedman when in distress according to the lex jEUu, Sentia. (D. 38, 2, 33 ; D. 37,' 14, 5, 1.) v. If the patron made his freedman swear not to marry, he forfeited his rights. (D. 37, 14, 15 ; D. 2, 4, 8, 2.) The object of this oath was .to enable the patron on the death of his freedman to get the whole of his property. VI. The marriage of a freedman with any female slave or colona of the Emperor, with the knowledge of the patron, extinguished his rights. (C. 6, 4,. 2.) Remedies. :: Services. An action was given by the. Praetor against, a freedman who neglected 672 STATUS. to perform the work agreed upon. (D. 38, 1, 3, pr.) The measure of damage was the value of the work undone, not the loss sustained by the patron in consequence of the non-performance. (D. 38, 1, 26, 1.) f REEDMEN, LATINS {LATINI JUNIANI). These were slaves whose manumission did not comply with all the conditions necessary to confer on them the rights of citizenship, and who by the lex Junia Norbana were placed on the same footing as the old Latin colonists. They are called Latini because they are- treated like Latin colonists ; Juniani because it was through the lex Junia [a.D. 19] they received their freedom, though formerly they were regarded as slaves. (G. i, 22.) Their rights and duties are identical with those- mentioned as applicable to citizen freedmen; but the Latins were subject to further disabilities. They are not allowed by the lex Junia either-'to make a will themselves, or to take under another man's will, or to be appointed tutores by will. (G. I, 23.) But in saying, as we have said, that they cannot take under a will, we must be understood to mean that they can take nothing directly as an inheritance or as legacies. In another form, however, that of a trust, they can take. (G. I, 24.) Investitive Facts.. When in a freedman's person these three requirements meet — that Ke is over thirty years of age, that his master was owner ex jure' Quiritium, and that he was freed by a lawful and regular manumission (thait is by vindicta, by entry in the census, or by will), then he becomes a Roman citizen.. If, however, any one of these is wanting, he is a Latin. (G. i, 17.) Under the lex jElia Sentia a slave under thirty years of age, if set free by will, becomes a Latin, — although the statute itself did not directly make him a Latin. (G. 1, 22, as restored.) A slave, again, over that age, but either manumitted by one having him in bonis only, though in lawful form, or set free before friends, but whose freedom is based on no other ground, becomes a Latin. All these, however, were at an earlier date protected as if free ; although they were slaves ex jure Qui- ritium the Praetor protected their freedom. But now persons manumitted in this way are called Latini Juniatti. (G. r, 22, as restored.) Among Roman citizens there are two forms of ownership {dorninium), in bonis and ex jure Quiritium j and a slave may belong to a master that owns him by either title or by both. But we say that the slave is in the poiestas of his master only if the master owns him in bonis, and this even although at the same time he belongs ex jtire Quiritium to a master that is not the same. For he that has the hzxe. jus Quiritium in a slave, is not understood to hay^ poiestas. (G. i, 54.) PATRON AND FREEDMAN. 673 Divestitive Facts. The divestitive facts of Latinitas are investitive facts of citizenship.. 1, When a freedman has a son a year old (annicuK prohatio). Ib many ways Latins come to reach Roman citizenship. In fact, that very /ex ^lia Sentia provides that a man under thirty years of age that has been manumitted and become a Latin may gain the citizenship as follows : — (i.) He must take to wife either a Roman citizen, or a Latin colonist, or a woman of the same condition as himself (2.) He must have this attested by not less than seven Roman citizens, above the age of puberty, summoned as witnesses. (3.) He must beget a son, and that son must be a year old. (4.) He must then, as allowed and indeed ordained by that statute, go before the Praetor (or in the provinces before the president of the province), and fully prove that he has under the lex yElia Sentia taken to himself a wife, and has by her a son a year old. (5.) The magistrate before whom the case is proved must further declare formally that it is so. Then the Latin himself, and his wife, if she too is of the same condition, and their son, if he also is of the same condition, become Roman citizens, as the statute ordains. The reason we have added in the case of their son, "if he also is of the same con- dition," is this, that if the Latin's wife is a Roman citizen, then her offspring, under a recent Senatus Consultuin passed at the instance of the late Emperor Hadrian, is by birth a Roman citizen. (G. i, 28-30.) Ulpian ascribes this to the lex Junia Norbana instead of the lex JElia Sentia. (Dip. Frag. 3, 3.) This right to gain Roman citizenship was Under the lex JElla Sentia pos- sessed by freedmen only if manumitted, and thereby made Latins, while still under thirty years of age.> But afterwards, a Senatus Consultum made when Pegasus and Pusio were consuls allowed the same right to freedmen manu- mitted and made Latins when over thirty years of age. (G. i, 31.) Nay, even if the Latin dies before proving the case of his son, now a year old, the mother can prove the case. By so doing both she and her son will become Roman citizens ;' and further, the son, just as if he had been begotten in lawful marriage, comes in as if a posthumous heir and obtains his father's goods. If both father and mother die, the son in person ought to prove the case, as it is his interest to obtain their goods, which will come to him along with the Roman citizenship. Of course, if he is still under puberty, a tutor must conduct his case. (G. i^, 32, as restored.) We shall see whether what we have said of a son a year old can be said or not of a daughter a year old/ (G. i, 32 a, as restored.) A child was considered to be a year old on the morning of its 365th day. (D. 50, 16 134. ) In reckoning time the law took no account of fractions of a day, and thus in cases of the acquisition of rights, the dawn of the last day was regarded as completing the year. Where rights were lost by lapse of time, a different calculation was adopted ; the rights were held not to be extinguished until the conclusion of the last day. (D. 44, 7, 6.) 2 U 674 STATUS. 2. By a Senatus Consultum (probably Tertullianum), a Latin woman that had borne three children became a citizen. (Ulp. Frag. 3, 1 ; Panl, Sent. 4, 9, 8.) 3. Another mode of becoming a Roman citizen was by grant from the Emperor {Beneficium principale). (Ulp. Frag. 3, 2.) 4. A Latin became a citizen if his manumission was repeated with the requisite conditions observed {iteratio). If a slave belongs to one master in bonis, to another ex jure Quiritium, then one of those two masters can begin his freedom, the other renew and complete it. (G. i, 32 B, as restored.) If he has gained freedom and the position of a Latin from the master he belonged to, in bonis only, he ought with his consent to ask it from his master ex jure Quiritium also. When a slave belongs to one and the same master both in bonis and ex jure Quiritium, he may, when manumitted by him, both become a J^atin and gain the rights of a citizen {Jus Quiritium). (G. I, 35, as restored.) Again, if the slave became a Latin because he was under thirty when manumitted, he becomes a citizen if on attaining that age his master repeated the manumission by the vindicta. (Ulp. Frag. 3, 4.) 5. Further, any " Latin gains the rights of a citizen by building a ship to carry ten thousand modii, or even by buying one and carrying corn to Rome for six years, either with that ship, or, if it is lost, with another he has got in its place. This is pointed out in an edict by the late Emperor Claudius. (G. I, 32 C,, as restored.) 6. By &'lex Visellia six years' service in the vigiles or night- watch (niilitia) raised a Latin to the citizenship ; and the number of years was reduced to three by a subsequent Senatus Consultum. (Ulp. Frag. 3, $.) Tlie vigiles were instituted by Augustus as a body of firemen (D. 1, 15, 1), but from the duties of their chief officer {Praefeatus Viglluni) it may be inferred that they watched, robbers and disturbers of the peace as well. 7. Again, •an edict by the Emperor Nero provides that if a Latin spends not less than two-thirds of his patrimony in finishing a building in Rome, he shall obtain the rights of a citizen. (G. i, 33, as restored.) 8. Establishing a, mill and bakehouse (pistfinum). (Ulp. Frag. 3,;L) Or if he grinds dally not less than 100 modii of ■corn. (G. i, 34, as restored.) 9. By holding the office 0i jnagisti-ate in a Latin , colony. (G. 1, 950 patron and freedman. 675 Freedmen {Dedititii.) The dedititii were certain manumitted slaves, who, in conse- quence of grave misconduct committed in the state of slavery, were subjected to certain perpetual disabilities. Peregrini dedititii is the name for those aliens • that once took up arms and fought against the Roman people, but afterwards gave themselves up when beaten. (G. i, 14.) The lex jElia Sentia, accordingly, provides that slaves whose masters have put them in chains as a punishment, -or that have been branded, or examined under torture for some wrong-doing and convicted thereof, or that have been given up to fight with the sword or with wild beasts, or that have been thrown into a school for gladiators ror into prison, and h3.ve, .afterwards been manumitted eifher by the. same master. or by some one else, shall, when freed, be in the same, condition z& peregrini dedititii. (G. I, 13.) Slaves tlierefore so debased, no matter how they are manumitted or at what age, and even although their masters enjoy full rights over them, can never, we shall say, become Roman citizens or traders ; but in any case,, a,s we shall .understand it ^s settled, are ,to be recl^oned among the dedititii. (G.I, 15.) But if. a slave is not so debased, manumission makes him, we shall say, sometimes a Roman citizen, sometimes a Latin. (G. i, 16.) Th-osethat are reckoned among the dedititii cannot takeunder a will in any way, any more than a free alien can ; and, according , to the gener<^l opinion, they cannot themselves make a will. (G. I, 25.) Freedom in its worst form, therefore, is the, lot of those that are reckoned among the dedititii. To them no statute, no Senatus Consultum, np imperial constitution, gi^es any way of approach to Roman citizenship. (G. I, 26.) Nay .they are. even forbidden to stay in the eity of Rome, or within the hundredth milestone from the city. If they breajc this rule, it ^s ordained that they and their goods shall- be sold by the .State, upon the express condition that their slavery, is not to be in Rome, nor within the hundredth milestone from the city, and that they are never to be manumitted ; and if they are manumitted, it is ordaiijed that theysball become slaves of the Roman people. AH these, regulations are included in the lex yElia Sentia. (Q. j, 27,) The status of freedmen was formerly ithreefojd, rOf the persons nian,u- mitted some gained a greater degree of freedom, as recognised by law, and became Roman , citizens ; others a less, and became Latins under the lex Junia Norbana-; and others a, lower still, and 'thus came to be reckoned among the dedititii under the lex /Elia Sentia. But the worst of all, con- dition?, that of.tthe dedititii^ha.s long fallen into, disuse.; and the, name of Latins , is not .often heard. .Our goodness, therefore, that longs jto raise everything, and to bring it to .a,I?etter standing, has in two constitutions amended this, and brought it to its earlier state. For in Rome's early infancy the freedom that was open was one and, simple, the same (that is) that the njanumitter had, except indeed that the manumitted would be a freedraan, the manumitter freeborn. The class oi /dedititii, therefore, we have swept away by a constitution published among gur decisions, and iji th^se, 676 STATUS. at the suggestion of Tribonian, our distinguished Quaestor, we have set at rest the disputes arising under the old law. The Latint Juniani, too, we have dealt with, and all the rules observed with regard to them we have corrected in another constitution at the suggestion of the same Quaestor, a constitution that shines out brightly among the imperial enactments. To all freedmen then, with no distinctions as to age when manumitted, or as to the ownership' of the manumitter, or as to the mode of manumission,) such as were formerly observed, we have given Roman citizenship. Many ways too have been added by which freedom- with Roman citizenship, the only kind now known, may be secured to- slaves. (J. i-, 5, 3.) II.— Parent and Child: Children aftei* emancipation were not entirely ent off from their parents. A relation continued to subsist between them resembling that already described as existing between a manu- mitted slave and his' former master.- Children were emanci- pated by the same form that was employed in the enfranchise- ment of slaves ; namely,, manumission by the vindicta. The father thus acquired the rights of a patroui ,But the relation of the father, as patron, to his son,, is nearly as artificial as the potestas itself;' it is in fact an' attenuated prolongation of the potestas. It brings us no nearer to a natui'al relation, consisting of duties springing out of the natural relation between parent and child. To a very great extent,- however, the artificial relation of patron to an emancipated soii' coiucided with a natural orte. The position of legitiitiate children that had never' been' under' the potestas of- their fatlier, was almost iden- tical with the position of those that had been under the potestas and had been emancipated.- Still more, illegitimate children, the offspring of concubinage, were subject to nearly the same duties, and enjoyed nearly the same rights. Lastly, the mother,, as Well as the father, enjoyed similar parental rights and responsibilities; Thus the narrow rela-tion of patron to an emancipated child was broadened until it was nearly co- extensive with that of parent and child.- The following observations apply to (1) emancipated chil- dren; (2)' children born in: lawful wedlock,- but never subject to the poigste of their father; (3) natural children ; but not (after Justinian's time) to the offspring- of prohibited,/ incestuous, or infamous eouneotions.. ('Nov.-^SO, 1'5.) Rights and Duties. A. Rights of Parunts of both Sexes : Duties of Children. 1. Children owe to their parents reverence {phsequium, rever- PARENT AND CHILD. 677 entia). This reverence was the same as was exacted from freedmen towards their patrons. (D. 37, 15, 9.) II. Children having the means were bound to maintain their parents, if necessary. This duty arose only if the father or mother were in wEmt and the children were able to support them. (C. 5, 25, 1.) This duty extended not only to parents, but to all ascendants, both male and female. (D. 25, 3, 5, 2.) The mother of illegitimate children had a right to mainte- nance from them. (D. 25„ 3, 5, 4.) If a parent was in extreme distress, even the heirs of his children were bound to perform the duty that would hav.e fallen upon them if they had been alive. (D. 25, 3, 5, 17.) III. Parenits had certain rights of succession to the property of their children. i(Book Ill.^Intestate Succession.) A father emancipating a son could not exact from him any promise of services (operae) as the price of the, emancipation. (D. 37, 12, 4.) Nor iif the son promised such .services on oath was the promise binding. A son owes his father rreverence (pietas), says the Prsetor, not work (operae). ,(D. 37, 15, 10.) Tn this respect only is there a marked difference from the duties owed by a freedman to his patron. B. Rights of Children.: duties of Parents and .other Ascend- ants of both Sexes. 1. Parents, and, failing them, grandfathers, grandmothers, and other ascendants, are bound to maintain .their .children. (D. 25, 3, 5, 3.) This obligation -existed in the aibsence of the potestae. (D. 25, 3, 5, 1.) It extended to illegitimate children (vulgo any connection between a man and a free woman (not a slavte) other- wise than in marriage or concubinage, and p;:ovided the Woman was not married. (D. 48, 5, 34, pr.) Polygamy was not -allowed either in marriage or concubinage. (G. 5, 26, 1 ; C. 5,5,2; C. Os-OylS.).' Eights ' and ' I^uties»' According to the ancient law of Rome, marriage had two principal effects. It gave the husband at once large powers HUSBAND AND WIFE. 679 over his wife ; and if he had children, it gave hira still larger powers over them. The husband's rights in respect of his wife were summed up in the word manus; his rights over his children, in the word potestasi To the latest period of Roman history, marriage continued to bestow on the husband the potestas over his children; but dven beifore the Empire, pre- cautions were taken to^ prevent the husband acquiring the manus over his wife. Gaius informs us that in his time the manus rarely existed. What took the place of the manus f One of the principal rightb of the husband was to his wife's property ; in that respect the manus yielded to the dos. But the other rights involved in manus perished wholly. The manUs passed away without leaving behind it any relation like that subsisting between patron and freedman, or parent and child. It would be a- mistake, however, to suppose that' the Romans were destitute of fixed principles as to the conduct that hus-T bands and wives ought to observe towards each other. The wife, for instance, took the rank of her husband. (C. 10, .39, 9.)' But the rights and duties of a wife, as of a husband, rested simply on- a moral basis ; they were vindicated by the social sanction, not by the civil law. Perhaps the best criterion of the nature of marital duty is the- liability of the husband for the maintenance of his wife. There is perhaps no text that expressly states that the husband was not bound to support his wife ;■ but an inference may confidently be drawn from the decisions relating to the liability of the husband for the funeral expenses' of his deceased wife. If the wife had a' doWry, that' was the fund in the first instance to be charged with the funeral expenses. (C. 2,-19, 13.) If there were no dowry, the wife's father was next' liable ; or if he were dead his heirs;, and only if all these failed was the husband bound to pay for his wife's funeral. (D. 11, 7, 22 ; D. 11, 7, 28.) Again, it is clear that if a wife had a dowry, her husband would be compelled to sup- port her out of it. (D. 24, 3, 22, 8.) But in the absence of a dowry, the wife' seems to- have had uo' claim' to maintenance against hfer' husband. The absence of legal duties between husband and wife be- comes easily intelligible when the remarkable freedom of divorce among the Romans is kept in view.. It' was an ancient and deeply-rooted principle of the Roman law that marriages should be free ; that uo one should be compelled to continue in the bondage of marriage against their Avill Qibera matrimonia esse 68o STATUS. antiquitus placuit). (C. 8, 39, 2.) This was a provision against conjugal misconduct that took the place of civil actions. No one need submit to wrong from a relation that could be ter- minated at pleasure. Thus it is that our best information regarding the conduct in a husband or wife that was deemed improper, is to be gathered from the lawful grounds of divorce as enumerated in successive imperial constitutions. Investitive Facts. Marriage was completed by the consent of the husband and wife, and of the persons, if any, under whose potestas they were, together with the delivery of the wife to the husband. (D. 23, 2, 2.) I. Of the consent of the husband and wife. A father could not force his son (D. 23, 2, 21 ; C. 5, 4, 14) or daughter into marriage, nor could a patron even compel his freedwoman to marry him, unless, perhaps, he had manumitted her on purpose. (D. 23, 2, 28.) If, however, a son, yielding to his father's threats or severities, married against his will, this "undue influence" was not considered to vitiate the consent. (D. 23, 2, 22.) II. Of the consent of the paterfamilias. Lawful marriage is a mutual contract between Roman citizens who come together in accordance with the precepts of the Statutes. The males must be over puberty, and the women marriageable. The males may be either fathers or sons of a household, provided only that if they are sons they must have the consent as well of the ascendants in whose potestas they are. This is so needful, as both the principles of the law and natural reason urge, that the parents' order ought to come first. Hence the question has been raised whether a madman's daughter or son can marry. As to the son's case there was a difference of opinion. We have therefore put forth a decision allowing a madman's son, just like his daughter, power, even though the father does not come in, to unite in marriage in the manner given in our constitution. (J. I, lo, pr.) The consent of the head of the family was essential to the valiflity of the marriage of anyone under his power, irrespective of age. In the case of sons, this privilege may be explained on the principle that, without a man's consent, new persons ought not to be brought into his family, and that as the children of his son would be under his power, he ouftht to have at least a prohibitory voice. But this reasoning does not apply to a filiafamilias, because the children of a daughter fell under her husband's potestas, not her father's. The true explanation must be sought in the absolute and uncontrolled dominion originally possessed by the Roman paterfamilias ; and the right of a voice in his children's marriages, stoutly maintained even under the jurisprudence of Justinian, may he regarded as a relic of the old paternal despotism. There was no exemption. Even that favourite of legislation— the soldier — could not, while subject to the potestas, escape this peculiarly vexatious incident of it. HUSBAND AND WIFE. 68 1 Exceptions. — 1. When the father is insane. Theophilus explains why, in this instance, the rule did not apply that silence gives consent {qui scit nee contradicit, C. 5, 4, 5.) A person can give a tacit, only if he can give an express, consent ; but a madman was incapable of consenting either way. By the ancient law the daughter of a, lunatic {mente captus) or a madman (furiosus) could marry. Marcus Aurelius gave this privilege to the sons in confirmed oases (mente captl), and Justinian extended it to the sons of those suffering from acute insanity [furiosi). The marriage settlement was to be fixed by the curators or cognates of the lunatic, with the sanction of the Prefect of the city, or, in the Provinces, of the President of the Province. (C. 1, 4, 28.) 2. If the paterfamilias were taken captive, and remained with the enemy three years, those under his power were allowed to marry. (D. 23, 2, 9, 1.) 3. If he were absent from home, his children could marry after three years sin'ce he was last heard of. (D. 23, 2, 10.) Julian goes further, and says, if the marriage was with a person in such a position of life that the consent of the paterfamilias would be given as a matter of course, neither son nor daughter need wait the expiration of the three years. (D. 23, 2, 11.) Against fathers that refused their consent with the object of preventing their children marrying the lex Julia et Papia Poppaea first provided a remedy. The Proconsuls and Presidents of Provinces were empowered to compel the father to consent and make & settlement. Special laws were enacted to compel heretic, Jewish, or Samaritan fathers to endow their orthodox children, and give them in marriage to the orthodox. (C. 1, 5, 13 ; C. 1, 5, 19.) The father was treated as sinning against the lex Julia, not merely by an active ififusal of his consent, but by neglecting to provide suitable spouses for his children. (D. 23, 2, ,19.) Grandchildren under the power of their grandfather, if males, required the consent of their father also ; but girls did not. ,(D. 23, 2, 16, 1.) The reason was, that on the death of the grandfather, the father acquired the potestas over his children, and if his consent were unnecessary, he would find his children's children under his potestas, and entitled to a share in his property against his will. It was a general rule that no one could become heir to a man against his will. (J. 1, 11, 7.) As the consent flowed from the potestas, it followed that children emancipated from the potestas could marry without the consent of their parents. (D. 23, 2, 25.) The consent of the, mother wag not required. So a woman could marry without the consent of her toijj);. (D. 23, :2, 20.) But widows under twenty-five, who had been emancipated, could not mai^ry a second t^pie without their father's consent. (C. 5, 4, 18.) III. Deliv;€sry of the wife to the husband. It is an old and vexed question among civilians whether consent alone, if clearly expressed, sufficed to constitute marriage ; or whether, over and above, some rite, or merely delivery of the wife to the husbaod, was requisite 1 Generally the question could not have arisen, because when the marriage was contracted in the presence of the husband and wife, delivery was implied. In a few cases, however, the question emerged. Thus, a gift was made to a woman by her husband on the marriage-day. Was it valid 1 This depended upon the further question, whether it was made beiore she was married ; because 682 STATUS. if made afterwards, it was void in consequence of the rule for- bidding gifts between husband and wife. The question thus propounded seems to involve the point on which a decision is desiderated ; namely, at what particular moment the marriage was complete. The answer given is, that if the woman receives the gift in her own home, it is a gift before marriage, and there- fore valid ; but if she receives it after, being, led into- her hus'- band's house, it is a gift after marriage, and Could thefrefbre be withdrawn. (C. 5„ 3, 6.) This enables us to understalhd a rule stated by Pomponius. If marriage- depended on consent and nothing else, such eonsent might equally be given when' the parties were absent as when present. This is recognised in all contracts formed by consent alone. But' according tb Pom- ponius, a man could by letter or message enter into marriage, provided the woman was taken to his' house (in domum ejus deductione, hence- ducere in tndtriinonium);' while awoman could not in her absence be thus married to. a man. (D.;23, 2, 5.) Those passages, in spite of some apparfently tb the contrary (C. 5, 4, 21 ; D.. 24, 1, C6, 1), appear conclusive as to the neces- sity of delivery of tlie wife to the husband as an essential constituent of the investitive fact of marriage- Some authors endeavour to make out' an analogy witH the contracts re ; marriage^ in their view, is not a consensual, but a real, contract. But the true meaning of the rule seems difficult to miss. In the old law, marriage was made by mancipatio, or by delivering the wife into the possession of the husband. Unless the husband had possession of his wife for a year, he could not have the manus ; and if she were not delivered to him,, he could not have possession. In later times, the possession of the wife for a year did not subject her to the manvs, and there was no -reason why delivery of the wife should continue to be required in order to constitute marriage. But there is no difficulty in understanding that the custom of delivering the wife should con- tinue when there was no longer any reason for it ; for' to the latest times a woman could not be a witness to a will, simply because anciently she -was- -not a member o4 the Comitia^ in which alone wills could be made. Kestraints on the Investitive Facts.' Conuhium is defined by Ulpi&n (Ulp; Frag. 5, 3) as the capacity of marrying (conubium est uxoris juredueeiidae facultas). When, therefore, as- between two given persons there is no impediment to their marriage^- they are said to possess conuhium. The impediments, presently to bfe enumerated, are efaeh of them fatal to the legality of marriage. When the parties were related in blood, or in certain cases by adoption, they were subject also to punishment ; and in every case, however arbi- HUSBAND AND WIFE. 683 trary the prohibition, it made the marriage absolutely void. The impediments are, in judicial language, dinment, and not merely prohibitive. Therefore, if in defiance of what we have said, persons come together [in infamous and incestuous marriage], there is understood to be no Iiusband, no wife [no children], no marriage, no matrimony, no dowry. The offspring, therefore, of such a union are not in the {a.iher's poies/as, but in that respect are on the same footing as children the mother has conceived as a public woman. Now these, too, are understood to have no father, seeing it is un- certain who he is ; and hence they are usually called bastards {spurii\ either from a Greek word, as if conceived ff7rop«3?ji', or as being sine patre Jilii (sons without a father). It-follows, therefore, that even on the dissolution of such a union there is no room for exacting a dowry. Moreover, they that unite in forbidden marriage suffer other penalties as well, that are contained in the sacred constitutions.' (J. i, 10, 12 ; G. i, 64.) A. Absolute Disqualification : persons that cannot marry. I. With slaves there' cari-be no marriage. (G: I, 58, as restored.) II. Boys under fourteen years {impuberes) and girls under twelve [non vinpotentes) could not marry. If, however, a girl married under age remained with her husband until she was twelve, she became his-Iegal wife; (D. 23, 2, 4.) III. Persons already married cannot marry. A person whose husband or wife had been five years in captivity, could marry again without' dissolving the first marriage. (D. 24, 2;6;) IV. A Woman criminally accused of adattery ccruld not maa'ry unless she was acquitted, or the prosecution was abandoned. If condemned, sh*- was forbidden again to marry, p. 23, 2, 26 ; D. 23, 2, 34, L)- "V. A female slave manumitted- by her master for the purpose of marrying her, cannot marry anyone but him unless he gives her up. If she refuses him, she cannot marry another even with his consent. {D. 23, 2, 51, pr.) B. Persons' allowed to Marry, but forbidden to Intermarry. I. Cognarf^s {cognati), persons connected by blOod. Cognates are divided into three classes := — 1. Ascendants- (ascen£Z«wfe«) ; one's parents, one's grand- parents, great-grandparents, etc. 2. Descendants {descendentes)-; one's children, one's grand- children, on«'s great-grandchildren, etc. 3. Collaterals {cognati ex trtmsverso gradu or a latere) embrace any of the descendants of any ascendant. Thus, my aunt is a- collateral cognate, because she is a descendant (daughter) of my ascendant (grand- father). Her children are my cognates (cousins), being also descendants of my grandfather. So my nephews are collaterals ; they are descendants (grand- children) of my ascendant (father). 1. No ascendant, however far removed, can marry any descendant, however far removed. 684 STATUS. It is not every woman, therefore, that we may lawfully take to wife : from marriage with some we must refrain. Between persons standing to one another as ascendant and descendant marriage cannot be contracted [and between them there is no conubmni] ; as, for instance, between father and daughter, grandfather and granddaughter, mother and son, grandmother and grandson, and so on indefinitely. If such persons unite, the marriage they contract is said to be nefarious and incestuous. (J. i, 10, i ; G. i, 5^"59-) 2. Collaterals within the third degree cannot intermarry. Between persons collaterally related there is a like rule to be observed, but it is not so far reaching. A brother and sister certainly are forbidden to marry, whether they are the offspring of the «ame father and the same mother, or have only one of these two in common. Q. i, 10, 2 ; G. i, 60-61.) Exception. — A brother's daughter we may lawfully take to wife. This came into use for the first time when the late Emperor Claudius took Agrippina, his brother's daughter, to wife. But not, a sister's daughter. So the imperial constitutions point out. Again, we may not take to wife an aunt, whether a father's sister or a mother's sister. ■(G. i, 62.) This solitary exception was repealed by Gonstantine. (C. Th. 3, 12, 1.) 3. Collaterals beyond the third degree .could intermarry. Exception. — A brother or sister's daughter we may not lawfully take to wife ; nor even a granddaughter, although in the fourth degree. For where we may not lawfully take to wife the daughter, the granddaughter too is not allowed. (J. i, lo, 3.) The exception included the great-granddaughter of -a Sister, or the sister of a great- grandfather. (D. 23, 2, 17, 2; D. 23, 2, 39, pr.) Such persons, although beyond the third or even fourth decree, were withiji the meaning of the prohibition against marriage with ascendants or descendants. They were said to be in the place of parents. Ulpian tells us (Ulp. F^ag- 5, 6) that the prohibition in old times extended to the fourth degree, thus preventing the intermarriage of first cousins ; but although restraints on this marriage were ,^t various times attempted, they were finally over- ruled by Arcadius and Honorius. (0. 5, 4, 19.) Two brothers' or sisters' .children, or aibrother's and a. sister's, can inter- marry. (J. I, 10, 4.) It is certain that relationships formed in slavery are a "bar to marriage, and that even although the father and daughter or brother and sister may have been manumitted. (J. i, 10, 10.) II. Agnates {agnati). Agnation is -the fictitious tie of blood produced through the existence of the patria potestas. Two persons are agnates in respect of each other, when they are so related that if the person through whom they are connected were alive together with them, they would be under hia potestas. Agnation is the artificial tie thi'ough the potestas ; cognation the natural tie through birth. Agnates are kinsmen {cognati) related through males, kinsmen as it were on the father's side. A brother, for instance, born of the same father, is an HUSBAND AND WIFE. 685 agnate ; and so is that brother's son or his son's son, and so again are a father's brother and that uncle's son or son's son. But kinsmen related through females are not agnates, but only kinsmen {cognatt) by the Jus Naturale. [Between an uncle and his sistei-'s son, therefore, there is no agnation, but only kinship.] Your father's sister's son, therefore [or mother's sister's son], is not your agnate, but only a kinsman ; and you in turn stand to him in the same legal relation ; for the offspring follow the father's family, not the mother's. (J. i, 15, i ; G. 1, 156.) The legal relation {ju^ of an agnate is usually destroyed by capitis deminutio ; for agnation is the name of a legal relation. But the legal relation of kinship is not changed by every form of capitis deminutio; for the principles of theyw.? civile can destroy the relations due to \h&jus civile, but not natural relations. (J. i, 15,3; G. i, 158.) But though it has been said that the legal relation of kinship remains even after capitis deminutio, yet this is only so if it is the capitis deminutio minima that comes in ; for then the kinship remains. But if a man incurs capitis deminutio maxima^ the legal relation of kinship as well as of agnation is at an end. If, for instance, some kinsman is enslaved,, he ceases to be a kinsman, and not even if he is manumitted does he regain his kinship. Nay, even if a man is- transported to an island, his kinship is dissolved. (J. 1,16, 6.) Agnation imitates- cognation, and has the same difference of degrees and kinds — ascendants, descendants, collaterals, etc. 1. No ascendant, however remote, can marry any agnatic descendant, even although- the artificial tie of agnation is re- moved by emancipation. So entirely is this the case; that although it is by adoption that they have come to stand to one another as ascendant and descendant, yet they cannot intermarry. Nay, more ; even after the adoption is dissolved, the same rule of law remains. If, therefore, you once ccane to have by adoption a daughter or a granddaughter, you will not be able to take her to wife, even although you emancipate her. (J. i, 10, r ; G. i, 59.) 2. Agnatic collaterals cannot intermarry where cognatic col- laterals cannot,. unless the tie of agnation is broken, in which case the restriction is removed, (D. 23, 2, 55, 1.) If a woman comes to be your sister by adoption, as long as the adoption lasts there can undoubtedly be no marriage between you and her. But if the adoption is dissolved \s•■ woman condemned in a public trial, i.e., one that could be brought by any informer (damnata publico judicio) (D. 23, 2, 43, 10) ; a woman caught in adultery, though not condemned (D. 23, 2, 43, 12) ; or a comic actress (Ulp. Frag. 13, 2). But the restrictions of the lex Julia on the marriages of Senators were made fatal to these marriages, by a Senatus Consultum passed in the reign of Marcus and Commodus. (D. 23, 2, 16, pr.) The joint effect of the lex Julia and that Senatus Consultum was as follows : — 1. A Senator, his son, his son's son, and his son's grandson, could not marry a freedwoman. A Senator's son's daughter, or granddaughter, or great-granddaughter, could not marry a freedman. (D. 23, 2, 44, pr.) 2. The same persons could not marry a comic actress, nor one whose father or mother had acted in comedy. (D. 23, 2, 44, pr. ) Constantino extended this prohibition to the Praefecti, who were just above the Knights and below the Senators, and to the duumviri in municipalities ; and, on the other hand, to all persons of the lowest order (humiles abjectaeve personae), as the daughters of a procurer or gladiator or tavern-keeper. (C. 5, 27, 1.) Thia enactment of Constantino was repealed by Justinian, who allowe(i the highest personages to marry freedmen or others of low rank, provided a dowry was fixed 'and the marriage settlement was made in writing {instrumenta dotalia). (Nov. 117, 6.) X. Latins and foreigners (Latini, Peregrini) could not marry Roman citizens. (Ulp. Frag. 5, 4.) Hence some veterans are usually allowed by the imperial constitutions conubium with the first Latin or alien woman that they marry after their discharge. The offspring of such a marriage are Roman citizens, and co-me under the /o/^j^aj of their ascendants. (G. i, 57.) It is perfectly certain that a Roman citizen and the alien woman that he weds, if only he has comcbiiim with her, can, as we have said above, contract a lawful marriage. Their offspring then will be a Roman citizen, and in the i3.'Ca&-^i potestas. (G. I, 76.) If, again, a female Roman citizen marries an alien, and there is conu- bium between them, by the law of the alien people the offspring is an alien and his father's lawful son just as if he had begotten him by an alien wife. Now, however, by a Senatus Consultum passed at the instance of the late Emperor Hadrian, even though there is no conttbutm between the Roman citizen and her alien husband, the offspring is his father's lawful son. (G. I, 77.) XL By the XII Tables, marriages between Patricians and Plebeians were pro- hibited, but only for a short time ; for in B.C. 445 the prohibition was removed on the cogation of the tribune G. Canuleius. (Livy, 4, 6.) Divestitive Facts. A. Voluntary, by the Acts of the Parties. A Roman marriage was at no time indissoluble ; but it was HUSBAND AND WIFE. 689 permanent, and continued for life, if neither party wished sooner to dissolve it. Divorce was always a private act ; it required the sanction of no court of law ; and although the unjustifiable exercise of the right of dissolving a marriage was at different times visited with more or less punishment, yet the right was never denied, Divortium was the dissolution of a marriage at the instance of either or both parties. (D. 50, 16,191.) Sepudium was strictly the dissolution of an agreement of betrothal {sponsalia). (D. 50, 16, 101, 1.) Sometimes divortium is taken as the name for dissolution of marriage, and repu- dJMm for the written bill of divorce {repudio misso). {C. 5, 17, 8.) I. A marriage could be dissolved by the paterfamilias of the wife. When the wife passed into the manus of her husband, she - was thereby released from the potestaa of her father ; but when she married without falling under the manus, she remained in the potestas of her father. In the exercise of his potestas, the father could take his daughter from her husband against the wishes of both. This abuse was limited by a constitution of Antoninus Pius, who prohibited a father from disturbing a harmonious union. Marcus Aurelius added, " Unless for very weighty reasons " (magna et justa causa interveniente). (C. 5, 17, 5.) A paterfamilias could not, of course, take away his daughter from her husband if she were emancipated. (C. 5, 17, 5.) II. Divorce by mutual consent (divortium bona gratia). During the whole period from the foundation of Rome to Justinian, it appears that divorce might take place by mutual consent without any check from the law whatever. If husband and wife agreed to separate, the State never interfered. But Justinian prohibited this kind of divorce except in three cases ; (1) when the husband was impotent ; (2) when either husband or wife desired to enter a monastery ; and (3) when either of them was in captivity for a certain length of time. Those that dissolved a marriage by preteuding to undertake a vow of chastity, but did not do so, forfeited the property they brought to the marriage in favour of their children, (Nov. 117, 10-12.) But at a later period Justinian enacted that persons dis- solving a marriage by mutual consent should forfeit all their property and be confined for life in a monastery, which was to receive a third of the forfeited property, the remaining two- thirds going to the children of the marriage. This severity, 2 X 6gO STATUS. so much at variance with the Roman spirit, indicates the growing power of the clergy (ut non Dei judicium contemnatur). (Nov. 134, 11.) The nephew and successor of Justinian repealed his uncle's prohibitions, and restored divorces bona gratia. (Nov. 140, 1.) III. Divorce by the husband alone, or the wife alone, with- out the consent of the other. This topic roay be considered under two heads : — (a.) The Form of Divorce. (B.) Restraints on Divorce. (a.) The Form of Divorce. Before the lex Julia de adulteriis no special form was ob- served ; it was enough that the husband told the wife or the wife the husband that the marriage was at an end. (D. 38, 11, 1.) The husband generally took the keys from his wife, put her out of his house, gave her back her dowry, and so dissolved the marriage. The act migh-t be done in the wife's absence. Cicero divorced his wife Terentia by letter. But the lex Julia de adulteriis required a written bill of divorce {libellus repudii) to be given in the presence ot seven Roman citizens above the age of puberty as witnesses. (D. 24, 2, 9.) The wi'itten record of the marriage {nuptiales tabulae) was destroyed, and the divorce publicly registered. The form of words employed in the repudiation was tuas res tibi liabito, or tuas res tibi agito. (D. 24, 2, 2, 1.) The repudiation must be a deliberate intention to break up the marriage (animo perpeiuam constituendi dissensionern). (D. 24, 2, 3.) It was valid, although wholly without excuse, so that it was unuecessarj' even to acquaint the other party with the change in their condition. It was held that if a wife made a bill of divorce in the presence of the requisite witnesses, the marriage was dissolved without delivery of the bill to the husband, and even without his knowledge of it. (C. 5, 17, 6.) Still it was considered proper to deliver the bill of divorce to the other party. (D. 24, 2, 2, 3.) The effect of this rule was, that a madman (furiosus) could be divorced, his consent being unnecessary; also the paterfamilias of a lunatic wife could divorce her husband. (D. U, 2, 4 ; D. 24, 3, 22, 9.) (B.) Restraints on Divorce. Romulus is said to have forbidden the repudiation of wives unless they were guilty of adultery or drinking wine, on pain of forfeiture of all the offender's property, one-half to go to the wife, the other to Ceres. But the laws of the XII Tables seem HUSBAND AND WIFE. 69 1 to have recognised freedom of divorce, although it is said no one took advantage of the hberty for 500 years, imtil Sp. Carvilius put away his wife for barrenness, by order of the Censor. The only check on divorce, during the greater part of the Republic, was the Censors, who probably exercised their authority when the husband made an unjustifiable use of his power, as they did in the case of L. Antonius, whosfe expulsion from the Senate they procured an account of his repudiating a girl he had married. A wife in manu cquld not divorce her husband ; but if he divorced her, she could require him to release h«r from the manus. Wives not in manu had the same power of repudiating their husbands that their husbands had of repudiating therifi. 1. Restraints introduced by the^Ze^ Julia et Papia Poppaea. If the wife were guilty of adultery, her husband in divorqing her was allowed to retain a sixth part of her dowry [dos] ; if she had committed a less serious -'fault, the husband could retain one-eighth. (Ulp. Frag. 6, 12,; C. 5, 12, 24.) If the husband were guilty of adultery, the wife could demand immediate restitu- tion of her dowry ; or if it was repayable at once (as lands), then the annual proceeds of it for three years. If thefault were less serious, he, must ,i:estore the dowry in six months instead of a year. (tllp. Frag. 6, 13.) Those penalties ceased if both sides were in fault (patia enim ddictfi m'^tMa pensatwTie dissolvuntur). (D. 2i, 3, 39.) So if the husband, lafter the divorce, again betrothed himself -to -his former wife (D. 24, 3, 38), or brought a further accusation against her and abandoned -it (D. 48, 5, .11, 3), the penalties were reipitted. 2. Legislation of Constantine, A.D. 331. (C. Th. 3, 16, 1.) The lex Julia and Papia Poppaea deprived the person that made a divorce without cause of the benefits given him when the divorce was justifiable. Constantine began the legislation against .capricious repudiations, and specified the causes fpr which alone one party could divorce, the other without inonrring penalties. .1*. -Causes for which a woman could repudiate her husband without blame. ,(1) If he were guilty of murder,;, or (2) prepared poisons.;, or (3) violated tombs. If, rfor any other reason — s,B, .e.g., his being 9 (Jmnkard [ebrioms) f>T gambler {aleato7-), or given to the company of loose women {muliercularius) — a wife divprced her husband, she forfeited her dowry, and was punishable .with deportation. 2°. Causes. for which a husband could divorce his wife without blame. (1) If she were an adulteress ; or (2) preparer of poisons ; pr (3) a procuress. If, fpr any, other reason than one of the three specified, a husbanri divorced his wife, he forfeited all interest in liis wife's dowry ; and she, it he married again, could take the second wife's dowry as well. 3. .Legislation of Honorius and Theodoeius, a.d. 42-1. (C. Th. 3, 16, -2,) These emperors, ignoring apparently the cpnstitutipn pf .Constantine, impose restrictions in a somewhat different way. 1°. Divorce of a husband by a wife. (1.) If for grave reasons, or crime committed by the husband, the wife could retain 692 STATUS. her dowry and the gifts made to her by the husband on the betrothal, and conld marry again after five years. (2.) If only for breaches of morality or moderate faults, the wife forfeited her dowry and all interest in the money brought by the husband to the marriage, and was incapable of marrying again. (3.) If no grounds were proved to exist for the divorce, the wife forfeited her dowry and betrothal presents, might be deported, and was incapable of marrying again, or of receiving pardon from the Emperor. 2°. Divorce of a wife by a husband. (1. ) If for a serious crime, the husband retained the wife's dowry, and could at once marry again. (2. ) If for immorality, but not crime, the husband gained none of the property brought by his wife into the marriage, but could at once marry again. (3.) If for mere dislike, the husband forfeited the property he brought into the marriage {donatio ante nuptias), and was incapable of re-marrying. The constitutions of Constantine and Honorius and Theodosiua, although they were not retained in Justinian's code, are here inserted, to complete the history of legislative restraint on divoree. Whether owing to their stringency or severity, or to some other cause, those constitutions seem to have fallen into utter neglect, and succeeding legislation of a milder type ignores them. 4. Legislation of Theodosiu® and Valentinian, A.D. 449. (C. 5, 17, 8, 2..) 1°. A wife could divorce her husfband without blame if he were convicted of any of the following offences : — (1) Treason ; (2) Adultery;- (3) Homicide; t^) Poisoning; (S) Porgery, etc. ; (6) Violating sepulchres ; (7) Stealing from a church ; (8) Eobbery, or assisting or har- bouring robbers ; (9) Cattle-stealing ; (10) Attempting his wife's life by poison, the sword, etc. ;■ (ll).' Introducing immoral women to his house ; (12} Beating or whipping his wife. If for ally other than one of those offences a -Wiie divorced her husband, she for- feited her dowry, and could not marry again for five years. 2°. A husband could divorce his wife for any of the above-inentioned reasons for which she could divorce him, except the eleventh, and also for the following offences committed by the wife: — (1.) Going to dine with men, not her relations, without the knowledge or against the wishes of her husband.. (2.) Going from home at night against his wislies, v/ithout reasonable cause. (3.) Trequfenting the circus, theatres, or amphitheatre, after being forbidden by her husband. To these \vere added by Justinian (a.d. 528),- (4.) Procuring abortion.- (5.) Frequenting baths with men. (0. 5, 17, 11, 2,) If for any other than one of those offences- a husband divorced his wife, he for- feited all interest in his wife's dowry,- and also his own contribution' to the marriage settlement [donatio ante i 5. In Nov. 117,- Justinian repealed the formei- constitutions, and resettled tlie grounds of divorce. 1°. Divorce of a husband by a wife. Valid- grounds. (Nov. I'l7, 9.) (1.) The husband's engaging in, or beintc privy to, any plots against the Empire. (2.) Attempting his wife's life, or not disclosing tO' her any plots against it (3.) Attempting to induce his wife to commit adultery. (4,) Accusing his wife of adultery, and failing to substantiate the charge. In this case the husband was, moreover, liable to especially severe fines. (5.) Taking a woman to live in the same house with his wife, or persisting in frequenting any other house in the same HUSBAND AND WIFE. 693 town with any woman, after being warned more than once by his wife or her parents, or other persons of respectability. If for any of those reasons a wife divorced her husband, she recovered her dowry, and also the husband's portion {donatio ante nuptias) for life, with the reversion of it to her children ; if she had no children, it became her absolute property. If for any other reason a wife divorced her husband, the provisions of the consti- tution of Theodosiua and Valentinian applied. 2°. Divorce of a wife by a husband. (Nov. 117, 8.) (1.) If the wife knows of any plots against the Empire, and does not disclose them to her husband. (2.) Adultery by the wife. Severe penalties were added in this case. (3.) Attempting her husband's life, ca: concealing any plots against it. (4.) Frequenting banquets or baths with men, against the orders of her husband. (5.) Remaining from home against the wishes of her husband, unless with h«r own parents, or unless her husband drives her out. (fi.) Going to the circus, theatre, or amphitheatre, without the 'knowledge or after the express prohibition of her husband. If for any of those reasons a husband divorces his wife, he can retain her dowry altogether if there are no children ; and for his life if there are, the dowry going on his death to them. If for any other reason a husband divorces his wife, he is liable under the consti- tution of Theodosius and Valentinian. It seems strange that^ with so nnxck legislation, it should have escaped the Roman Emperors that there was a very short and easy road to tlie goal they were toiling after through such a wilderness of penalties. The simple plan would have been to make a divorce void unless it were with the consent of both parties, or for one of the reasons enumerated with so much particularity in the Code and Novels. In one case only does this plan seem to have been adopted, Justinian, following in the steps of Marcus Aurelius and Diocletian, made the consent of the husband's or wife's father or mother indispensable to the validity of the divorce, when the father or mother had advanced the dowry {dos), and it would be forfeited by an unreasonable divorce. If, however, the divorce would not injure the parents, their consent was not required. (Nov. 22, 19.) Provisions in regard to ilie Children of those Divorced. 1. The earliest legal provision for the settlement of children after the divorce of their parents seems to be a constitution of Diocletian and Maximian. (C. 5, 24, 1.) It states that there was no law compelling the judge {judex) in such a case to give the male children to the father, and the female children to the mother ; the judge could act according to his discretion. 2. Justinian enacted that the divorce of parents should in no way impair the legal rights of their children, or affect their right to inherit from their father, or to require aliment from him. If the father were guilty of an offence justifying his wife in 694 STATUS. divorcing him, and she remained unmarried, the children were to be given into her custody, and maintained at the cost of the father ; but if the mother vi^ere guilty, the father had the right of custody. If he were poor, and unable to support them, and the mothei* was rich, she was obliged to take them and maintain them. (Nov. 117, 7.) B. Involuntary Divestitive Facts^ I. Death of the husband or wife. (D. 24, 2, 1.) II. Loss of liberty by either husband or wife. (D. 49, 15, 12, 4.) But after five years since the captive was last known to be alive, his wife could marry a^ain without divorcin.g her captive husbands Mere loss of citizenship {aquae et ignis inferdictio). did not dissolve the marriage, unless the wife or husband desired to give up the murriage {si nan mulat uxoris affectionen^. (C b^ 17, 1.) CONCtJBIJstATU's: Under tlie' name of Concubinatus there' e&isted dui-ing the Empii'e an institution that bore a close resemblance to mar- riage. It Was a monogamous relation ; a man could not have two concubine®, or a wife and a concubine,- at' the same time. (Paul, Sent. 2, 10, 1 ;■ C. 5, 26, 1.) It was not kss permanent than' m-feri'iage, for mari-iage eould be dissolved by either party at pleasure: It was regarded, however, as a lower kind of union, especially on the side of the woman-. A' married woman had a highel* position {dignitas) (D. 32, 4'9, 4), implying on the- part of hef hiisband a warmer degree of affection (dihctus). (Paul, Sent. 2, 20, 1.) The offspring of such a union were not under the pote'Stas of their father, and that circutnstance eonstitutes a broad difference between concubinage and marriage. Under the Christian Emperors, the offspring could, however, be brought under the potest'as by a subsequent marriage of the parents,' {Legitimatio per subsequens matvimoniwm.) In some respects concubinage was a freer institution. Thus, although persons forbidden by the law of nature to intermarry could not live in concubinage (D. 23, 2, 56 ; D. 25, 7, 1, 3), yet those whose marriage was forbidden only by the^ws eivile could enter into concubinage. (D. 25, 7, 5.) Freeborn men could have freedwomen as concubines at a time when they were for- bidden to marry them. (D. 25, 7, 3, pr.) Again, it was con- sidered more respectable for a patronus to have his liberta as a BETROTHAL. 695 concubine than as a wife. So a president of a province could take a native of the province as a concubine, but not as a wife. In this instance, the object was to prevent rapacious presidents getting possession of women's property as dowry by marrying them. (D. 25, 7,; 5.) BETROTHAL {SPONSALIA). Servius Sulpicius Ruflas gives an account of the manner in which betrothal took place in Latium. He that intended to marry a woman, stipulated with the person that was to give her in marriage that he would do so, and on his part promised {spondebat). to marry her. The girl tlaus promised was called sponsa, the man that promised to marry her sponsus: If there was a failure on either side, an action lay {actio ex sponsit), and the judge, if there was no good reason against the mar- riage of the parties,, condemned the promise-breaker in damages according to the value of the match to the person, disappointed. This was the law in Latium until the right of citizenship was conferred on it by the tex' Julia. This sort' of betrothal appears not to have been confined' to Latium, but to have been anciently observed also in Rome. In the Digest we find nothing of the form of stipulation except the name (sponsalia, sponsus, sponsa)} To a certain extent betrothal put the betrothed iil very much the same position as if they were married; but the single duty of the sponsus and the sponsa was within a rea,sonabIe time to proceed to carry out the- marriage. The reciprocal promises of any man and woman,, and of those, if any, under whose potest'as they were, made the contract of betrothal without any further ceremony, without writing or witnesses. (D. 23, 1, 4„pr.) The consent of the betrothed persons Was necessary, but they were presumed to consent if they did not actively oppose their paterfamilias. (D. 23, 1, 13 ; D; 23„1, 12, pr.) A daughter, however, was not allowed to oppose her father, unless the person to whom he asked to betroth her was of immoral character or low position. (D. 23, 1, 12, 1.) ^ Sponsalia is the proposal and reciprocal promise of a future marriage. (Spon- salia sunt mentio et repromissio nuptiarum futurarum.) (D. 23, 1, 3.) Tlie name is derived from spondeo, because anciently betrothals were made by stipulation. (D. 23, 1, 2.) 696 STATUS. Not only the consent of the paterfamilias of each of the betrothed was necessary, but of the tutor and mother of one that was sui juris. (0. 5, 4, 1.) The contract was terminated by the death or renunciation of either sponsus or sponsa. (G. 5, 1, 1.) The form was, " I will not avail myself of your bargain " {conditione tua non utor). (D. 24, 2, 2, 2.) By the lea; Julia et Papia Poppaea, if the marriage did not take place within two years, unless for special reasons, the con- tract of betrothal was at an end. The reasons were ill-health of the sponsus or sponsa, the death of parents, or necessary and distant journeys. (D. 23, 1, 17 ; C, 5, 1, 2.) In Latium we find the actio ex sponsu giving damages in proportion to the value of the marriage to the party disap- pointed. But in Rome there seems to have been no action for the naked promise of a future marriage. The same object was, however, accomplished in another way. Earnest (arrhae) of a substantial kind was usually given at the time of making the betrothal, and was forfeited if the other side failed, without good grounds, to carry out the promise. Arrhae Sponsalitiae consisted of a present by the sponsus to his sponsa or hev father, or by the sponsa to the sponsus, made on condition that if the marriage was for a good reason broken off it should be returned; if without a good reason, forfeited to the innocent party. (C. 5, 1, 3.) If the marriage were broken off through the fault of the sponsa, she was bound to restore the betrothal gift, along with a penalty of fourfold its value. (C. Th. 3, -5, 6.) This was reduced to a penalty of the value of the gift, by Leo and Anthemius. (C. 5, 1, 5, 1 ; C. 1, 4, 16.) But if there were grounds for breaking oif the match, as impotency, diversity of religious sect, looseness of conversation, or extravagance, this penalty was not enforced. Justinian gave the same permission to persons desiring to enter on a life of religion ; each party being required to return the betrothal present. (C 1, 3, 56.) lY.—TVTELA IMPUBERUM. We learn from Gaius that there was much dispute among the Roman jurists as to the proper classification of the different species of tutelae. From this it is plain how many forms of iuteM there are. But if we are TUTELA IMPUBERUM. 697 to ask into how many kinds these forms are to be drawn out, the discussion will be a long one ; for on that point the old writers were very doubtful. The subject is one that has been fully handled by us, and with great care, both in our work on the interpretation of the Edict and in the books we made as a commentary on Quintus Mucius. It is therefore enough, meanwhile, to remark merely that some have said there are five kinds, as did Quintus Mucius ; others three, as did Servius Sulpicius ; others two, as Labeo ; while others have believed that there are as many kinds as there are forms. (G. I, 188.) The question here raised is very unimportaiifc, as it relates only to the arrangement of the investitive facts. The office of tutor was the same, in whatsoever manner he was appointed, and it is improper to speak of different species of tutelae, which are, in fact, nothing more than different ways of appointing tutores. Let as pass now to another divisiop. ' Of the persons not zn potestate \in manu or in inancipid] some are either in tulela or under a curator ; others are bound by neither of those legal ties. Let us look, therefore, to those in itttela, or under a curator ; for thus -we shall understand about the other persons that are bound by neither tie. And first let us look narrowly at those in iulela, (J. i, 13, pr. ; G. i, 142-143.) Definition. Tutela is, as Servius defined it, .a right and power over a free person (in capite libera)^ given and allowed by the jus civile in order to protect him while by reason of his age he is unable to defend himself Tutores^ again, are those that have that force and power, and take their name from the fact. They are called tutores, therefore, as being protectors {tuitores) and de- fenders, just as aeditui are so called because they protect sacred buildings {aedes). (J. i, 13, i.) Tutores, too, who are liable to the remedy for tutela, are understood to be bound not strictly ex .contractu, — for there can be no business contract between tutor ajod pupillus. Undoubtedly, too, they are not liable ex niale- Jicio. They seem, therefore, to be liable quasi ex contractu. Further, in this there are actions open to both parties. Not only has the pupillus an actio tutelae against the tutor, but the tutor also has an actio coniraria tutelae against the pupillus jf he has spent anything op his property or become bound for him, or if he has bound his .own property as security to his .creditor. (J. 3, 27, 2.) Children under puberty are in tutela by the law of every State. For it is agreeable to natural reason, that a person not of fuU age should be guided by the tutela of some one else. There is, indeed, almost no State in which parents are not allowed to give their children under puberty a tutor by will ; although, as we have said .above, Roman citizens atone have their children in tYieii poiesfas. (G. j, 189.) That children under the age of puberty should be in tutela, is fitting by the jus naturale, so that he that is not of f^jll age should be guided by another's tutela. (J. i, 20, 6.) ' Est autem tutela, ut Servins definivit, jus ae potestas in capite libera ad tuendmm eum, qui propter aetatem se defendere nequit, jwe civili data ac permissa. (J. 1, 13, 1.) 698 STATUS. There appears at 6rsfc sight a contradiction between J. 1, 13, 1, and J. 1, 20, 6 ; G. 1, 189, the first passage ascribing tutela to jus civile and the second to jus naturai.e. Tutela, as an institution of Roman law, has characteristics peculiar to Kome ; but guardianship of minors, in some form or other, is a necessary institution in every system of law. The conflict brings out the unreality and worthlessness of the much vaunted distinction between jus civile on, the one hand, and jus gentium and jus naturale on the other. The definition of Servius omits two elements that dugkt to be included. It does not mention the fact that a tutela was a public office or duty {publicum munus, jus publicum) (D. 26, 7, 5, 7), which the person duly appointed could not refuse to under- take ; nor that it was an unpaid office. Although tutores could not charge for their services (D. 26, 7, 33, 3), still they could accept a reward from the person that appointed them: When a testator's freedmah was appointed tnitor in consequence of his intimate knowledge of the property of the pupUlus, the other tutOres might give him an allowance for his support (alimenta), or salary, when, without this assistance it would be impossible for him to attend to the. business of the pupillus. (D-. 27, 3, 1, 7-) A tutela is the public and unpaid duty imposed by the civil law on one or more persons of managing the affairs and supplementing the legal deficieucies (et neg.otia gerunt et auctovi- tateni interponimt, Ulp. Frag. 12, 25) of a person sui juris, under the age of puberty. Puberty is- t-welve years for girls and fourteen for boys. It is opposed to a curatnrship (cura, curatio) in respect both> of the powers of the tutor and of the persons for whose benefit it is made. A cura is-either not for persons under the age of puberty, or if so, not generally, but only for some particular purpose or object {non persoTiae sed rei vel causae datur. ) A iu/or when appointed is believed to be appointed to- look after the entire patrimony- (J. i. 25, 17.) It is contrasted with potestas in this respect, that whereas the powers of the pater- familias are of the nature of ownership, the powers of th&'initor are given him in trust for the exclusive benefit of the pupillus, and he is not allowed to reap any personal advantage from their exercise. [Lucrum facere ex tutela non debet) . (D. 26, 7, 58, pr.) In the earliest form of tutela, that of the next agnates {agnati)^ the tutores succeeded for their own benefit. The tutela was given to them because they gpt the property oi the pupillus in ttie event of his death. (D. 26, 4, 1, pr. ) The heir was the iutor.' But there seems no trace of anything like guardianship in chivalry, where the guardian took all the profits, merely allowing his ward a maintenance. At all events, in the Digest, the rule admits no exception,, that a tutela is for the benefit of the pupillus, not of the tutor. Eights and Duties. First Case (One Tutor)- A. Duties of Tutor. I. It is the duty of the tutor to give his eonsent to all such legal acts of the pupillus as without such consent are insufficient 1 Quo tutela redit, eo hereditas pervenit, nisi cum foeminae heredes intercedunt. (D. 60, 17, 73, pr.) TUTELA IMPUBERUM, 699 to bind the pupillus {interponere aucioritatem) ; provided it is for the interest oi the pupillus so to bind himself. (U. 26, 7, 10.) Auctoritas is derived from augeo, I increase ; and it means that the tutor fills -up what is wanting in the legal capacity of his pupillus. The duty of the tutor may be considered under the following heads: — (1) the legal incapacities of the pupillus; (2) how- far the tutor could make up the defects ; (3) in what way the tutor must give his consent ; and (4) the liability of the tutor if he improperly gave or refused his consent. 1. The legal incapacities of the pupillus. The authority of the iuior is in. some cases necessary for the pupillus, in some it is- not. For it has been held that he may better his condition even without that authority ; but he cannot make it worse without the authority of his tutor. Hence in those cases that give rise to obligations on both sides — sale for instance, letting on hire, mandafe, or deposit — if the authority of the tutor does not come in, then' those that contract with the pupillus are themselves bound, but he' is not in turn bound to them. If he stipulates that anything shall be given him, the authority of the tutor is not needed; but if he promises anything to some one else, it is needed. (J. I, 21, pr.) The pupillus could not manumit a slave without the consent of his tutor, as well as the approval of tEe council required by the lex yBlia Sentia (D. 40, 2, 24), nor pay a debt thathe owed, because that was a sort of alienation of his property. (D. 26, 8, 9, 2.) If, theiefoTe^ a pupillus gives anyone money on loan without authority from his tutor, be contracts no obligation, because he does not make the money the property of the receiver. The actual coins, therefore, wherever they may be, he can reclaim by vindicatio [by stating (that is) in the intentio that they are his ex j'ure Quiritiujn]. If the coins lent have been spent by the receiver in' good faith, they can- be recovered by a condictioj if in bad faith,- by an actio ad exhibendum [just as if he still possessed them. But it is questioned whether he can demand the- coins given on loan from the receiver, if he in turn has alienated themin good faith to a third party ; since he seems by the very fact of alienation to have been enriched]. (J. 2, 8, 2 ; G. 2, 82, as restored.) But, on the contrary, anything -can be rightly given to the /;//z7/2« (male or female) without authority from the tutor. If, therefore, a debtor pays the pupillus, the authority of the tutor is needed to set him free. [For though the money is made the property of the pupillus, yet the pupillus cannot dissolve any obligation, without the authority of his tzttor; because he is allowed to alienate nothing without that a-uthority.] All this is settled on grounds of the plainest reason in a constitution addressed to the advocates of Csesarea at the suggestion of the very eminent Tribonian Quaestor of our sacred palace. The arrangements thus published are as follows : — It shall be lawful for the debtor oi ti pupillus to pay the tutor or curator, provided he is first allowed to do so by the opinion of a judge, publicly given free of all /OO STATUS. cost. If this course is followed, and if both the judge declares his assent and the debtor pays, the very fullest security attends such a payment. If, however, the payment is made in some other fashion than the one arranged by us, the pupillus may still be repelled by the exceptio dolt malt if he demands the same sum of money while he either has the money safe or has been enriched thereby. But if he has either spent it wrongly or lost it by theft, the excepiio doH mali will do the debtor no good ; for he will none the less be condemned because he paid the money recklessly, and not in accord- ance with our arrangements. (J. 2, 8, 2 ; G. 2, 84.) On the contrary, again, z. pupillus (male or female) cannot make a pay- ment without authority from the tutor. For what he pays does not become the receiver's property, because he is allowed to alie,nat;e nothing without the authority of the tutor. (J. 2, 8, 2 ; G. 2, 84.) Exceptions. — (1.) Although a. pupillus could neither buy nor sell without the consent of his tutor so as to giv« a good title to the purchaser, yet he was responsible to the extent to which he had gained by the transaction {in quantum lacupletior factus est). (D. 26, 8, 5, 1 ; D. 44, 4, 4, 4.) He could not keep what he had bought and refuse payment, or demand back what he had sold without giving up the money paid for it. (D. 44, 1, 4.) In like manner, although a pupillus could not make a valid discharge to his creditor, yet if the latter had, in ignorance of the incapacity of the pupillus, accepted payment and used the money, the debt was fully extinguished. (D. 26, 8, 9, 2.) Persons under puberty are not liable to an actiQ commodati, because no pupillus can enter into this contract without the autloority of his tittor. So entirely is this the case, that even if, after reaching the age of puberty, he admits fraud or negligence, he is not liable to this action ; because it could not stand at the first. (D. 13, 6, 1,2.) But if the pupillus has made profits, an actio commodati utUis ought to be given, according to the rescript of Antoninus Pius. (D. 13, 6, 3, pr.,) It was questioned whether an actio dcpositi could be given against -a pwpiUus with whom something had been deposited without authority from the tutor. The correct opinion was, that if the deposit was made with a person old enough to be capable of fraud, or if he were guilty of fraud, then an action eould be brought ; for, of course, so far as he has made profits {quantum locuplctior factus est)t sjo. action is given against him, even though no fraud has come in. (D. 16, $, 1, 15.) (2.) In certain cases, even for his own benefit, a pupillus could not act without the .consent of his tutor. (D. 26, 8, 9, 3 ; D, 26, 8, 11.) He cannot enter on an inheritance, nor ask bonorum possessio, nor take an inheritance under a trust {ex fideicommisso), except by authority from the tutor J and this though he might gain by so doing, and could in no case lose. (J. 1,21, I.) If the child was over seven years of age, he himself, with the sanction of the tator entered on the inheritance, or sought the bonorum possessio ; if he was under that age, TUTELA IMPUBERUM. 7OI the tutor was authorised, by a constitution of Thedosius and Valentinian, (a.d, 426), to enter on a hereditas or petition for a possessio bonorum ia the name of the pupil as his agent. (C. 6, 18, 3 ; C. 6, 18, i.) 2. "To what extent did the authority of the tutor remove the incapacity of the pupillus to bind himself? The turning point was when children had completed their seventh year. After that age they had intellectus, and were cap- able of taking an intelligent part in the formalities of the law ; but they did not possess judicium; they were not able to judge whether it was for their interest to undertake any obligation. Generally speaking, aa in the case of inheritance above cited, a child after seven years of age made the stipulation or acted in any other legal transaction, the tutor supplying the element of judicium in which he was wanting. But under that age he could not act, and whatever could be done for him must be done by the tutor alone. (But see D. 27, 8, 1, 15.) The tutor, in such eases, was an agent, and,, as we have seen, the civil law with great rekictance admitted the representation of one free person by another.- Ulpian .tells us that in his day the repre- sentation was allowed in actions or suits (D. 26, 7, 1, 2) ; but the final step to enforce judgment {actio judicati) was taken directly for or against the piipilhis. (D. 26, 7, 2, pr.) There ia some diffi. 26, 7, 1, 2 ; C. 6, 30, IS, pr.) In this case, what is meant by infantiae proximiis and puhertati proxlmun 1 One view is that a male child iff infantiae proximus up to ten and a-half years, and a female child up to nine and a-half years. This result is attained by dividing the time equally between seven and the age of puberty. Another view is that a child was infantiae proximus for one year after infantia, and puhertati proximus for one year before puberty ; the intervening space having no distinctive name. Between these views our information does not warrant uff in arriving at any decision. Exception. — The consent of the tutor does not give validity to the act of the pupillus, if the effect is to benefit the tutor} Formerly, when the legis actimes were in use, there was another case in which a tutor was appointed — when, namely, such a proceediny^ was to be ^ Regula est juris cirilis ; in rem suam auctorem tutorcm fitrl non posse. (D. 26, 8, 1, pr.) 702 STATUS. taken between a tutor and the woman ax pupillus under him. For no tutor could give an authority in what affected himself ; another, therefore, was appointed to authorise the action to be carried through. This latter was called a praetorian tutor, because the urban Prsetor appointed him. • Now since the legis actiones have been taken away, some think this kind of tutor is needless ; but one is still usually given in any statutory proceedings {hgtiimo judicio). (G. i, 184.) If judicial proceedings are to be taken between a tutor 3.nd pupillus, since a tutor cannot give his authority in what affects himself, there is appointed in his room, not a praetorian tutor as formerly, but a curator. He comes in to carry through the proceedings, and when they have been carried through he ceases to be curator. (J. 1,21,3.) The rule is equally strict when the benefit does not accrue to the tutor himself, but to his paterfamilias or filiusfamilias. (D. 26, 8, 7, 2.) But a tutm- may buy from his pupillug : (l) when the property is sold by a creditor (D. 26, 8, 5, 5.) : and (2) when the sale is of a portion of the property .that the tutor does not manage, with the. consent of the managing tutor. (D. 26, 8, 6.) 3. How the authority (auctoritas) of the tutor must be given. A tutor ought to givehis authority at once while the business is going on, and in person, if he thinks it for the good of \S\e. pupil lus. An authority put in afterwards or by letter, is void. (J. I, 21, 2.) It must also be unconditional (D^ 26, 8, 8) and free. If the •tutor refused his assent, he could not be compelled to give way, but was of course liable in damages if his refusal was unreasonable and prejudicial to the ytijjffliis. (D. 26,'8, 17.) His signature to a written instrument was not necessary, although a tutor should sign all writings to remove doilbt. (D. 26, 8, 20.) The consent was given orally, in most cases, by interrogation. The tutor was asked whether he consented (an auctor huic rei esset) ; but although no formal question was put, if -he in fact con- sented, the transaction was valid. (D. 26, 8, 3;-) 4. Consequences 'to the. tutor of improperly ..giving or with- holding his authority. The tutor, in giving or withholding his authority to the acts of his pupillus, was bound .to keep in view solely the advantage oi the pupillm, and -to study his interests with all the care of a prudent man. ,(D. 26, 7, 33, pr.) A. (a pupJUus), with the consent of B. (his tutor), .bought land of C, whose property was then forfeited by a judicial sentence. A. was evicted. If B. knew that C.'s property was forfeited, he must make good the loss tp A.-; but if he did not know, then he was not responsible. (D. 26, 7, 57, J,) So if the pupillus, with the consent of his tutor, njakes a free gift of any of his property to persons to whom he is under no customary obligation to make such gifts, the tutor must pay back the value of the gifts. (D. 27, 3, 1, 2.) II. It is the duty of the ttitor to manage .the property of his pupillus. (D. 26, 7, 1, pr.) The management of the property TUTELA IMPUBERUM. 703 included numerous duties, the principal of which are here enumerated. 1. Before meddling in any way with the property, the tutor was bound to make a complete inventory. (C. 5, 51, 13.) If he entered on the management of the estate without first making an inventory, his conduct was held to be fraudulent, unless he had a very strong excuse. (D. 26, 7, 7, pr.) 2. To sell perishable things. -(D. 26, 7, 7, 1.) A Senatus Consulturn, of the .time of Severus, .prohibited the alienation of lands by tutores unless an express power was given by the will of the father of the pupillus, or tbey first obtained a decree of sale from the Praetor, which was not granted except to dis- charge debts that could not otherwise be paid. (D. 27, 9, 1, 2.) Constantino extended the prohibition to all property except old clothes and superfluous articles. (C 5, 72, 4.) 3. To deposit all moneys of the pupillus in safety. Dp to the time of Justinian it was the duty of the tutor either to put out the money at interest, or to buy lands with it (C. 5, 37, 24) ; but Justinian permitted tutores to hoard the money, unless it was required for the maintenance of the pupillus. 4. Within six months after his appointment the tutor ought to have collected all the debts due to the pupillus, or at least to have sued the debtors. The tutor was allowed two months after any subsequent d-ebt accrued to recover it. (D. 26, 7, 7, 11.) If the tutor neglected >to gather in the debts within the time allowed him, he was liable for all loss sustained in con- sequence of his remissness. (D. 26,'7, 15.) If the tutor accepted from a solvent debtor less than was due, he was himself bound to pay the difference to the pupillus, the debtor also remaining liable for the balance. (D. 26, 7, 46, 7.) 5. To pay the debts of the pupillus, including those due to himself. (D. 26, 7, 9, 5.) He could not make presents of the wealth of his pupillus (D. 26, 7, 22); but he could make such gifts as were considered to be due from the rank of his pupillus. Such were the customary presents to pa,rents and relatives; maintenance to slaves and freedmen of the pupillus (D. 26, 7, 12, 3) ; maintenance and education to a poor sister of the pupillus (D. 27, 2, 4) ; or support to. a needy mother (D. 27, 3, 1, 4) ; but not a bridal present to her on her second marriage (D. 27, 3, 1, 5), nor a dowry to a half sister. (D. 26, 7, 12, 3.) 6. It was the duty of the tutor to bring in his own name, if ^Q pupillus were not above seven years of age, all, such actions 704 STATUS. as the interest of the pupillus required ; and in the name of his pupillus after that age. (D. 26, 7, 1,2.) It was also his duty to defend all actions that ought to be defended. (D. 26, 7, 30 ; C. 5, 37, 6.) 7. Generally, in administering the property of his pupillus, a tutor must do everything that a prudent man would do, and do nothing that such a one would not do. (D. 26, 7, 33.) If, in consequence of the deliberate disregard of his duty by the tutor (dolus), or by a want of due diligence (culpa lata aut levis), the pupillus suffered any loss, or failed to gain any advantage that could, with diligence, have been obtained for him, the tutor must make good the loss. (Q- 5, 51, 7.) By the neglect of a tutor the rent of an emphyteusis is not paid, and the pupillus in consequence forfeits his interest ; the tutor must make good th-e loss. {C. 5, 37, 23.) A tutor, to oblige a friend, sells too cheap or buys too' dear ; he must make up the difference between the price paid and the true value. (D. 26, 7, 7, 2.) A tutor employs the money of his pupillus in trade in his own name ; he is guilty of a breach of trust, and must pay back what he took with interest, bub he was not bound to give up the profits he made [pupiUo usuram, non compendium, praestandam). (D. 26, 7, 47, 6.) But if he traded in the name of the prupUlus, he must account for the profits. (D. 26, 7, 58,' pr.) Property belonging to a pupiUus is stolen by robbers, or lost (partially or wholly) through the failure of the banker to whom it was entrusted, when bis credit was good, by the tutor ; the loss, not being occasioned by any fault of the tutm; falls on the pupiUus entirely. {D. 26, 7, 50 ; C. 5, 38, 4 ; D. 27, 4, 3, 7.) Grain that ought to be placed in' barns or sold is left to rot. The tutor must make good the loss on account of his neglect.- (C. 5, 38,- 3.) The responsibility of the tutor could not be taken away by an express clause in the will nominating him' (eosque aneclogistos esse volo) ; for the tutela was a public ofiS.ce, the duties of which could not be modified by private arrangements/ (D. 26, 7, 5,7.) 8. When his pupillus arrived at the age of puberty, the tutor ought to inform him, and urge him to seek a curator to manage his property during his minority (i.e. until twenty-five). If the tutor did not inform his pupil, but continued himself to manage his affairs after the tutela had properly come to an end, he re- mained liable for his acts and negligence as tutor. (D. 26, 7, 5, 5.) 9. When the pupiUus arrived at the age of puberty, the tutor was bound to complete and present his accounts, and if he ^ (Nemo enim jus publicum remittere potest hujusmodi cautionihus nee mutare for- mam antiquitus constitutam.) TUTELA IMPUBERUM. 705 failed, the slaves who managed the business must rendev accounts, and, if these were not satisfactory, they might be put to the torture for the discovery of the truth. (D. 27, 3, 1, 3.) When a tutor n\anages the business of a pupillus (male or female), he has, after the pupillus comes to the age of puberty, to give an account of his management. Tlie proceeding is called actio ttitelae. (J. i, 20, 7 ; G. I, 191.) 10. If the accounts show a balance against the tutor, he ought at once to pay it over to the pupillus ; if he delaj^s, he must pay interest. Time was, however, allowed to call in money that the tutor, in the course of his duty, had put out at interest. (D. 26, 7, 8.) III. The tutor was bound to make his pupillus a proper allow- ance for his support (D. 26, 7, 12, 3) ; but not out of his own property if his pupillus had none. (D. 27, 2, 3, 6.) If the amount of the allowance were not fixed by the instrument appointing the tutor, it was- settled by the Praetor on the application of the tutor, or, if he neglected to apply, of the pupillus. (C. 5, 50, 1.) It was not imperative on the tutor to apply to the Pr^tor, for if he acted bona fide in order to prevent the affairs of the pupillus becoming known, and fixed an allow- ance on his own responsibility, he was not considered to fail in his duty. (C. 5, 50, 2.) IV. It was the duty of the tutor to see that provision was made for the custody and education of his pupillus, but not himself to undertake the task. Usually, when a tutor was appointed by the father of his p^ipnllus, provision was at the same time made in the will for the custody and education of the son. The person named in the will obtained the custody of the child unless the relatives made objections. (D. 27, 2, 1, 1.) If objections were offered, the Pr^tor examined them, and made a decree. (D. 27, 2, 5.) If no one were named by will, the proper person to have the custody of the child was its mother, if she remained a widow. If the tutor or the relatives of the child objected to the mother having the custody, the dispute was settled by the Pr^tor, who had regard to the position and character of the mother. (C. 5, 49, 1.) Occasionally he found it necessary to compel a freedman to undertake the charge of ■A pupillus. (D. 27, 2, 1, 2.) B. Duties of Pupillus. 1. To repay the tutor all that the latter properly expended 2 Y 7o6 STATUS. on his behalf (D. 27, 2, 2, pr.), as the expense of travelling on necessary business of the tutela. (D. 27, 3, 1, 9.) The pupillus was not released from this obligation although all his property was exhausted, if the expenditure ought to have been incurred. (D. 27, 4, 3, pr.) 2. To release ihe tutor, and indemnify him for all the obliga- tions undertaken by him on his behalf It was not necessary for the tutor to wait until he had actually performed the obhga- tiou. (D. 27, 4, 6.) Second Case (when more than one Tutor) (Contutoebs). I. The authority of the tutor. 1. When there were several tutores, was the cobsent of all necessary to create an obligation for the pupillus? Origin- ally, the consent of every tutor was necessary, except in the case of tutores appointed by testament, or after inquisitio, any one of whom could authoris-e the pupillus to bind himself. Jus- tiuian made the consent of any tutor (whatever the mode of his appointment) sufficient, except for the purpose of putting an end to the tutela ; as by the arrogation of the pupillus. (C. 5, 5P,5.) AVhere the administration of the property was divided among the tutores, each could give his consent to acts of the pupillus re- lating to the portion of the estate under his special care, but could give no validity to the acts of his pupillus in respect of the pro- perty administered by other , 3, 13)7 A tuUyi' foolishly or with- evil intention makes his pupillus abstam fr-om- a solvent inheritance. He is removable. (D. 26, 10, 3, 17). Lastly, we must know that fraudulent administrators of a tictela or ctnrator- ship must be removed from office, even although they offer security. For to give security does not (fliange the iliafevolent design of a tutor j it only gives liim all the longer facilities for attacking the property. (J. i, 26, 12.) 5°. Foi' general incompfetellce (I>. 26, 10, 4, 4)' or carelessness a tuloT could be removed. {Segnifies, ignavia, rustlcitas, inertia, simplicitas, ineptia?) (T). 26,, 10,. 3, 18.) We- regard a man. as suspected whose char&cter is such as to ijring sus- picion upon him. But a tutor or curator that, although poor, is faithful and diligent, is net to be removed as if suspdctecU (J. i, 26, 13.) 6?. If the tutor hduS become' hostile to- ■\ib.e piepillus,'he may be removed, or generally for any other reason- deemed by the magistrate sufficient.. (D. 26, K), &, 12.)' A tutor has been appointed by a magistrate in ignorSnc'e that he had beeii forbidden to act as tutor by the mother of the pupillus in her testamentt Heis to be removed without discredit {sine damno existimationis).- (C 5, 47, 1.) B. TeiWnation' of the Tute.lahj Events. I. Males, as soon as- they come to the age of pu-berty, are freed fr-om tuteta. Puberty, Sabinus and Cassius and the other teachers of our school think, is reached when a man shows- it by the state of his body ;.- when (that is) he san beget a child. In the case of those that cannot come to- maturity — the impotemt, for example — that age,- they say,: is to be looked t-o at which men reach puberty (if they ever reach it at all). But th« authorities of the opposing school think puberty is to be estimated by years ; that is, he is cf the age of puberty that has completed his fourteenth year. (G. i, 196.) TUTELA IMPUBERUM. 723 Pupilli (male or female) as soon as they reach the age of puberty are freed from the tutela. But puberty the ancients wished to be reckoned in the case of males not only by years but by the state of the body. Our majesty, however, wisely thought it worthy of the chastity of our times, that since it seemed immodest even to the ancients in the case of females to inspect the state of the body, this protection should now be extended to the case of males also. We have, therefore, by the hallowed constitution pub- lished by us, ordained that puberty in males is to. begin at once on the completion of the fourteenth year. The rule the ancients wisely laid down with regard to- females, that after the completion of their twelfth year they should be believed capable of marriage, we have left as they ordained. (J. I, 22, pr.) 2. In like manner the- tutela is ended by the death of either tutar or pupilltts. (J. I, 22, 3.) 3. By change of stoit«s (capitis deminutio). z°. By the capitis demimttio of the tutor too, since by it his freedom or citizenship is lost, the tutela comes entirely to an end. (J. i, 22, 4.) 2°. But by his minima capitis demimttio, as when he gives himself to be adopted, statutory tutela: alone is at an end, but no other form. (J. 1, 22, 4-) And not only the two greater forms of capitis deminutio destroy the right of agnates to act as tutores, but even the lowest {minima). If, therefore, a father emancipates one of his two children, after his death neither can be tutor to the other by right-as an agnate. (G. 1 , 1 63.) 3°. The capitis deminutio of the pupillus (male or female),, however, even although minima, takes away tutela in every form.. (J., i, 22, 4.) Agaia, the tutela is put an end to if the. pupillus, while still under puberty, is adopted by arrogaiio, or transported 1 or again, if he is reduced into slavery for ingratitude by his patron, or is. taken by the enemy.. (J> i, 22, i.) 4°. If the tutor is appointed by will till the fulfilment of a fixed condition, then equally it happens that be will cease to' be tutor when the condition is fulfilled. (J. I, 22, 2.) Further, tutores appointed by will for a fixed time, at the end of that time lay down, their office. (J. i, 22, 5.) • REMEDIES.- A. — In kespect op EighI's aud/ Duties. I. Duties of Tutor to PupiUua. 1. Actio tutelae direcfa. — This i» the actioa by Which, after the Swicw* has ceased to hold office, he or his heirs can be made to pa-y damages to the pupiUus or his heirs, for loss sustained in consequence of any unlawful act or omission in the performance of his duty. (D. 27. 3, 4, pr. > D. 27, 3, 1,. 16.> When the tutor Is under the potestas, the action may be brought by the pupillus againstiiis paterfamilias, if he has consented to his, sou's acting, or himself interfered in the administration. (D. 26, 1, 7 ; D. 27, 3, 6 ; D. 27, 3, i, 1.) Except in five cases, a tutor was not compelled to pay interest beyond the ordinary rate prevailing in the place where the tutela wa,9 performed [pupillares usurae). Such interest was payable if the iutor neglected to get in a debt or sue a debtor within the 724 STATUS. time allowed him, and generally for all moneys that he owed the pupil. (D. 2fi, 7, 7, 10.) But in five cases interest was allowed at 12 per cent, per annum [legitimae usurae) : when the tMor takes the money of his pupiUus for his own use (0. 6, 66, 1 ; D. 26, 7, 7, i) : when he has been required by the testator or by the Prffitor to invest the money of the pupiUus in the purchase of land, and has not done so ; when the tutor falsely denies that the property of the pupiUus can afford him a maintenance ; when he falsely denies that he has any property belonging to the pupUlus, and thereby the pupiUus is compelled to borrow at 12 per cent. ; and when he has received 12 per cent, from the debtors of the pupiUus. (J). 26, 7, 7, 7-10.) 2. Actio utilis tutelae directa. A tutor that abstained from the administration altogether seems at first to have avoided all risk of paying damages. The actio tutelae could be invoked only when the 'lUtor had actually interfered. If he was once amenable to the actio tutelae, his omis- sions were estimated equally with his acts ; but if he took the precaution not to act at all, he could not be called to account for mere omission to perform his duty. This defect was remedied by the above-mentioned utilis actio. (D. 46, 6, 4, 3.) 3. Actio de rationibus distrahendis. This action could be brought by the pupiUus or his heirs against a tutor after the tutela was at an end, to recover a penalty of twice the value of any property that the tutor had taken from the pvpiUus and converted to his own use. (D. 27, 3, 2, pr. ; D. 27, 3, 1, 24.) It was an action given by the XII Tables.^ Either the actio tutelae or the actio de rationihus distrahendis may be brought for a criminal appropriation of the property of the pupillus, but not both. (D. 27, 3, 1, 21.) 4. Those special actions did not prevent the pupillus bringing against his tutor the ordinary actions for damages, even during his continuance in office. Such were the actio furti, actio davini injuriae, condictia furtiva, etc. (D. 27, 3, 9, 7.) II. Responsibility of the heirs of a tutor. When an action has been brought against a tutor, and before the proceedings are concluded the tutor dies, the action may be carried on against his heirs, and the fuU amount recovered that could have been obtained from the tutor himself. If the tutor died before an action was begun against him, his heirs could be sued in his stead. In this case, however, their responsibility was not quite so great. 1. While the heir was bound to pay all the debts due by the tutor to his pupiUus, he could never be compelled to pay more than the ordinary interest [pvpiUares usurae), and even that only in the discretion of the judge. (D. 27, 7, 4, 2.) 2. The tutor was compelled to produce the inventories and all writings relating to the property, and if he did not, must pay damages according to the amount stated by the pupillus on oath. (D. 27, 7, 8, 1.) But his heir was not subjected to this rigorous treatment unless he had the papers in his possession, and refused to produce them. (C. 5, 53, 4.) 3. The tutor was bound to show ordinary diligence and care, but his heir was responsible only for such acts or omissions as amounted to fraud (dolus), or gross negligence undistinguishable from it (culpa lata). Entire abstinence from the administration was regarded as culp>a lata. (D. 26, 7, 39, 6 ; C. 5, 54, 2 ; C. 5, 54, 1.) The actio de rationibus distrahendis did not lie against the heirs, because it was a penal action, and no action for penalties, could be brought against the heir. (D. 27, 3, 1, 23.) III. The sureties of Tutores. Fidejwssores, Noniinatores, Affirmatores. 1. Actio ex Stipulatu or C^ndictio incerti. As the security given by the sureties of tutores was the stipulation, the remedy 1 Si tutor dolo maZo gevat, vituperato ; quandoquc finita tutela escit furtum duplione luito. TUTELA IMPUBERUM. 725 was by the Tisual action for breach of a stipulation. This action could be brought where the actio tutelae directa could (D. 46, 6, 1) and did not lie, where there was no ground for the actio tutelae. (D. 46, 6, 4, 6.) The surety could also urge every defence that was competent to the tutor. (D. 27, 7, 5.) The pupiUus was not bound to sue the tutor or his heirs before proceeding against the surety ; the surety was treated not as an accessory but as a co-principal, bound jointly (in solidum) with the tutor. (0. 5, 57, 1.) If there was more than one surety, the fupillas was not com- pelled to divide his action amongst them, but could sue whichever he pleased on making over his rights of action against the co-sureties. (D. 46, 6, 12.) IV. The municipal magistrates that appointed the tutor and their heirs. 1. Utilis actio tutelae directa. This action was given by a Senatus Consultum of the time of Trajan. (C. 5, 75, 5.) It was subsidiary, i.e., could be brought only after the actions agamst the tutor, his heirs and sureties, had failed to satisfy the claims of the pupillus. (D. 27, 8, 1, 1.) It lay, if the magistrate had, after being asked, neglected to appoint a tutor (D. 27, 8, 1, 6), or had appointed an improper person, or had been satisfied with insufficient security. The heirs of the magistrate were bound only if his negligence amounted to culpa lata. (D. 27, 8, 6 ; C. 5, 75, 2..) It is to be observed that not only are tutores or curators liable for their management to the pupilli, and the young men and the other persons ; but also against those that receive the security a subsidiary action lies, which brings them their last safeguard. This action is given against those that have neglected to take security at all from tutores or curators, or have suffered improper security to be taken. In accordance with the opinions of the jurispriidentes, as well as under the imperial constitutions, it may be brought further against their heirs also. (J. i, 24, 2.) In those constitutions, too, it is set forth that if tutores or curators do not give security, they may be compelled to by taking pledges from them. (J- I, 24, 3-) But neither the prefect of the city nor the Prastor, nor the president of a province, nor anyone else that has a right to appoint tutores, shall be liable to this action ; but those only that usually exact the giving of security. (J- I, 24, 4-) The pupillus had no preferential claim on the property of the magistrate, but ranked along with the other creditors. (D. 27, 8, 1, 14.) Burden of Proof. — There was a curious anomaly in this action, adopted as an additional safeguard to the pupillus. Ths pupillus was not bound to prove that the sureties were insolvent when they were accepted ; but the magistrate, to exculpate himself, must prove that they were solvent. (D. 27, 8, 1, 13.) v. Duties of Pupillus to Tutor. (1.) Actio tutelae contraria. Like the actio tutelae directa, this action could be brought only when the tutor had ceased to hold his office. (D. 27, 4, 4.) It was given to the tutor and his heirs against the pupillus and his heirs, to recover the expenses he had incurred on behalf of the pupillus, and to be indemnified against any outstanding obligations. (D. 27, 4, 3, 9; D. 27, 4, 5.) B. In Respect of Investitive Pacts. I. Specific performance. of the tutela. The Prtetor, in the exercise of his extra- ordinary jurisdiction, could compel the tutor to act. (D. 26, 7, 1, pr.) II. When a man wishes to excuse himself, and has more excuses than one, but has failed to establish some of them, he is not forbidden to use others, 726 STATUS. if he does so within the times appointed. Those that wish to excuse them- selves do not appeal ; but within the fifty days next after they know of their appointment, they ought to excuse themselves, no matter of what kind they are — no matter, that is, in what fashion however they have been appointed. This is the time allowed if they live within one hundred miles of the place where they were appointed tulores. But if they live more than one hundred miles away, they must reckon exactly a day for every twenty miles, and thirty days besides. And yet, as Scaevola said, the time should be counted so as never to give less than fifty days. (J. i, 25, 16.) The proper judge to apply to was lie that appointed or -confirmed the fjffor. Tes- tamentary or legitimi tntores applied to the president-of the province. (C. 5, 62, 18.) The tutor must apply in person, but may deliver a written statement -of the -grounds on which he claims exemption. (D. 27, 1, 13, 10 ; D. 27, 1, 25.) If the friends of the pupiUus did not contest the claim within fifty days (D. 27, 1, 38,), the judge gave a decree granting the exemption. (C. 6, ^2, 3.) c. In Respect of Divestitive Facts. I. Those released for proper grounds of exemption followed the procedure just explained. II. Kemoval of liCtor, Crimen suspeeti ivXorw. It is to be observed that the charge against a tutor on s-uspicion comes down from the statute -of the XII Tables. (J. i, 26, ,pr.) 1°. The -object of this accusation was simply to remove the tutor from office, and, tlierefore, If a tutor or curator is brought to trial on suspicion, and afterwards dies, the trial on suspicion is at an end. (J. i, 26, 8.) The right of removing tutores tried on suspicion has been given in Rome to the Prjetor, and in the provinces to their presidents, and to th* procon- sul's ./«^<3:/z^J. (J. I, 26, I.) 2°. Next we mustsee who can accuse ^2/A7^^j on suspicion. Now it is to be observed that this action is quasi-public ; that is, it is open to all. Nay, even women too are admitted, under a rescript of the late Emperors Severus and Antoninus ; bat those only that are led to come forward for this duty by the strong ties of natural affection {pielatis 7iecessitndme) —a mother, for instance. But a nurse too, and a. grandmother, and even agister may. And even some other woman the Praftor admits as an accuser, if he sees that her disposition is warmly affectionate, and that without overstepping the modesty of her sex, but led on by her affection, she cannot endure the wrong done to the pupillus. (J. I, 26, 3.) Persons under puberty cannot accuse their tutores on suspicion. (J. i, 26, 4-) A contutor was bound to bring tie action against a tutor guilty of mismanage- ment in the property assigned to him on division. (D. 26, 10, 3, pr.) Freedmen of pupUli were considered to do a grateful act in asking the removal of the tutores tha were wasting the property of their pupil-patrons. (D. 26, 10, 3, 1.) But the magistrate had the power of removing a tutor, although no accusations were brought against him ; as, for example, if in the course of other proceedings it appeared that the tutor was guilty of malversation, or was incompetent. (D. 26, 10, 3, 4.) TUTELA MULIERUM. 727 3°. If anyone is accused on suspicion, until the trial is ended he is for- bidden to act as manager, as Papinianus held. (J. i, 26, 7.) 4°. A tutor removed after trial on suspicion is rendered infamous if removed for fraud, but not equally so if removed for neglect. (J. 1, 26, 6.) A tutor was not infamous if removed for incompetence .; or if not removed, bnt saddled -arith a curator. ,(D. 28, 10, Z, 18.) Criminai Proceedings. A freedman, too, that is proved to have acted fraudulently while tutor to his patron's sons or grandsons, is ^epiitted to the prefect of the city to be punished. {J. i, 26, 11.) Those that had neglected .to mate an inventory, or to buy lands, when they had money, as occasion offered, and were unable to make good the loss, were subject to imprisonment. (D. 26, 7, 49 ; p. 26, 10, 3, 16.) It was a criminal offence to pay money to procure an appointment. as tiutor, or tp ■take money to procure the appoint- ment of another, or fraudulently to understate the property of the pupUlus, or fraudu- lently to alienate any portion of it. .(D. 26, ,l,-9.-) Y.— TUTELA MULIERUM. Definition. But for keeping women of full age under a tutor, .ateost no reason of any worth can be urged. For the common belief that from the levity of their disposition they are often deceived, and may, therefore, in fairness, be guided by the authority of tutor.es, seerns plausible rather than true. (G. I, 190.) Among aliens, .women are not in iutela as they are among us. They are, however, often after a fashion ; ,a^, for instance, in Bithynia, where a statute ordains that a woman's .contracts .must be authpirised .by her husband, or by a son over the age .of puberty. (G. i, 193.) According io the old law, a womap never had legal indepen- dence. If sh« was not .under the potestas, she was under manus or tutela. Between the potestas, tutela, and manus., women were never legally their own masters. We learn from Cicero that the ingenuity of the jurisconsults had been -successful in devis- ing means of escape from the tutela, although their conduct in evading ox fluttering away ihe old institution that symbolised the supremacy of the male sex, did not meet his approval. In the reign of £!laudius, the tutela of a woman's agnates was taken away, hut it seems from L-eo (C. 5, 30, 3) that Constan- tine revived the agnate's tutela along with that of a cognate brother of the fcll blood. In the time of Justinian, the tutela of women was on the same basis as that of menj it was con- fined to those under the age of puberty. 728 STATUS. Rights and Duties. A. Duties of Tutor. I. Auctoritas.—A. woman, like a child, was incapable of enter- ing into certain legal transactions without the authority of her tutor. A woman, after the age of puberty, was relieved from some of the incapacities that attached to her as a pupilla. She could alienate r^.s nee mancipi (but not res mancipi), without the authority of her tutor. But, on the other hand, res mancipi as well as ncc mancipi can be trans- ferred to women and pupilli without the authority of their tutor. For they are allowed to better their condition even without the authority of their tutor. (G. 2, 83.) To a woman, even without the authority of her tutor, a payment may rightly be made, for he that pays is freed from his obligation. The reason is that a res nee inajieipi a woman can part with, as we lately said, even without the authority of her tutor. But the condition of this is actual receipt of the money. For if she does not receive it, but says she has, and wishes to free the debtor by crediting him with payment without the authority of her tutor, she cannot. (G. 2, 85.) If, therefore, a woman ever gives anyone money in loan without the authority of her tutor, as she makes it belong to the receiver — for money is a res nee ntixncipi — she contracts an obligation. (G. 2, 81.) A woman must have a tutor In settling- tlie dowry {dos) on her marriage, or even after her marriage, if she wished to increase or vary the settlement. When, in Jus- tinian's time, the perpetual twtda was obsolete, a curator was named for the purpose. {D. 26, 5, 7.) Ulpian adds, that the authority of a tvior was necessary to enable a woman to bind herself by contract, to take part in the old civil procedure {leyis actio, legitimiim judicium) — (for the meaning of these terms see Book IV.), or in stay legal transaction belonging to the jus civile ; or to permit her freedwomen to live in con- tubernio with a slave. (Ulp, Frag. 11, 27.) Women of full age manage their own business for themselves, and it is only in certain cases, for form's sake, that the ti/tor interposes his authority. Often indeed the Prstor compels him to give his authority even against his will. (G. I, 190.) Exception.— The statutory tiiteta enjoj'ed by patrons and parents has a certain force. For they are not compelled to authorise the making of a will, or the alienation of res mancipi, or the taking up of obligations, unless indeed in the latter two -cases some weighty reason comes in. All these rules are estabKshed for their own sakes, because to them the inheritances of the woman belong at death. Thus they are not shut out from the inheritance, nor does it come to them impoverished by the alienation of the more valuable property, or wilfully burdened with debt. (G. I, 192.) II. In the time of Gaius and Ulpian, the tutor had uo power whatever to interfere with the management of the woman's property. All his powers were summed up in the auctoriias. (Ulp. Frag. 11, 25.) TUTELA MULIERUM. 729 Investitive Facts. I. By Testament (Testamentarii tutores). Not on]y a pater- familias, but a husband whose wife was in manu, could appoint a tutor to a woman. A practice grew up, before the time of Cicero, of leaving the name of the tutor blank in the will, and allowing the woman to fill it up. It was this that incurred his sarcastic observation, that whereas the laws, out of regard to woman's incapacity to manage her affairs, had subjected her to the control of tutores, the perverse ingenuity of the jurisconsults had subjected the tutores to the choice of the woman. (Cic. pro. Murena, 27.) To a wife vz mami just as to a daughter, and to a daughter-in-law in a son's mames just as to a granddaughter, a hiior can be given. In strict propriety a ttitor ouglit to be given thus : — " Lucius Titius as tutor to my children I give and leave by will " {do lego), or " I give." But if it is written thus : — " To my children " or " to my wife " " let Titius be tutor" he is properly appointed. To a wife in manu it is agreed the choice of a tutor may be allowed ; or; in other words, it may lawfully be left to her to choose for herself as tutor whom she will. The form is this : — " To Titia my wife I give the choice of a tutor j" in this case the wife may lawfully choose one either for her affairs generally, or for one or two affairs only. The power of choice may be either full or restricted. Full power is usually given, as we have just said above. Restricted power is usually given thus : — "To Titia my wife I give the choice of a' tutor once only," or " twice only." Now these two powers of choice differ greatly. A wife that has full power may choose a tutor once, or twice, or thrice, or oftener ; but a wife that has restricted power can choose no more than once, if a choice is given her but once ; and no more than twice, if a choice is given her but twice. Tutores given in the will by name are called dativij those taken by choice optivi. (G. I, 148-154.) II. Legitimi tutores. 1. Agnates. In old times indeed, as far as the statute of the XII Tables went, women too had their agnates for tutores. But afterwards the lex Claudia was passed, which took away tutela so far as respects women. A male under puberty has therefore for tutor his brother over the age of puberty, or his fathei-'s brother ; but women are no longer compelled to have such a tutor. (G. I, 157O 2. The patron and patron's children to freedwomen (libertae). This case is the same as already mentioned, p. 712. III. Dativi tutores. 1. A magistrate could appoint a tutor to a woman, — (1) If there was no other tutor (Ulp. Frag. 11, 18) ; (2) When the woman has to sue or be sued by legis actio (Ulp. Frag. 11, 24.) 730 STATUS. Besides, a Senatus Consultum allows women to asTc for another tutor in the room of one that is away ; and thereupon the former tutor ceases to be tutor, no matter how long he is to be away. (G. i, I73-) Exception.— But to this there is an exception. Y or when 3l patronus is away, no freedwoman of his may ask for a tutor in his room. (G. I, I74-) To meet certain cases, however, the Senate has allowed a freedwoman to ask for a tutor in the room of h.e.r patronus when away, in order, for instance, to enter on an inheritance. The same resolution has been come to by the Senate when the son of the patrorms is only a picpillus. For even by the lex Julia de maritmidis ordinibus (.pp marriages), ^a person in the statutory tutela of a pupillus is allowed, in order to settle a dowr^, to ask a tutor from the urban Prator. ;No doubt the son of a patronus, although under puberty, can yet be made -a freedwoman's tutor. But he cannot authorise anything, because he himself is allowed to do nothing without aiathority from his tutor. Again, if a woman is, in statutory wardship .of a madman or a dumb man, she is a}lowed by a Senatus Consultuin to ask for .a tutor in order to settle a dowry. In all these cases, however, it is evident that the tutela still remains with \he patronus :&.vsA\^\% so^. (G. i, 176-181.) There .aie several ways in which a freedwoman can have a tutor of another kind. If, for instance, she is manumitted by a woman, then under the lex Atilia (or in a province under the lex Julia et Titia) she ought to ask a tutor. For since patronesses are themselves under tutores, .they cannot be tutores. Again, if a freedwoman is manumitted by a male, and with his authority makes a coempiio, and therefore is reconveyed and manumitted, she ceases to have for tutor her patron, and begins to have instead him by whom she has been manumitted ; and he is called htr , tutor fiduciarius. Again, if a patron or his son gives himself in adoption, she. ought to .ask for a tutor to herself under the kx Atilia or Titia. In hke manner also, under the same statutes, a freedwoman ought to ask for a tutor, if her patron dies and leaves no male child in his household. (G. I, 195-195 c) 2. As in the case of pupilli, the Praetor £Liid major part of the Plebeian Tribunes at Rome, and in the provinces the pre- sident by the lex Atilia and the lex Julia and Titiaj but no other magistrate, could appoint tutores to women. lY. Cessicius tutor.. Agnates that are statutory tutores,'.a.nd manumitters, are allowedto transfer the tutela of women by an in jure cetssio (surrender in court). But the tutela of males they are not allowed to transfer ; for it is held not to be burden- some, because it .ends at the age of puberty. The man to whom the tutela is transferred is called cessicius tutor. If he dies or suffers capitis Mminutio, the tutela returns to the tutor that transferred it. Or if he that transferred it dies or suffers capitis deminutio, then it leaves the tutor cessicius, and reverts to the man that stood second as tutor — next, that i«, after him that transferred it. (G. i, 168-170.) But as far as agnates are concerned, no question is now raised in regard to the transfer of tutela. For all tutela of women by agnates was removed by the lex Claudia. Now, some have thought that tutores fiduciarii have no right to transfer their office, since they of their own accord undertook TUTELA MULIERUM. 731 the burden. But although this is the received opinion, yet in the case of a parent that has conveyed his daughter, granddaughter, or great-grand- daughter to another, on the express condition that slie shall be reconveyed to him, and has manumitted her when reconveyed, one ought not to say the same. For he is to be regarded as a statutory tutors and ought, therefore, to be privileged no less than patrons. (G. i, 171-172.) DiYESTiTivE Facts. I. Change of Tutor. A woman too can make a coempfio not only with her liusband but with an outsider. A coemptio is said, therefore, to be made either matrimonii causa or fiduciae causa. For a woman that makes a coemptio with her husband in order to stand to him in a daughter's place, ^s said to make a coempiio matrimonii causa. But she that in any other case makes a coemptio with her husband, or with an outsider, to escape iutela, for instance, is said to make a coemptio fiduciae causa. The process is this : — If a woman wishes to set aside the tutores she has in order to obtain another, with their authority she makes a coemptio. Next she is reconveyed by the coemptionater to the man she herself wishes. He tlien manumits Jier by vindieta, and forthwith becomes her ttitor — tutor fiduciarius he is called, as will appear lower down. (G. I, 114-115.) Another use to wTiicli tlie -coemptio fiduciae oausa was put, 'according to Cicero, was the extinction of sacred rites. (Cic. Pro Murena, 12.) What the nature of the liability was, and how it was got rid of by coemptio with an old man, Cicero does not explain. It is interesting as a proof that in some w,ay not stated by Gains or any of the older authorities, the pontifical college was able to enforce those religious obligations that were at one time incident to inheritance in the Epman law, as they still are in India at the present day. II. From iutela freeborn women can claim to be freed when they have three children {trium liberorum jure) ; freedwomen, in the statutory tutela of a patron or his children, when they have four. And all other women too that have tutores of anotTier kind, Atiliani or fiduciarii fqr instance, £an claim to be free when they have three children. (G. i, 194.) If, therefore, a man appoints by will a ttitor-%o his son and daughter, and both come to years of puberty, then the son ceases to have a iutor, but the daughter none the less continues in tutela. For it is only under the lex Julia et Papia Poppaea that women can .claim to be freed from tutela when they have children. (G. I, 145.) III. What we are saying does not apply to the vestal virgins. For our ancestors willed that they too should be free, to honour their priestly office. The statute of the XII Tables, therefore, provided accordingly. (G. 1,145.) Remebies. It seems from Gains that a tutor who, 3, *, 3.) Against heira of curator^ the same remedies were available as against the heirs of tutores. (I). 27, 3, 1', 23.) II. Duties of minor, etc., to cui'ator.' 1. Actio- utilis conti^aria Curationis causce. This was governed by the same rules as the action of the tutor against his pupil. (D. 27, 4, 1, 2.y B. Remedies td' Investitive Tactrwere the saiiie as in tuicla. c. Remedies to Divestitive Facta were also generally the same ; but although a pupiUus eowld not apply for the removal of a t-ator, a minor could. Persons over the age of puberty acting under the advice of a family council {ex consilio neeessariorum), may bring a charge against their tutores on suspicion. So the late Emperors Severus and Antoninus settled by rescript. (J. I,. 26^ 4 )' BOOK III INHEEITANCE AND LEGACY. 3 A BOOK III. INHEEITANCE AND LEGACY. INHERITANCE. Yn-st — ^Definition of Universal Succession and Inheritance. An " Inheritance " (Jiereditas) is defined as a universal succes- sion to a deceased person. It is necessary, therefore, to deter- mine what is meant by universal succession. The Institutes, both of Gaius and Justinian, distinguish between singular succession (acquisitio singularum reruni) and universal succession (acquisitio per universitatem). Examples of singular succession fill Books I. and II. When a person acquires ownership, usufruct, servitudes, emphyteusis, mort- gages, or acquires by contract rights in personam against another, — in all these cases there is said to be singular succes- sion. But when a person became owner of a freewoman under the Senatus Consultum Claudianum, or obtained potestas over another by arrogatio (p. 204), he was said to acquire per ■universitatem. The distinction between those cases is apparent. If I acquire from another his house and lands, it may be that I acquire all he has, but that is an irrelevant circumstance ; I acquire it as specific property, not as being all that he is owner of But a person obtaining the potestas is entitled to all the property held by the person arrogated. Again, the pater- familias became responsible for the debts of the person arro- gated, to the extent of the property acquired through the arrogation. Acquisition per universitatem is thus much more complex than acquisition of specific articles. 74° UNIVERSAL SUCCESSION. The distinction may be looked at from another point of view. Some rights all men have, such as the right to life and liberty ; some duties all men owe, as to respect the life and liberty of others. But there are rights enjoyed by particular individuals only, and duties binding only particular individuals : such are the rights that a man has in things belonging to him, and the duties he owes to others, either by his own promise or by the provisions of law. Now, if we take all the rights and duties of this sort that a man has at a given moment, we may describe them as constituting his legal personality. If, then, all these rights and duties are at one stroke transferred to another, there is a universal succession. A new-comer steps into the shoes of his predecessor, enjoying the same rights and duties, and may be regarded as clothed with his legal personality. If to this we add that the successor does not acquire these rights and duties piecemeal, that the total is not composed of addition of parts, but that all the rights and duties are conveyed as a whole, at one moment, by one act, — we have got as near as a general description can go to the notion of universal succession. As thus described, the notion of universal succession is too large. In no instance did the whole legal personality of a man pass to another. Thus, public offices could not pass, and even within the circle of private rights and duties many did not pass. According to the old law, a usufruct could not pass in a univer- sal succession ; and we have seen examples, as in adstipulatio, of rights and duties so distinctively personal that they could not pass to another. Instead of saying, therefore, all the rights and duties attached to a man at a given moment pass to another, it is necessary to say, " as many such rights and duties as the law permits to be transferred." Before proceeding to the great example of universal succes- sion — Inheritance — it will be convenient to recount the other instances mentioned in the Institutes. I. The Enslavement of Women by the Senatus Consultiim Claudianum. Justinian mentions this as a mode of universal succession. (J. 3, 12, 1.) The master of the slave with whom a freewoman persisted, after repeated warnings, in cohabiting, could become her owner. He was thus a universal successor. This statute was repealed by Justinian (p. 169). II. Arrogatio, Coemptio in manum. 1. Succession to Rights. ARROGATIO, COEMPTIO IN MANUM. 74^ There is also another kind of universal succession, introduced neither by the statute of the XII Tables nor by the Prstor's edict, but by the law that is received by consent. (J. 3, 10, pr. ; G. 3, 82.) If, for instance, a paterfamilias gives himself in adoption, or if a woman agrees to pass in manum, then all their property, corporeal and incorporeal, and all debts due to them, are acquired by the adopting father or the coemptionator — except, indeed, those that come to an end because of the capitis deminutioj usufructs, for instance, the obligation of freedmen to ser- vice contracted by oath, and all that comes under a statutory proceeding {legitimum judiciwn). (G, 3, 83,) When, for instance, a paterfamilias gives himself to be arrogated, over all his property, corporeal and incorporeal, and over all debts due to him, full rights were formerly acquired by the arrogator — except, indeed, over those that come to an end because of the capitis deminutio ; obligations to service, for instance, and his rights as an agnate. Use and usufruct, indeed, were formerly reckoned with these ; but a constitution of ours has forbidden them to be taken away by the capitis deminutio minima. (J. 3, 10, I.) But now all acquisition by arrogatio has been narrowed down by us to limits like those set to parents by birth. Nothing, indeed, except the usu- fruct is acquired through the filiusfamilias for a father, either by birth or by adoption, in all property that comes to the son from without ; the ownership the son keeps entire. But on the death of the son adopted by arrogatio, while still in the household of his adoption, the ownership as well passes to his arrogator, unless there are still alive other persons that, under our con- stitution, come in before the father in respect of property that he cannot acquire. (J. 3, 10, 2.) 2. Succession to Duties. (1.) Hereditary Debts. On the other hand, the coemptionator or the father by adoption is not answerable for the debts of the person given in adoption or passing in manum, except hereditary debts. For those, since the father by adoption or the coemptionator is now himself the deceased's successor, and falls back into the position of heir, he is directly liable at law ; while the person given in adoption, or passing in manum, is freed, because he or she ceases even to be the heir. (G. 3, 84.) (2.) Debts contracted bj the person adopted, or woman married. But for the debts formerly owed by those persons on their own account, neither is the father by adoption nor the coemptionator liable ; nor does the person given in adoption, or passing in manitm, remain bound, for the capitis deminutio sets them free. And yet against the latter a utilis actio is given by undoing the capitis deminutio. If then they do not defend them- selves against this action, all the goods that would have been theirs if they had not placed themselves in subjection to another, the Przetor allows the creditors to sell. (G. 3, 84.) Sometimes, further, we hold by a fiction that our opponent has not under- gone capitis deminutio. If, for instance, a man or woman under obligation to us by contract, undergoes this change of status, a woman by coemptio. 742 UNIVERSAL SUCCESSION. a male by arrogatio, then by theyVj civile he or she ceases to be in our debt, and we are not allowed to bring a direct inientio (statement of claim) that he (or she) ought to give. But that it may not be in the power of such a person to mar our rights, a utilis actio against him or her has been brought in, undoing the capitis deminutioj — an action, that is, in which there is a fiction that he or she has not undergone this change of status. (G. 4, 38.) By the jus civile arrogation extinguished the debts, excepting hereditary debts, of the arroffatus. This, however, was confined to contracts, and did not apply to delicts for which the wrrogatus continued liable to be sued. (D. 4, 5, 2, 3.) It is not easy to understand either the rule or the exception of hereditary debts. But the Praetor granted a utUis actio against the arrogatuSj thus reviving the extinguished debts ; and notwithstanding that the goods he possessed were now, in consequence of the arro- gation, the property of the aiTogator, the creditors were allowed to seize them and satisfy themselves. From the next passage it appears that in Justinian's time the action was against the arrogator, but his liability was limited to the goods he acquired from the arrogatud. On the other hand, for all debts due by the person given in adoption, the arrogator is not strictly liable at law. But he will be sued on his son's account ; or if he refuses to defend him, the creditors are allowed by our magistrates that have such authority, to take possession of the goods that the son would have had in usufruct as well as in ownership, if he had not placed himself in subjection to another, and to dispose of them in the way prescribed by statute. (J. 3, 10, 3.) III. — Addictio Bonorum Lihertatis Causa. According to the Roman law, all bequests and testamentary- dispositions fell to the ground if no one accepted the office of heir. An insolvent inheritance was very likely to meet this fate, with the result that all the bequests of freedom became void. To prevent this, an arrangement was introduced by Marcus Aurelius, by which a person having no claim to the inheritance was assigned it in default of all heirs, in order that the gifts of freedom might be supported. The terms of the rescript are given by Justinian. A new case of succession has been added by a constitution of the late Emperor Marcus (Aurelius). For if slaves that have received freedom from their master in a will under which no one enters on the inheritance, wish the goods to be adjudged to them in order to preserve their freedom, their prayer is heard. This is contained in a rescript of the late Emperor Marcus to Popilius Rufus, worded as follows :— " If to Virginius Valens, who by his will gave, among other things, freedom to certain slaves, no successor in case of intestacy appears, and his goods, therefore, ought to be brought to sale then the magistrate that looks after the matter shall, on application, carry out your wishes, so as to protect the freedom of those to whom freedom has been left directly, as well as of those to whom it has been left in the form of a trust. The goods must therefore be adjudged to you, on your giving security to the creditors for payment of the entire sum due to each. Those then to whom freedom has been directly given shall be free just as if the ADDICTIO BONORUM. 743 inheritance had been entered on. Those again that the heir is aslced to manumit shall obtain their freedom from you. If, however, you wish the goods to be adjudged to you only on this condition, that even slaves to whom freedom has been given directly shall become your freedmen, then to this wish of yours, if the persons whose status is in dispute consent, we grant our authority. Further, that the profit from this rescript of ours may not be brought to nought in another way by the Jzscus, that is, laying claim to the goods ; those, too, that attend to our affairs, are to know that to any advantage in money freedom is to be preferred : they must, therefore, gather in the goods in such a way as not to impair the freedom of those that could have gained their freedom if the inheritance had been entered on under the will." (J. 3, 11, pr. — i.) One of the slaves themselves might obtain the inheritance on the same terms. (C. 7, 2, 15, pr.) This rescript comes to the aid not only of the grants of freedom, but of the deceased. It saves their goods from being taken possession of by the credi- tors and sold ; for undoubtedly if in such a case the goods are adjudged, no forced sale (Jionorum venditid) follows, seeing that some one has appeared to defend the deceased, and that too, a fit person, who gives security to the creditors for the entire amount. (J. 3, II, 2.) In the first place, then, this rescript applies whenever grants of freedom are made by will. But what if a man dies intestate after making grants of freedom by codicilli, and the inheritance is not entered on by a successor in case of intestacy ? The leniency shown by the constitution applies. Cer- tainly, too, no one can doubt that if the deceased made a will, and gave freedom by codicilli, then the slaves can enjoy their freedom. (J. 3, 11, 3.) The constitution applies, as its very words show, when no one appears as a successor in case of intestacy. As long, therefore, as it is uncertain whether one wiU appear or not, the constitution will not come into force. But as soon as it is certain that no one appears, the constitution will apply. (J- 3, 1 1, 4-) If a man that can claim a full restoration of rights {restitutio in integrum) holds back from the inheritance, can the constitution come in despite this ? We answer that the goods ought to be assigned. What, then, if, after they are assigned, in order to uphold the grants of freedom, the man is fully restored to his rights ? Assuredly we shall not have to say that the freedom is to be recalled that the slaves have once enjoyed. (J. 3, 11, 5.) This constitution was brought in to uphold grants of freedom. If, then, there are none such, it never comes into force. What, then, if a master, while alive, or in the prospect of death, made grants of freedom, and with a view to avoid all question whether or not this was done to defraud creditors, the slaves wish the goods to be adjudged to them ? is their prayer to be heard ? It is better that they should be heard, although the words of the constitution fall short of this. (J. 3, 11, 6.) But as we clearly saw that many such branches of the subject were want- ing in this constitution,, we passed a very full one, into which cases of many kinds have been gathered, so as to make the law on this kind of succes- sion very full. These cases anyone can learn by reading the constitution. (J- 3, 11,7-) 744 INHERITANCE. The person that obtains this addietio is regarded as heir. He is entitled to all the property of the deceased, and can bring all actions that could be brought by the deceased. (D. 40, 5, 4, 21.) The creditors, whom he is bound to pay in full, unless they have agreed to accept a composition (C. 7, 2, 15, 1), may sue him on his promise (D. 40, 5, 4, 22), or, which was more generally the case, as if he were their own debtor, by utiles actiones. (D. 40, 5, 3.) The security required was the simple promise of the person to whom the inherit- ance was assigned, or sureties, or pledges. (D. 40, 5, 4, 8.) If sureties were given, one of the creditors was selected by the judge, to whom the sureties should give their promise. (D. 40, 6, 4, 9.) In case of competition among several persons to obtain the inheritance, they that applied simultaneously were all chosen ; but if one was prior, he was preferred, sub- ject to his giving the required security. (C. 7, 2, 15, 4.) If, after one has been ap- pointed, another offers to give freedom to all the slaves, if the first applicant professed his ability to manumit only some, then he is preferred ; but no applicant is admitted after a year. (0.7,2,15,5.) Justinian provides for another contingency, which one would have thought could scarcely occur. Suppose some of the slaves object to manumission, are their wishes to be respected, so as to prevent the others attaining their freedom ? It seems that the burden of patronage was so irksome, that it was sometimes better to be the slave of one man rather than to be the freedman of another. Justinian decided that the re- fusal of some slaves should affect themselves only, and that ihe others who desired freedom should be allowed to enjoy it. (C. 7, 2, 15, 2.) INHEEITANCE. {HEREDITAS: bonorum possessio.) Definition. The universal successor of a deceased person is a heres, and what he succeeds to is called hereditas} The heir steps into the shoes of the deceased, enjoying his rights, and bur- dened with his responsibilities. (D. 50, 17, 69.) The terms hereditas, heres, are employed (D. 5, 3, 3; D. 50, 16, 130) when the universal successor succeeded in virtue of his rights under th.e jus civile; when, however, he obtained his position in virtue of the intervention of the Prgetor, he was called bonorum possessor (D. 50, 17, 117), and what he succeeded to was called bona. (D. 50, 16, 208.) But by whichever title a person be- came universal successor, his rights and duties were the same, ' Hereditas nihil aliud est quam siiccessio in universum jus quod defunctus habuit. (D. 50, 17, 62.) Hereditas is nothing else than the succession to the whole legal position the deceased held. RIGHTS AND DUTIES OF THE HEIR, 745 and the difference in name, when it occms, indicates merely whether the title is Praetorian or derived from the jus civile. (D. 37, I, 2 ; D. 37, 1, 3, 2.) (See postea Intestate Succession, Second Period.) An inheritance {hereditas, bona) did not necessarily consist of corporeal property ; there need not be a single article ; what the heir took was the totality of rights and duties possessed by the deceased at the time of his death. (D. 37, 1, 3, 1 ; D. 5, 3i 60, pr.) For convenience, both the "heres" and "ionorum possessor" will be called "heir ; " and " heredUas " and " bona " " inheritance." Second — Rights and Duties of the Heir. In the Hindoo law, which presents many points of re- semblance to the early Roman law, "inheritance" is inextric- ably mixed up with religious theories and observances. The heir is the person whose duty it is to perform the sacred rites to the deceased, and the person whose duty it is to do so is heir. There is plausible ground for the theory that connects this system of law with ancestral worship. An opinion has been widely spread among races of low culture, that every- thing in nature has a double or shadow of itself; that the warrior has a spirit, and so likewise his dog, and his wives, and slaves, and his weapons of war, and implements of domestic comfort. If he dies, his spirit goes about disconsolate, unless it is provided with ghostly food, and surrounded by ghostly attendants. In this way is explained the origin of sacrifices of food, weapons of war, trusted slaves and wives, on the death of important persons. The destruction of these was the means of setting their shadows or ghosts free, and thus enabling them to reunite with the ghost of their departed master. At all events, there can be little doubt that the rites performed by the heir were supposed to be in some way or other essential to the com- fort of the deceased. The property that the heir obtained was necessary to enable him to perform the sacrifices required for the comfort of his ancestor's soul. Where such a state of belief prevailed, the anxiety was naturally great to have an heir. The man for whom no rites were performed was a miserable outcast in the ghostly world, wandering about naked and disconsolate. To avert this calamity, men naturally desired to leave children behind them, who, and Avhose children and more remote descendants, should keep alive the fire on the family altar, and present the offerings 74^ INHERITANCE, SO necessary to the happiness of their ancestor. Moreover, there was another side to the picture. The dead had need of the living, but so also the living had need of the dead. The spirits of the departed were not mere empty voices ; they retained power to injure, and could blast those that neglected to pay them their dues. Thus was the family tied together, the old generations with the new, in a bond of reciprocal services. Nor, if an ancestor were neglected, had his family alone to rue the impiety, for his malignant influence might be exerted against the State, if it suffered the family to do wrong. Hence the perpetuation of the family and its sacred rites was a matter of national importance. This theory would enable us to understand some of the most singular and apparently arbitrary points of the early Roman law of inheritance. But the characteristic of Roman law, as it has come down to us, is, that it is emphatically, as contradis- tinguished from Hindoo law, a purely secular system. If it ever was steeped as deeply in religion as the Hindoo law, it had at an early date relegated the religious element to the domain of moral duties, or to the care of the Pontifex Maximus. Still there are traces in the authorities of an extinct, but once vital, sacerdotal element. As a general rule, no person could acquire by usucapio unless he were a bona fide possessor ; but to this " inheritance " formed an exception. A thief could acquire the ownership of an inheritance after possession for a single year. Gains explains that the reason for this strange sanction of lawlessness was the great desire of the ancients to have vacant inheritances iilled up, in order that there might be some one to perform the sacred rites, which were specially called for at the time of death. (G. 2, 55.) On the other hand, again, one is sometimes allowed to take possession of what is another's, and to acquire it by use ; and yet it is held there is no theft, as in the case of things belonging to an inheritance of which the (necessary) heir has not yet obtained possession ; for it is held that if there be a necessary heir there can be no usucapio pro herede. (G. 3, 201.) Cicero carries us further back. He says (De Leg. ii. 19, 47-49) that he has often heard the son of Publius Scaevola repeat from his father that no man could be a good Pontifex Maximus who did not know the jus civile. Cicero, in showing the limits of this proposition, refers to the jurisdiction con- cerning the sacred rites (sacra) to be performed on one's decease. The maxim of the XH Tables setting up as an object the per- UNLIMITED LIABILITY OF THE HEIR. 747 petnation of the family worship {perpeiua sacra sunto), was appHed by the Pontifex. It was his duty to see that the religious observances were duly performed. That burden fell upon the heir in the first instance. But this was merely a duty to be executed after his accession, under the supervision of the Pontifex Maximus ; it had nothing to do with his title as heir, and did not influence his appointment. Still the connection is one that deserves to be remembered. In considering the duties of the heir, an important line is to be drawn between his position before and after Justinian. The legislation of Justinian forms the transition between the ancient heir and the modern executors or administrators. A. Rights of the Heir. Generally, the heir succeeded to all the rights (whether jus in rem or jus in personam) of the deceased. (D. 29, 2, 37 ; D. 5, 3, 18, 2 ; D. 5, 3, 19, pr.) The exceptions have been already noticed in detail. B. Duties op the Heir prior to Justinian. The duties of the heir fall into two classes ; (1) those imposed upon him as a universal successor {in universuTn jus) of the deceased ; and (2) those imposed on him by the deceased, either in a will, or, in later times, in codiciUi. There were important differences between wills and codiciUi, but it will be convenient at present to disregard these, and to speak of all creditors, whether under a, will or codicUli, as legatees. I. Duties of the Heir to the Creditors of the Deceased. We have already seen in detail for what debts of the deceased the heir was liable. The chief exception was in the case of penal actions. (D. 35, 2, 32, pr.) (Pp. 55, 327, 331.) The heir was bound to pat all the debts op the deceased, even ip he obtained no property from him WHATEVER. (D. 37, 1, 3, pr.) This was one of the obligations that were said to arise quasi ex contractu. The rule of law is the same in the case of an heir that has come under an obligation to his co-heir in a proceeding familiae erciscundae on those grounds. (J. 3, 27, 4.) The heir, too, is understood to be under an obligation on account of the legacies, but not properly by contract ; for the legatee cannot properly be said to have carried on any business affairs either with the heir or with the deceased. But because the heir is not bound ex maleficio, he is understood to owe the legacy by a quasi-contract. (J. 3, 27, 5.) 74^ INHERITANCE. CONFUSIO. — When a creditor became heir to his debtor, or a debtor to his creditor, the two opposite characters of debtor and creditor were united in the same person, and the obli- gation was necessarily extinguished. A person cannot be debtor to himself or creditor to himself. In this way an obli- gation might be put an end to, and accordingly confusio is generally enumerated as a mode of extinguishing obligations. It will be seen presently that, owing to the introduction of inventories by Justinian, confusio as a divestitive fact prac- tically ceased to exist. Separatio bonorum. — In order to understand the Roman law of inheritance, it is necessary never for one moment to lose sight of the fact, that until the introduction of inventories by Justinian, from the very earliest times, THE HEIE WAS BOUND TO PAY ALL THE DEBTS OF THE DECEASED, EVEN IF HE OBTAINED NO PROPERTY FROM HIM WHATEVER. (D. 37, 1, 3, pr.) If the debts exceeded the value of the property left to the heir — in other words, if the deceased died insolvent — the inheritance was said to be damnosa. In a few instances, however, even prior to Justinian, the Prsetor allowed the estates of the heir and the deceased to be treated as separate. This was called the separatio bonorum. (D. 42, 6, 1, pr.) 1. When the inheritance is solvent, and the heir insolvent, the creditors of the deceased on petition will obtain a separa- tion of the property of the deceased from that of the heir, so that the creditors of the heir cannot recover any of the pro- perty inherited from the deceased until the creditors of the deceased are paid in full. (D. 42, 6, 1, 1.) The creditors that obtain a separatio are paid in full out of the effects of the deceased, even in preference to those to whom the heir has pledged property belonging to the deceased. (D. 42, 6, 1, 3.) But if they have once elected to separate the goods of the deceased, they cannot, if there is a deficiency, claim the balance of their debts from the heir. (D. 42, 6, 5.) They may, however, if they prove unavoidable ignorance, have the separatio rescinded. (D. 42, 6, 1, 17.) When the inheritance is insolvent, and the heir solvent, but the two together are insolvent, the creditors of the heir cannot have a separation. A debtor by contracting new debts can always diminish the property divisible among creditors, and a debtor who to disappoint his creditors accepts a burdened in- heritance, does no more. (D. 42, (3, 1, 2 ; D. 42, 6, 1, 5.) RIGHTS AND DUTIES OF THE HEIR. 749 Suppose, again, the inheritance is solvent, the heir is insolv- ent and dies, or, if not insolvent, leaves enough to pay his creditors, but not his legatees. Can the legatees of the first inheritance demand a separation ? As against the creditors of the first inheritance they cannot, biit after these are satisfied in full, they may, apparently, proceed against the creditors of the heir (D. 42, 6, 6, pr.), and at all events against his legatees. (C. 7, 72, 1.) A boy (Gaius) tinder the age of puberty is heir to his father (Titius), and dies before reaching puberty. Maevius is the heir substituted for him in this event. Maevius is insolvent. The creditors of Titius, and even of Gains, can claim a separation against the creditors of Maevius. (D. 42, 6, 1, 7.) Sempronjus makes Attius his heir ; Attius makes Julius hia heir ; Julius makes Maevius his heir. Maevius becomes heir to Julius, and is insolvent. The creditors of Attius and Julius can claim a separation as against the creditors of Maevius. Suppose Attius were insolvent, the creditors of Julius cannot claim a. separation as against the creditors of Attius. (D. 42, 6, 1, 8.) 2. When the heir of an insolvent inheritance is a slave v?ho obtains his freedom and the inheritance from the deceased, he tnay obtain a separation of the property that he acquires after the testator's decease, and he is allowed also to claim as a creditor on the estate of the deceased, if any sums were due to him by his master (of CQurse only as naluralia debita). (D. 42, 6, 1, 18.) II. Duties of the Heir to Legatees. The HEIR IS BOUND TO PAY ALL LEGACIES AND fideicommissa SO PAR AS THE PROPERTY THAT DESCENDS TO HIM GOES, BUT NOT FURTHER. In the old times a man might lawfully spend his whole patrimony in legacies and grants of freedom, and leave nothing to the heir except an empty name. This seemed to be allowed by the statute of the XII Tables, which provided that the directions of a testator as to his property should be held binding, in these words :- — "As the legacies of what is his are, so let the law be {uii legassit suae rei, itajus esio)." The result of this authorisa- tion was that the heirs named in the will held back from the inheritance ; and so many men died intestate. (G. 2, 224.) If the heir named did not accept the inheritance, the will was void, the legacies and bequests of freedom fell to the ground, and the wishes of the testator were entirely frustrated. It was thus even more for the sake of the testator than of the heir that a series of enactments was passed, having for their object to ensure a substantial interest in the property to the heirs, and thus to induce them to enter and give effect to the testator's dispositions. J$0 INHERITANCE, 1. Lex Furia (B.C. 183). The /ex Fun'a, therefore, was passed, by which no one, with certain exceptions, was allowed to take more than a thousand asses as legacies or gifts in prospect of death. But this statute, too, failed to effect what it wished. A man, for instance, that had a patrimony of five thousand asses, could bequeath one thousand to each of five persons, and so spend the whole of the patrimony. (G. 2, 225.) Ulpistn cites this as an instance of a lex minus quam perfecta, because it imposed a penalty of fourfold the excess beyond 1000 asses taken by any one legatee, but did not declare the legacy invalid beyond that amount. (Ulp. Frag. pr. 2.) Cognati manu- missoris (see postea, Intestate Succession) were excepted from the limit of 1000 asses. (Ulp. Frag. 28, 7.) A lex perfecta prohibits something, and declares it void, if it ia done. It is imper- fecta if it forbids something, but imposes no penalty, nor declares the thing, if done, to be void, of which class Ulpian quotes the lex Cincia as an instance. (Ulp. Frag, pr. 1.) The lex Falcidia was perfecta, and invalidated all legatees to the extent to which they deprived the heir of his Palcidia Quarta, 2. Lex Voconia. — According to Theophilus, this was a plebis- citum carried by Quintus Voconius Saxa, Tribune of the Plebs, at the suggestion of the elder Cato. Supposed date, B.C. 169. The /i?jr Voconia was therefore passed at a later time, which provided that no one could lawfully take more, as legacies or gifts in prospect of death, than the heirs took. Under this statute, plainly, in any case the heirs would have something. But yet a little defect sprang up ; for by dividing his patrimony among many legatees, the testator could leave so little to the heir that it was not for the heir's advantage to undertake, for the sake of this gain, the burden of the whole inheritance. (G. 2, 226.) The lex Voconia contained two other provisions, (1) A woman could not be insti- tuted heir to any man whose fortune was registered at the census as 100,000 asses or upwards. (Cic. II. Verr. i. 41, 42, § 107-108.) (2) Women might be legatees for more than 1000 asses allowed by the lex Furia, provided the amount did not exceed one-half the testator's estate. (Quint. Declam. 246.) 3. I^ex Falcidia, carried by Publius Falcidius, Tribune of the Plebs, under Augustus, B.C. 40. The lex Falcidia therefore was passed, which provided that no one might lawfully bequeath more than three-fourths of his property. Necessarily, then, the heir would have one-fourth of the inheritance. This is the law now in use. (G. 2, 227.) In grants of freedom too, excessive licence was restrained by the lex Fufia Caninia, as we related in the first book of these Commen- taries. (G. 2, 228.) (See p. 182.) The terms of the lex Falcidia were : — "Quicunque civis Rom anus posthano Legem rogatam, is quantam cuique civi Romano pecuniam jure publico dare, legare volet ius potestasque esto ; dum ita detur legatum, ne minus quam partem quartam bereditatis eo testaraento heredes capiant. Eis, quibus quid ita datum, legatumve erit earn pecuniam sine fraude sua oapere liceto. Isque heres, qui eam pecuniam dare jussua damnatus erit, eam pecuniam debeto dare, quam damnatus est." (D. 35, 2, 1, pr.) RIGHTS AND DUTIES OF THE HEIR. 75 1 We have still to look narrowly at the lex Falcidia, the latest placing a limit on legacies. In old times, indeed, by the statute of the XII Tables, the power of leaving legacies was unrestrained, so that a man might lawfully spend his whole patrimony in legacies, since that statute had this provision, " As the legacies of what is his are, so let the law be." But it seemed best to narrow this licence in leaving legacies. Such provisions were made in the interest of the testators themselves, for often men died intestate because the heirs named in the will refused to enter on inheritances from which they would have no gain, or a very trifling gain. To remedy this, then, both the lex Furia and the lex Voconia were passed ; but neither of these seemed able to accomplish its aim. Last of all, therefore, the lex Falcidia was passed, which provides that no one can lawfully leave more than three- fourths of all his goods in legacies. Thus whether one heir or several heirs be appointed, he or they must have left them one-fourth part. (J. 2, 22, pr.) Exceptions. — The statute did not apply in the following cases : — 1. To tlie will of a soldier made while on service, but it did apply to the will of a veteran. (D. 35, 2, 40, pr.) While yet a civilian, a man makes a will. Afterwards, when a soldier on servioe, he adds codicilli. The Faloidian law does not apply to the property disposed of by the codicilli, but it does to the property disposed of by the will. (D. 35, 2, 96.) A soldier on servioe makes a will, and after leaving the service, codicilli. The Faloidian law applies to the codiciUi, but not to the will ; in other words, the heir will retain one-fourth of the property disposed of by the codiciUi, but not necessarily any of that dealt with by the wLU. (D. 29, 1, 17, 4.) 2. To a legacy of a debt to a creditor. If, however, more is left to the creditor than the testator really owes him, the excess, but the excess alone is liable to be reduced for the Faloidian fourth {Falcidia quarta). (D. 35, 2, 14, 1 ; D. 35, 2, 6.) 3. If a slave is bequeathed on trust to be manumitted, and nothing is left to the legatee out of which the fourth could be paid, the lex Falcidia does not apply (D. 35, 2, 33, pr.) ; but if any other property is given to the legatee, his legacy is regarded as including the value of the slave, for the purpose of the Faloidian fourth. (D. 36, 2, 35.) 4. When Justinian introduced Inventories, the heir lost his right to the Falcidia quarta if he failed to make a proper inventory ; and Justinian also allowed the testator, if he chose, to refuse the fourth to his heir. (P. 756.) If the heir paid the legatees in full, he could not reclaim the fourth. (C. 6, 50, 19.) 5. When fm heir entered under the S. C. TreheUianum by compulsion, at tile risk of the JideicomTnissarius, he was not allowed the quarta. With these exceptions, the Faloidian law applied to every sort of valuable right, and against every kind of legacy or gift mortis cailsa. (Paul, Sent. 3, 8, 1 ; C. 6, 50, 5; D. 35, 2,1, 7.) The mode of valuation. — As the Faloidian law required a clear fourth of the inheritance to be reserved for the heir, four points required to be settled: — (1) What was a clear fourth? (2) How was the property valued? (3) How were the legacies valued? and (4) At what moment was the valuation taken from? 1. What was a clear fourth ? 752 INHERITANCE. In taking an account of the property, as required by the lex Falcidia, all debts are first deducted, and also the funeral expenses, and the prices of the slaves that are manumitted. Next, as regards the remainder, the account is so handled as that under it a fourth part shall remain with the heirs, and three-fourths be divided among the legatees, each receiving a proportionate part, according to the legacy left him. Suppose, for instance, that 400 aurei were left in legacies, and that the whole patrimony from which the legacies ought to be drawn amounts only to 400 aurei., then a fourth must be sub- tracted from the share of each legatee. Suppose, again, that 350 aurei were left in legacies, then an eighth ought to be subtracted. Lastly, suppose the testator left 500 aurei in legacies, then to start with a fifth, and next a fourth ought to be subtracted ; for we must first subtract all that is in excess of the goods, and next, that part of the goods that ought to remain with the heir. (J. 2, 22, 3.) The deductions embrace — (1.) Funeral expenses (D. 35, 2, 6), but not the expense of a tombstone. (D. 35, 2, 1, 19.) (2. ) Debts due by deceased, including what the deceased owed the heir. (D. 35, 2, 87, 2.) An insolvent testator has made legacies. The heir compounds with the creditors, by which he gets something for himself. The legatees cannot claim any portion of this surplus, because the heir has got it not qua heir, but in virtue of the composition. (D. 35, 2, 3, 1.) The testator Titius along with Gaius is jointly bound for 10 warei. How much of this is to be debited to Titius ? If Titius and (jaius are partners, then the share of each is certain ; but if not, you must wait the event, for Gaius may be able to pay nothing or he may pay all. (D. 35, 2, 62, pr.) (3.) The value of slaves manumitted at once or at a certain future day is not reckoned, but if the manumission depends on a future and uncertain event, the value is taken in the same way as that of other conditional obligations, according to the rules to be presently explained. (D. 35, 2, 36, 2 ; D. 35, 2, 37, pr.) ( 4. ) Legacies for permanent additions to temples or churches {d(ma deorwm), (Paul, Sent. 4, 3, 3 ; Nov. 131, 12.) (5.) The expenses of realising the estate. (D. 35, 2, 72.) 2. The property must be valued at its actual and present Worth (D. 35, 2, 42 ; D. 35, 2, 62, 1), and could not be taken at ■my arbitrary iigure named by the testator. (D. 35, 2, 15, 8.) The standard of value was what the thing would fetch in the market, not what a person who had a special liking for it might give. (D. 35, 2, 63, pr.) If the heir sells at a figure above or below the true market value, it is the latter, and not the price he gets, that is taken into account. (D. 35, 2, 3, pr.) Conditional obligations were the most difficult to appraise. One method was to fix the value at what the conditional obligation would fetch if sold simply as a chance. But the better way was to treat it either as unconditional or as having failed. If the promise was taken as unconditional, its value was added to the inheritance, and the heir stipulated with the RIGHTS AND DUTIES OF THE HEIR. 753 legatee for the return of a proportion, if afterwards it turned out that the condition failed, and that nothing was due. If the promise was taken as having failed, the heir by stipula- tion promised to pay the legatee his due proportion, if after- wards the conditions were fulfilled and the money was paid. (D. 35, 2, 73, 1.) 3. Valuation of the legacies. In order to estimate how much was due to the heir, it was essential to arrive at the amount or value of the legacy. In a few cases this presented some difficulty. (1.) A testator bequeathes land belonging to another. The 'heir buys it at an excessive price. For the purpose of the Falcidian fourth, he cannot value the legacy at the price he paid, but only at a fair price. (D. 35, 2, 61.) (2. ) In a suit for a legacy, the oath of the legatee as to its vslluo is made. .Not that which is penal, but the real value is reckoned .for the Falcidian fourth. .(D. 35, 2, 60, 1.) (3. ) In conditional legacies, the mode approved by Piiul >vas mutual guarantees, and not the price that the conditional legacy might fetch if sold. This has been explained in reference to the valviatiop of conditional obligations forming part of the inheritance. (D. 35, 2, 45, 1.) (4.) Legacy from a future day {ex die relictum). A deduction is made in respect of the advantages enjoyed before the time arrives from the use of th^ thing by .the heir. (D. 35, 2, 73, 4.) (5.) A perpetual annuity. The .value is the principal ithat, with ijiterest at 4 per cent., would yield the annual sum. (D. 35, 2, 3, 2.) (6. ) Annuity for Ijf e. jSmilius Maoer gives the following table for the valuation of life annuities. The rule was to multiply the annual allowance by the probable number of years that the .annuitapt would .live, and the quotierit is the value of the legacy. (D. 35, 2, 68, pr.) Annuity TablE'CF jEmihiis Maces. Jj'rom 0to.20 years the duration of life is taken at 30 years. „ 20 „ 25 „ „ 28 .„ „ 26 „ .30 .„ .„ 25 „ „ 30 „ 35 ,„ „ 22 „ ,„ 35 ,„ 40 „ „ 20 „ „ 40 ,,; 50 (59 less the actual age of annuitant). „ •50 ,, 55 years the duration of life is taken at 9 years. „ 55 „ 60 .„ „ 7 „ ,, 60 onwards, „ .,, 5 „ Ijega.cy Jto Municipality the time allowed is .» 30 „ i. Time of the yaluation. The amount ofthe patrimony to whicih an account under the lex- Falcidia applies, is the amount when the testator died. If, therefore, he had, for instance, a patrimony of 100 emrez, and left in legacies 100 aurei-i'the legatees profit nothing by the fact that before the inheritance is entered on so great an addition has been made to it 'by means of the slaves, or by the birth of children to the female slaves belonging to the inheritance, or by the in- . crease of .th.e .cattle, that after .spending 100 aurei in paying the .legacies, the 3 ^ 754 INHERITANCE. heir will have a fourth of the inheritance ; but it is necessary none the less to subtract one-fourth from the legacies. If, on the contrary, he left seventy- five aurei in legacies, and before the inheritance is entered on the goods are lessened, by fire, it may be, or by shipwrecks, or by the death of slaves, so that the substance that is left is not more than seventy-five aurei, or perhaps even less, still the legacies are due entire. Butthis. brings no loss on the heir, for he is free not to enter on the inheritance. The legatees then must in con- sequence agree with the heir foi some part ; since otherwise the will may be abandoned and they obtain nothing. (J. 2„ 22, 2,) The usual course was to appoint an arbiter to value the property. This valuation might be had at the instance of the smallest legatee, but it did not bind the rest. Usually, however, the heir gavenotioa to the legatees to-appear before the arbiter, and generally also to the creditors to prove their debts If the heir offers what appears to be the clear balance,, the legatees must promise by StipUlatioB to return any excess that they may eventually be shown to have received. (D. 35, 3, 1, &.) It was entirely for the arbiter to deteriiiine what accounts he wotild* require to be produced, and generally what proof he might deem necessary or' sufficient. (D. 35, 2, 95, 2:) 0.. Duties of the. Heir after the Introduction oe Inven- tories. The liability of the teir to pay all the- debts- of his ancestor, even when nothing "was left to- enable him to do it,- was not an essential constituent of universal s-ncees&ion.- In avpogaiio, for example, the new paterfamilias, although a Universal successor, was not by the civil law responsible foi? any debts of the person arrogated, and even under the Frsetor's- edict was never obliged to pay moi'e than he acquired through the- son.. But this- liability was an essential part of the law of 'fnherit- ance from the earliest period. Tlie principle, indeed,, was never touched until the changes introduced by Justinian, We must know, however,- that the late E.m.peroi; Hadrian allowed a man, althoiTgh over five-and-tvventy, to- renounce an inheritance on which he had actually entered, because a huge debt came to Hght,tharat thetimehe entered was unknown. This the late Emperor Hadrian granted as a special favour to one. The late Emperor Gordian, however,, afterwards extended this to all soldiers, but to them only. But our goodness, has granted this favour to all the subjects of our empire alike, a-nd has writtfen a constitution at once perfectly fair and noble. If its tenor be observed, men may lawfully enter on an inheritance, and yet be liable- only to tihe value' of the goods, as they actually turn out. In such a case, then, they need not call in the aid of deliberation, unless they neglect to observe our constitution, and think they must deliberate, and so prefer to take on their shoulders the ancient burden of entry. (J. 2, 19,, 6.) The principle upon which Hadria-n and Gordian proceeded was to rescind the acceptance- of the inheritance and relieve the heir from his position altogether. Justinian made a far deeper change. He conceived the plan of retaining the heir, by depart- RIGHTS AND DUTIES OF THE HEIR. 755 ing from the ancient rule that the heir was answerable for all the debts of the deceased. This was to break np an association of ideas riveted by the practice of more than a thousand years. The ideas of an heir and of unlimited liability were indissolubly asso- ciated for ages. It was a bold and successful strobe to convert the heir into a mere official, designated by the deceased for the purpose of winding up his affairs and distributing his property. The heir was now a mere executor,, with the privilege of being residuary legatee,, and, if the testator did not forbid it, of retaining the Falcidiau fourth. Justinian makes, two classes of heirs, those that do not, and those that do, make an inventory. Those that do not make an inveutoiy are in a worse position than the heir by the old law. They are liable for all the debts of the deceased (C 6, 30, 22, 1), and are heir», in the old sense, to all intents and purposes. (G 6, &0, 22, 12.) And not only so, but they are deprived of the Falcidian fouvth (Nov. 1, 2, 1), and they must pay all the legacies, even if the effects of the deceased should be insufScient for the purpose. (Nov. 1^ 2, 2.) Practically, therefore, if there was any doubt as to the solvency of the inheritance, the heir was compelled to make an inventory. (G. 6, 30, 22, 1.) I. Duties of Heiv that has made an Inventory to Creditors of Deceased. In the first place, the legal personality of the heir and of the deceased was no longer regarded as one. The doctrine of confusw was an inevitable corollary from the old concep- tion of heirship. But it was a significant part of the change made by Justinian, that the claims of the heir against the deceased, and of the deceased against him, were now put in the same position as if the heir were entirely uncon- nected with the succession. The heir ranks as a creditor on the estate of the deceased. Under Justinian's reforms a question arises that could not occur under the old law — the question of priority of payment among creditors. Under the old law, each creditor was entitled to payment in full from the heir ; but when an inventory was made, it became important to determine in what order the creditors should be paid if the inheritance was insolvent. Order of Priority. (1.) Funeral expenses. (2.) Cost of registmng the wiU. 75^ INHERITANCE. (3.) Cost of inventory, and generally other necessary expenses incidental to winding up the affairs of the deceased. (C. 6, 30, 22, 9.) (4.) The heir may pay those whose claims are before him, and if nothing remains, he is not bound in respect of any creditors subsequently turning up. (C. 6, 30, 22, 4.) (5.) Among those whose claims are before him, creditors secured by mortgage, and those having priority by law, come before unprivileged creditors. (C. 6, 30, 22, 9.) If any creditors are unsatisfied, their only recourse, if they are prior mortgagees, is to compel subsequent mortgagees to buy them off, or to give up the property mortgaged. (C. 6, 30, 22, 6.) Again, if legatees have been paid, any creditor may compel them to discharge their claim to the extent of their legacies (C. 6, 30, 22, 5) ; but creditors have no claim on the heir (C, 6, 30, 22, 7), or on any purchaser from the heir of property sold to discharge debts and legacies. (C. 6, 30, 22, 8.) The heir was not bound to pay any debt until the time allowed for making the inventory had expired. (C. 6, 30, 22, 11.) When the heir lives near the property, the inventory must be begun within thirty days, and finished within ninety days from the time the heir learns that the will has been opened, or that he is heir ab intestato. (C. 6, 30, 22, 2.) If the heir lives at a distance from the place where the property, or the greater portion of it is, a year is allowed for the completion of the inven- tory, reckoning from the death of the deceased, not from the time the heir learns his position. In this case, the signature to the inventory may be made by agents on the spot. (C. 6, 30, 22, 3.) The inventory consisted of an enumeration of all the deceased possessed at the time of his death, and must contain an attes- tation by the heir: — (1) that it is accurate and complete ; and (2) that he has not misused and will not misuse any of the property in his custody. (C. 6, 30, 22, 2.) The inventory must be in writing, signed by the heir ; or, if the heir cannot write, a special notary must sign it at his request in the presence of witnesses who know him, and he must mark it with the sign of the cross. (C. 6, 30, 22, 2.) II. Duties of Heir that has made an Inventory to Legatees. The heir is bound to pay the legatees only in so far as the effects go ; but Justinian altered bis rights with regard to the Falcidian fourth in two important particulars. 1. The heir was not entitled to the fourth, if the testator declared he should not have it. (Nov, 1, 2, 2.) 2. If the testator did not refuse the fourth, still the heir was not entitled to it, unless he made an inventory with certain additional formalities. The heir must invite the legatees to JOINT-HEIRS. 757 appear, if they live in tlie same city, or their agents, if they are persons that, from their rank, age, or other reason, are entitled to the privilege of being represented by an agent. If they do not accept the invitation, then three witnesses (at least) belonging to the city must be present, trustworthy, sub- stantial men of the highest respectability. An inventory is to be made in their presence, and with their testimony that everything is entered the heir may rest content. (Nov. 1, 2, 1.) J I N T - H E I R S. Either one man or more, to any number whatever that one wishes, may lawfully be made heirs. (J. 2, ^4, 4.) Rights aSd Duties: I. Rights and Duties as between the Joint-Heirs themselves. (1.) Rights to the effects of deceased (res hereditariae). Each joint-heir is joint-owner of every article of property derived from the deceased. But each can dispose of his share without the consent of the others, and the purchaser becomes a joint-owner with them. (C. 3, 37, 3.) Sach heir is entitled to partition, so that he may have the individual ownership of a part of the propei-ty according to his share. (D. 10, 2, 54 ; D. 10, 2, 1, pr.) This was given by a^ old action mentioned in the Xll Tables, judicium familiae erciscundae. In regard to the property inherited, joint-heirs are thus joint- owners, and liable to the obligations of joint-owners. (D. 10,2, 22, pr.) The rules then applicable to joint-ownership are valid in regard to joint-heirs. (D. 10, 2, 56; D. 10, 3, 4, 3; D. 10, 2, 16, 6.) (2.) Jus accrescendi. If one of several persons nominated heir for any reason does not become heir, his share is divided among such as become heirs, in proportion to their respective shares. Where there are several statutory heirs, and some pass the inheritance by, or are hindered by death, or some other cause, from entering upon it, then their share accrues to the rest that have entered ; and although those that have entered may have died before such accrual, yet their share belongs to their heirs. (J. 3, 4, 4.) A testator leaves two-thirds of his inheritance to a son that may be born after the will is made, and one-third to a daughter that may be born after the will is made. A son only is born. He is sole heir to the whole property. (D. 28, 2, 28, 4.) The lex Julia et Papia Poppaea introduced a very important 75^ INHERITANCE. alteration in the jus acerescendi. The lex Julia provided that if the heir named in the will survived the testator, but died before the will was opened, or if he died in the lifetime of the testator, his share should be eaduca, and become the property of the Exchequer {Fiseus). This applied against all joint-heirs, unless they were descendants or ancestors of the deceased within tha third degree. The old law was, however, left standing, when the nomination of the heir was void ab initio, or the heir nominated never was born. A peculiarity of the jus acerescendi is, that it operates without the consent and even against the wish of the heir whose share is increased by it. If a pei'son once becomes heir, he cannot prevent his share being increased. (D. 29, 2, 53, 1). A. and B. are made joint heirs for one-half, and C is made heir of the other half. A. dies. His share accrues solely to B,, who now gets one-half. (D. 28, 5, 20, 2.) Let Titins be heir. Let Gains and Maevius be heirs in equal pai-ts. Gaius and Maevius are not conjoint heirs of one-half ; they are taken together rather for speed in writing that to indicate that they jointly divide the inheritance with Titins. Therefore, if Gaius or Maevius dies, his share is tJCfuaUy divided between the survivors. (D. 28, 6, 66.) A. is named heir for one fourth, B, for one-fourth, and G. for one-half. A. dies with- out being heir. Suppose A.'s share is worth 60 aurei, then .0. gets forty aurei and B. twenty. (D. 28, 5, 59, 3.) Maevius, Titius, and Seiusare joint-heirs«quaUyto Attius. Titius alone enters on the inheritance of Attius, and dies leaving Seius his heir. What share does Seiu acquire in the inheritance of Attius .? As heir of Titius, he at once gets his share, which is one-third ; if he refuses to enter on the inheritance of Attius, his .share is divided equally between Maevius and Titius, so that without himself entering on the inheritance of Attius, he gets the third ef Titius and the half of his ovm third. But a third and a sixth together make oae-half of the whole inheritance of Attius ; if he enters on the inheritance of Attius he then gets his own third and the third of Titius, making together two-thirds. (D. 28, 5, 59, 7.) There was in -old times another mode of acquisition under the Jus civile — that, namely, by the right of accrual {jus acerescendi), which was of this kind. If a slave was owned in common by Titius and anotlier, and that other alone gave him freedom, either by vindicta or by will, in that case his share was lost and accrued to his partner. But it was the worst of examples that the slave should be defrauded of his freedom, and that as the result a loss should be inflicted on his humaner masters, while to the sterner gain accrued. Regarding this, then, as altogether invidious, we have thought it needful to heal it with a dutiful remedy by a constitution of ours. In it we have found a way by which the manumitter and his partner, and the slave that received his freedom, may all aUke enjoy a boon from us. The freedom runs on and is effectual — indeed, to favour freedom, even the old legislators most plainly decided many points in defiance of the general rules. The man that gave it is allowed to rejoice that his liberality is confirmed. The partner, lastly, is kept from suffering any loss, for he receives a price JOINT-HEIRS. 759 for the slave proportioned to his share of the ownership, as determined by us. (J. 2, 7, 4.) (3.) Custody of the Title-deeds. On a division of the property, in case of dispute, the judge settled who should have the title-deeds. (C. 3, 38, 5.) The title-deeds were not to be assigned to him that offered most for their custody. ^D. 10, 2, -6.) They were either to be deposit-ed iu the temple of Vesta, or given to one of the heirs. If given to an heir, be mu-st furnish copies to th« other heirs, and bind himself to produce the original when required. The general rule was to prefer the heir that had the largest share in the inheritance ; if they had ^equal shares, a selection was made by lot, or by agreement among th-emselves they might choose a third party, to whom th^e documents should be entrusted. <.D. 10, % 4 3 ; D. 10, 2, 5.) Other things being equal, a preference was to be given t© the elder over the younger, to men over women, tofreebornmen over freedmen, and generally to those of higher over those -of lower rank. (D. 22, 4, 6.) II. Duties of Joint-Heirs in respect of ■Creditore. In respect of the suras due to or by the deceased, the joint- heirs werenot-eitherjoint-creditoi-s or joint-debtors. Each was severally liable or entitled according to his own .share. Thus an heir far one-half -could not sue any -debtor of the deceased for more than one-haff of the debt, nor be sued by a creditor of the deceased for more than one-half. This decision was established by the XU Tables. (-C. 3, 36., 6..) It is manifest that if an heir were responsible not merely for the 'debts in proportion to his own share, bnt had to make good the default af -all the other heirs, it would have been moi:e dan- gerous to accept -a part than the whole of an inheritaaace. From this danger the heirs were fi'eed by the provision of the XII Tables. Bnt a -grave inconvenience necessarily resulted. A creditor of the -deceased had to divide his claim into as many parts as there were heirs, and to sue each sepai-ately. So a debtor of the deceased was exposed to as many actions as there were heirs. Two ways of avoiding this inconvenience were resorted to. The testator might apportion the debts among his heirs, requiring each to pay specific debts, and giving each an exclusive right to specific debts due to the deceased. The heirs were obliged to respect this assignment. (D. 10, 2, 20, 3.) Again, either by reciprocal stipulations or by order of a judge, the sums due to and by the deceased might be divided. The 760 INHERITANCE. judge could not, indeed, make any heir a sole creditor or debtor in respect of any particular sum, but in a circuitous way the end in view was accomplished. When a sum was due to the deceased, the heir to whom the debt was assigned sued him partly in his own name, and partly as the agent of all the other heirs {procurator in rem suam), and thus received the entire debt, the debtor obtaining at the same time a full discharge. When a debt was due by the- deceased^ and one of the heirs to whom it was not assigned is sued for his part, he can require the heir that is obliged to- pay the debt to come in and defend the action. But, doubtless, this did not prejudice the creditor's right against the other,, if the heirs sued failed to pay the whole of the debt. (D. 10,.2, 3 ;. D.. 10,, 2, 2, 5.) The rule of division' does not apply to a creditor secured by mortgage.- The heir to whom the thing, mortgaged is given must pay the' whole debt. (0. 4, 16, 2.) III. Duties of J'oibt-Heirs' to Legatees. 1. Each' of several heirs is bound to pay legacies (not speci- fically charged upon any heir) in proportion to the property he gains, but no further, and is not obliged to make up any defi- ciency caused by the insolvency of any of the other heirs. (D. 31,, i; 33; pr.) Again, each heir is entitled,, under the lex Falcidia, to a clear fourth of his share; The following question has been raised : Suppose two heirs are appointed, say Titius and Seius, and that the part given to Titius is either entirely exhausted by legacies given through him by name, or burdened beyond measure : while through Seius there are left either no legacies at all, or legacies that reduce his share only one-half. Now Seius has a fourth of the whole inheritance or more ; is Titius then to be allowed to keep back nothing from the legacies left through him ? The decision is that he can keep back enough to have the fourth part of his share unimpaired. For the account under the lex Falcidia is to be taken in the case of each heir singly. (J. 2, 22, I.) A testator left 400 anrei to Titius and Maevius. The share of Titius was burdened with legacies to the extent of 200 aurei ; and the heir, whoever he should be, had to pay another 100 aurei in legacies. Maevius did not accept. Titius cannot require a reservation of a Fahidian fourth of the 200 aurei charged on the share ; but as, after paying 300 aurei in legacies, he retains a clear fourth of the whole, he must be content with that. (D. 31, 1, 61, pr.) Gaius and Titius are each made heirs for one-fourth, and Gaius is made heir for the other half, subject to a condition. If the condition is fulfilled, the quarter and half shares of Gaius must be conjoined for the purpose of reolioning the Falcidian fourth. (P. 35, 2, 87, 3.) joint-heirs. 761 Special Investitive Facts. 1. What words constitute heirs jointly 1 The question is one of intention. Did the testator intend the persons named to take jointly or severally or successively? — that is, the second to take only if the first failed. TUiu, he,-es esto imo Seius. | ^ems alone as heir. (D. 28, 5, 47, pr.) (1.) Primns et fratris md filii aeque heredes sunto. (2 .) Primus et fratris mei filii heredes sunto. In the first instance, all are heira jointly and in equal shares. In the second Primus gets one half, and the nephews the other half. (D. 28, 5, 13, pr.) Titius ex parte dimidia heres esto, Seius ex parte dimidia ; ex qua parte Seium institui, ex eadem parte Sempronius heres esto. Titius gets one-half, and Seius and Sempronius each a quarter. The true construction is that Seius and Sempronius are joint-heirs of one-half, and Titius sole heir of the other half. (D. 28, 5, 15, pr.) 2. The rules that determine the shares of the respective heirs. An inheritance is usually divided into twelve parts {iinciae), all included under the name of the as. These parts, too, have their own names, answering to those from an uncia to an as, — namely these : unciaj sextans (sixth part, i.e. 2 unciae) ; guadrans (fourth part, i.e. 3) ; triens (third part, i.e. 4) ; qidticunx (five-twelfths, ix. 5) ; semis (half, i.e. 6) ; septunx (seven- twelfths, z>. 7) ; bes (two-thirds^ i.e, 8) ; dodrans (three-fourths, i.e. 9) ; dextans (ten-twelfths,, i.e. 10) ; deunx (eleven-twelfths, i.e. 11) ; as, i.e. 12. But it is not necessary that there should be precisely twelve parts, for there are as many unciae in the as as the testator wished. If, for instance, a man names in his will one heir, and him, say ex semisse, then the whole as will contain six unciae only ; because no man can die testate as regards part of his goods, and intestate as regards the other part, unless indeed he be a soldier, whose intention in making the will is alone looked to. On the other hand again, a man can divide his. inheritance into as many uticiae as he pleases. (J. 2, 14, 5.) An inheritance was a universal succession ; it included the whole of a man's pro- perty and transferable rights. An heir therefore could not succeed to a part of the property of deceased. It was considered inconsistent with this principle to allow one heir to take ex testamento and another ab intestate. It destroyed the unity of the universal succession. But to this rule the wills of soldiers were an exception. (1.) Each heir is assigned a particular share by the testator. Let us see what the law is if a share is not assigned, and yet no one has been appointed heir without having a share assigned him ; as when three heirs are appointed, each to have a fourth. In thiS' case it is agreed the unassigned share tacitly accrues to each heir in proportion to his share, and is held just as if (in the instance given) they had been appointed by the will heirs each of one-third. Conversely, again, if the shares amount to more than an as, each is tacitly lessened; so that if, for instance, four heirs were appointed in the will, each to have a third, then the shares are to be held just as if each had been appointed in the will heir of one-fourth. (J. 2, 14, 7.) 762 INHERITANCE. A. and B. are named heirs ; A. for one- fourth and B. for one-half. This is the same as giving A. one-third and B. two-thirds of the whole. There is no intestacy as to the remaining fourth. (D. 28, 5, 13, 3.) A. and B. are 'heirs ; A. for 12 and B. for 6 parts. This is equivalent to making A. heir for two-thirds ™d B. for one-third. (D. 28, 5, 13, 4.) A. and B. are together made heirs for -one as, .and C. is made heir for one-half and one-sixth of an as. In this case the testator 'makes "the , be made in the presence of seven witnesses with (he aid of a notary (tabularius).. The testator must openly declare the names, rank, and description of the heirs, and their shares, , as also -the- legacies. The instruc- tions are to be written by the notary all at one sitting in the presence of the witnesses; and signed and- sealed by them and liim in the usual manner. When a notary cannot be found, an eighth person who ca-n write is to take his place. (C. 6, 22, 8.) 3. Wills of persons that oannotread.- A constitution of Justinian applies to persons that cannot read (rustici). It does not apply to the cities and camps of tlie Homan world". Where,, however, few are found ableto read and write, the old custom shall have the force of law;, and where witnesses cannot sign their names, .it is enough if they are present. Jf seven witnesses cannot be found, five,, but not fewer, shall suffice. These witnesses must know the names of the heirs. If any can read and' write, they may sign for the other witnesses in their presence. (C. 6, 23, 31.) 4. Persons suffering from contagious disease. When the testator suffers from contagious disease, seven FORMS OF TESTAMENT. 773 Avitnesses are required; but if any of them are suffering from disease, the necessity of their being all present together is dispensed with. (C. 6, 23, 8.) 5. Parents and Children. A¥hen a parent left his property among his children by an informal wil], his dispositions took effect as a trust (fideicom- missiim). This relief was given by Diocletian and Maximian (0. 3, 36, 16) and Constanfiue (C. 3, 36, 26). Theodosius and Valentinian enacted that if the will refers to others than children, so much of it shall be void, and the property undisposed of go to the children. (C. 6, 23, 21, 1.) IV. — Opening, Publication, and Inspection of Wills. Any judge had power to order a will to be produced and read in public. (0. 6, 32, 1.) The Praetor had jurisdiction to com- pel the witnesses to appear and acknowledge (D. 29, 3, 4) or deny their seals. (D. 29,, 3, 5.) Paul gives the following account of the formalities of opening a will. The witnesses that sealed the will, or the greater part of them, are to be present (if that is impossible, special arrangements were made, 13. 29, 3, 7); and when they have recognise'd their seals, the string is to be broken, and the will opened and read. An opportunity is to be given for-copying it, and thereafter it is to be sealed with an official seal, and deposited in th-e public archives, so that if the copies of it are lost, fresh ones may be liad from the original. -(Panl, Sent. 4, 6, 1.) In towns or municipalities, tlie opening and reading should take place in the Forum or Basilica between the second and tenth honr of the day. This ought to be done in the jDresence of the magistrates and with witnesses of respectability. (Paul, Sent. 4, 6, 2.) Whoever opens a will elsewhere, or in any other manner, is hable to a penalty of 5000 sesterces. (Paul, Sent. 4, 6, 2 A.) The will should be opened within three or five days, if the person having the custody of it is in the same place where the testator died ; if not, within the same time from the date of his return. (Paul, Sent. 4, 6, 3.) Testaments, and all documents that are wont to be notified in the tax-office (censiiale offichim) should be kept there, and not be removed. (C. 6, 23, 18.) Justinus refers to the attempts of the clergy to get jurisdiction over the publication of wills, and to take it away from the Magister Census. It is absurd and scandalous, he says, that they should affect to be skilled in law ; 774 TESTAMENTUM. and he imposed on theni for such offence a penalty of fifty pounds (librae). (0. 1, 3, 41.) A will — the most secret of documents before a testator's death — becomes, after that event, in a manner a public deed. (D. 29, 3, 2, pr.) In any controversy regarding a will, the judge could order the person in whose custody it was (D. 29, 3, 2, 8) to produce it,- in-order that it might be. read and copied. (D. 2, 15, 6; D. 29, 3, 1, l.)i Inspection was not allowed, if there was a doubt as to whether the testator was dead. (D. 29, 3, 2, 4.) Moreover, -the- date of the^ will was not shown, because it might have helped forgers to give a consistent date to a fabricated will purp.orting to revoke the true will. (D. 29, .3, 2, 6.) B/ Disherison.' If certain" persons are not made heil-s, or feSpreSsly disinherited, the will is void. At'the' same time, there was no person that a testator waS' compelled to make his heir. He- could disinherit all, but he must do ' so eS;preSsly. Persons were disinherited either as individuals (iiominatim) or' in a class {inter caeteros). K" pef-son ' is disinherited by name, either in the ' form, " Let Titius, my son, be disinherited {exheres estd) ; " or in the form, " Let my son be disinherited," wi-th his own name not added — if, tliat is,' there is. no.other son. (J.. 2, 13, I ; G.-2, 127.) If seems very strange that, throughout the whole history of Rome, a- rule so arbitrary should have been inflexibly main- tained, and instead of' suffering- the usual fate of the older parts of the- law at the hands of Justinian, should have been made actually more stringent by him. The rule afforded no real pro- tection to the persons in question,- because the testator's power of expressly disinheriting them was unqualified. Testators were bound, as will be shown under the next head, to leave a portion of their property to their children, but they were not bound to make them heirs. Whence ' then so singular and inconvenient a rule — a rule that, owing to the ignorance or forgetfulness of testators, must constantly have defeated their testamentary dispositions % The explanation is clearly given in a quotation from Paul in the Digest (D. 28, 2, 11), and throws an interesting light upon the early Roman ideas of inheritance. Paul observes that there is a sort of copartnership in the family property between a father {paterfamilias) and his children. The very names ( paterfamilias, fHiiisfainilian) show this ; to the familia they stand as one person, towards each other only in the natural relation DISHERISON. 775 of father and son. When, therefore, the father dies, it is not so correct to say that they inherit his property, as that they acquire the free control of their own. Hence, although they are not named heirs by the deceased, they are still owners of the family property. By the old customary law, children could not refuse to be heirs to their father ; the privilege of refusal was bestowed on them by the Prsetors. Was there not a time when also the father could not deprive them of the property? Paul treats the children as being in possession until they are removed. The father has the power to remove them, and clear the ground for the introduction of new heirs ; but unless he exercises that power, they remain, .and there is no place for the heirs intended. The standpoint of the law, then, is this : A man's children are his natural heirs, and in a sense joint-owners of the family estate ; but' either by the XII Tables, or by custom only confirmed by the XII Tables, he acquired the right to eject those heirs, and put in whomsoever he pleased. The testamentary power was thus a usurpation of the- rights of the natural heirs.. It was a power- to set them aside. Whoever, therefore, wished to appoint other- heirs; must first pave the way by disinheriting the natural heirs, -and so leave the inheritance open to the' designated heirs to enter. We shall presently see how far compensation was provided for the natural heirs through the Querela mofficiosi testamenti. In speaking of " natural heirs" and "family,'' it- must be kept in mind that the ancient family as based on the potestas, not that constituted by the tie of' blood, is referred to. The persons that, if not made heirs, must be expressly disinherited, may be considered under four groups : — 1. Those living under the pofifstds or manus of the testator at the time of making his will, and who, if he ■ were at that moment to die intestate, would be his heirs. (Sui hnedes.) (Ulp. Frag. 22, 14.) 2. Th(ise not included in group (1.), that between the time of making his will and his death are under his- potestas or manus, and who by his death intestate would succeed as heirs. This includes children, unborn at the time of his death, but born within ten months afterwards. 3. Emancipated children. . 4. Adopted children. 5. Changes by Justinian; ■- 1. Persons under ihe potestas or manus of the testator at the tinae of making the will, who, if he were then to die intestate, would succeed as heirs. (1.) Filiusfaitiilias. T](i TESTAMENTUM. In order, however, that a will may take effect in any case, it is not enough to observe the rules set forth above. A man that has a son in potestate ought to take care to appoint him heir, or to disinherit him by name ; for if he does not, but passes him over in silence, the will is void. So far is this carried that [as our teachers think] even if the son dies in the lifetime of the father there can be no heir under the will, because the will was bad from the first. (J. 2, 13, pr. ; G. 2, 123.) But the authors of the opposite school thmk otherwise. If, indeed, the son is alive at the time of his father's death, undoubtedly he bars the heirs appointed in the will, and becomes a suns lures by way of intestacy ; and this they own. But if he is cut off before his father's death, the inheritance can, they think, be entered on under the will, as there is no son to bar the way : because, of course, they hold that the will was not made void from the first by the feet that the son v.as passed over. (G.-2, 123.) If a son is disinherited by his father, he ought to be disinherited by name ; for otherwise he cannot be disinherited. (G.-2, 127.) According to the text of Justinian, it appears that the point in dispute was settled in favour of the school of Gains. (2.) Dau_ghters and other clescendante of both sexes under •poteBtas, As regards all the other children, if the testator passes them over the will takes effect. But the persons passed over come in {adcresczint) for a share along with the heirs appointed in the will ; if the latter are sui heredes, for share and share alike ; if they are outsiders, for half the property. For ■instance, if a man appoints say three sons heirs, and passes over a daughter, then the daughter comes in as an heir for one-fourth ; and, besides, the Prastor also protects her in this share, because she would have had it in case of intestacy. If, however, he appoints outsiders his heirs, and passes over a daughter, then the daughter comes in and is made heir of one-half. All we have said of a daughter we shall understand to be said of a grandson, and also of all descendants, whether male or female. (G. 2, 124.) What then ? Although daughters, according to what we have said, with- draw from the heirs appointed in the will one-half only, yet the Praetor promises them bonoruin possessio contrary to the terms of the will {contra tabiilas) ; and on this principle outside heirs are shut off from the whole in- heritance, and become heirs sine re, (G. 2, 125.) The result of this bonorum possessio no doubt would be, that there would be no difference between females and males. But lately the Emperor Antoninus pointed out in a rescript that female suae heredes are not to obtain more by bonoruin -possessio than they would by their right to come in {jus adcrescendi). The like rule holds for emancipated females ; namely this, that what they would have had by their right to come in if they had been suae heredes, that they are to have by means of bonorum possessio. (G. 2, 126.) But descendants, male or female, can be disinherited, not only by name but as ■' all others ; " that is in this way, " Let all others be disinherited." These words are usually thrown in after the appointment of the heir. This is so, however, only by ih^jus civi/e. (G. 2, 12S, as restored.) DISHERISON. ']']'] The Prsetor orders all males, both sons and all others — grandsons that is, and great-grandsons — to be disinherited by name. Female children, how- ever — daughters that is, and granddaughters, and great-granddaughters — maybe disinherited either by name eras included in "all others." (G. 2, 129, as restored.) As regards daughters or other descendants through males, whether male or female, this -rule was not in ancient times observed. But if they were not named as heirs in the will, or disinherited, the will was not thereby invali- dated ; only they were afforded-a right to come in for a fixed share ; more- over, it was not necessary for ascendants to disinherit such persons by name, but it was lawful to do this by including them, among "all others." .(J. 2, 13, Pi--) From the circumstance that the Pr®tor and the'Emperors made the lawon the subject of disherison vary with the law of intestate succession, it is perhaps not improbable that the distinction in sec. ]24 of Gaius throws us back .on a time when the right of daughters to the succession was not so clearly established as the right of sons. It may be an indication of a preference of the male to the female line that had disappeared even.so early as the XII Tables. 2, Persons falling under th-e poteMas or manns after thewill is made, but before the testator's death. In this class is included posthumous children of the testator. (1.) Posthumous children (postumi). These are children of the testator, who if born in his lifetime would have been under his potestas, and entitled to succeed Hm if he died intestate. Posthumous descendants ought to be either appointed heirs or dis- inherited. In one respect they ai'e all on the same footing; namely this, that whether it is a posthumous son or any of the other descendants, male or female, that is passed over, the will takes effect, .but is afterwards broken by the birth of a posthumous, descendant, male or female, and on that ground wholly invalidated. If, therefore, a woman, from whom there is hope of posthumous issue, miscarries, there is nothing to bar the heirs named in the will from entering on the inheritance. Females, indeed, were usually disinherited either Vby name, or as included in "all others," provided only that if they were disinherited as included .in "all others," some legacy should be left them, that they might not seem to be passed xjver through forgetful- ness. But male posthumotts. descendants — a son that is, and so on — could not, it was held, be rightly .disinherited, except ; by name, in this way, namely : — " Let whatever son may be born to me be disinherited." (J. 2, 13, I ; G. 2, 130-132, as restored.) The form for appointing posthumous grandbhildren heirs was introduced by Gallus Aquilius, hence the name — Postumi Aquiliani. (D. 28, 2, 29, pr.) It ran in the follow- ing terms :— " If my son die in my lifetime, then if any grandsonor granddaughter by him is born to me after my death, within ten months of the death of. my son let them be heirs." Ulpian put it simply tliat the safer -way was to disinherit male posthumous children expressly [nominatim). (tJlp. Frag. 22, 22.) (2.) In the same position as posthumous descendants are those that by 778 TESTAMENTUM. succeeding to the position of a suus heres become as if by being bom after- wards sui heredes to their ascendants. Suppose, for instance, a man has a son, and by him a grandson or granddaughter in his potestas, then because the son is, a degree before the other, he alone has the rights of a suus heres, although the grandson also and the granddaughter, his children, are in the samt potestas. If now the son dies in the father's lifetime, or in any other way you please passes out of his potestas, then at once the grandson or granddaughter succeeds to his portion, and they obtain in that way the rights of sui heredes just as if they had been born afterwards. In order, then, that his will may not be broken in that way, the testator must, just as he ought either to appoint as heir or to. disinherit by name the. son himself, that his will may not be wrongly made, so also either appoint as heir or disinherit a grandson or granddaughter by that son. For if not, if the son perchance dies in his lifetime, then' the grandson or granddaughter, by suc- ceeding to his portion just as if horn afterwards, -will break.' the will. This was looked forward to in the lex Junta Vellaea, which points out a way of disinheriting them like that used for posthumous children- [the. males by name, the females either by name oras included under .'' all others," pro- vided only that to the latter some legacy is left;] (J. 2, 13, 2 ; G. 2, 133-134, as restored.) When such grandchildren are born after the making of the will, during the life- time of the testator, they must be expressly disinherited or made heirs. ( D. 28, 2, 29, 12.) The date of the>/erc Junta Vellaea is^uncertain ; usual date-given is A.D.'46. Hence the name Postumi Vellaeani. - 3. Emancipated children. • Emancipated sons it is by the jus civile unnecessary eitherto appoint as heirs or to disinherit ; because they are not sui heredes. But the'PrEetor orders all, females as well as males, if they are not appointed heirs, to be disinherited ; the males [even of a lower'degree] by name, the- females as included among "all others."' If, however, they are neither appointed heirs nor disinherited as we have said above; the Prsetor promises them bonoruni possessio contrary to the terms of the wilt' (J. 2, 13, 3 ; -G. 2, 135.) By the old civil law, succession went to the family as constituted by the ^otestae ; and therefore emancipated children had no part in the inheritance to their parents. But when the Prastors enabled Hhem to succeed, the corollary seems to have been made, that they must be expressly disinherited. This shows that the rule of express disherison was in harmony with public sentiment, otherwise it would never have. been extended to a case where it was not required by the old lavf; 4. Adopted and arrogated children. Adopted children, as long as they are in the potestas of their adopted father, are held to have the same rights as children begotten in lawful mar- riage. They must therefore be either appointed heirs or- disinherited, according to what we have set forth in regard to children by birth. But if emancipated by their adopted father, neither by the jus civile, nor so far as regards the Prstor's edict, are they reckoned among his descendants. On this principle it is that conversely, as far as regards their parent by birth, so long as they are in the family of their adoption they are reckoned DISHERISON. 779 as outsiders, so that it is not necessary either to appoint tliem heirs or to disinherit them. But when emancipated by their adopted father, they then at once come to be in the same case in which they would have been if emancipated by their actual fatlier by birth. (J. 2, 13, 4.) Under the legislation of Justinian, the adopting father, except when he was an ascendant by blood, was not required to make the adopted son heir. 5. Final changes by Jiistinian. Such were the rules brought in by antiquity. But we hold that between males and females in this branch of law there is no difference ; for in the procreation of men, both alike discharge a natural duty. The ancient statute of the XII Tables also called all alike to the succession in cases of intestacy, and this the Praetors afterwards seem to have followed. By a constitution, therefore, we have brought in a simple and uniform law for sons and daughters, and all other descendants through males, not only for those actually born, but also for- the posthumous ; and have provided that all, whether sm. he-reries or emancipated, must be either appointed heirs or disinherited by name. If this is not done, the effect in invahdating the wills of the ascendants, and in taking away the inheritance, is the same as if sons are passed over, whether they are siii heredes or emancipated, or whether they have- been'.already, born, or being still in the womb have been born afterwards. - As regards adopted children also we have brought in a fixed arrangement, which is contained in the constitution we have passed about adopted children.' Q.' 2, ij, 5.) This change faithfully followed the practice of the PriEfcors in accommojatinn' the rules of disherison to the rules of intestate succession. 6. In certain cases natural heirs could be passed without mention.- 1. A mother or a mother's father need not either appoint as heirs or dis- inherit their descendants, but can leave them out. Indeed, silence on the part of a mother, or of her father, and of all ascendants on the mother's side, is as effectual as disinheriting on a father's part. Nor, indeed, need a mother disinherit a son or daughter, or^a mother's father a grandson or granddaughter by his daughter, if he or she is not appointed heir ; and this whether we inquire as to Xhe.jus civile, or as to the edict of the Praetor by which he promises bo7toruin possessio contrary to the terms of the will to descendants that are passed over. Another support, however, is reserved for them, which will be made plain to you a little later. (J. 2, 13, 7.) A woman never had potestas. Her children, therefore, were not sui heredes, and had no right to her property apart from her testament or the Senatus ConsuUum Orphitianum. The same reasoning applies to her father and other ascendants. The reference in the end of the section is to the legitim [lerj Ithna jportio) presently to be described. 2. If a soldier engaged on service makes a will, and does not disinherit his children, either already born or posthumous, by name, but passes them over in silence, and this not in ignorance whether he has children, the impe- rial constitutions provide that his silence shall have the same effect as if he had disinherited the children by name. (J. 2, 13, 6.) 780 testamentum. 0. Legitim {Legitima Portio). A will is void if the parents or children, or, in certain cases, the brothers and sisters, of the testator are disinherited. Under the last head (B.) it appeared that a will was void unless certain persons -were expressly appointed heirs or disin- herited ; under the present head fall to right to legitim from them. (D. 5, 2, 30, pr.) According to the constitution of Constantine (a.d. 319) (C. Th. 2, 19, 1), only consanguineous brothers, and not sisters or uterine brothers (i.e. having one mother, but a different father), had this privilege. In Justinian's Code, sisters have the same privilege, but uterine brothers are still excluded. (C. 3, 28, 27.) Their right also was restricted. The right of children and parents as against each other was absolute against all heirs (D. 5, 2, 31, 1), but the right of consanguineous brothers and sisters was only against heirs of bad character (qui infamiae vel turpitudinis, vd levis notae macula adspergantur). This refers to persons of bad or doubtful reputation, or even to freedmen, unless they have deserved their reward by extraordinary services to the deceased. The preference of such persons to the brothers and sisters of the testator was, as it were, adding insult to injury, and these two things combined enabled them to upset the will. (2.) The amount that must be left. The amount, after the analogy of the lex Falcidia, is one quarter of the amount the complainant would have obtained had the deceased died without making a will. (D. 5, 2, 8, 6.) A man ought to have a fourth in order to disable him from bringing an action to have the will set aside as undutiful. (J. 2, 18, 6.) But in saying a fourth, we must .be^ understood to mean that whether there is one person or more than one allowed to bring this action, to him or them one-fourth may be given; to be divided among them proportionally, each taking one-fourth of his share instead.of the whole. (J. 2, 18, 7.) Justinian altered this proportion in the case of children, and enacted that when a testator had a.ny children not exceeding four,, he must leave to them one third of his entire property ; it they exceeded four, theni one-half. (Nov. 18, 1.) By the old law, each of four children would have got J ab intestato, and been entitled to y'j as legitim, in order to prevent the querela inofficiosi testavienti. "Under the new rule, each gets a fourth of a third — i.e., y\ of the whole. If there are five children, each by the old rule would have got ^ = (i x 5) of the inheritance ; under the new rule they get .j\ = (i X J). If there are six , children, ,by the old rule each would have got Jj = (^ X ^) : by the new rule each gets tu = (4 *< i)' (3.) Satisfaction of legitim. The fourth may be given by way of inheritance, or of legacy, or of a trust, or as a gift in prospect of death, or as a present inUr vivos in those cases only that are mentioned in our constitution, or in the other ways contained in the constitutiojis. (J. 2,. 18, 6.) If a testator made his son sole heir, the querela could not be brought, however much the property might be burdened with debts and legacies ; but: the sou ha:d always the benefit of the Falcidian fourth. (Paul, Sent. i4, 5, 5.) In A.D. 279, Zeno enacted that if a testator had given a dowry (dos) or son's portion (donatio ante nuptias), the amount so settled in marriage should be reckoned as part of their legitim. (C. 3, 28, 29.) There was more doubt as to other gifts made during life. LEGITIM. 783 Ulpian says, if a gift is made expressly in satisfaction of the legitim, it should avail, so far as it goes, to exhaust the duty of the donor ; at all events, he says, it must be considered as part of the inheritance for the purpose of hotchpot {collatio). (D. 5, 2, 25, pr.) If a son accepts money from his fathei-, and agrees, in con- sideration of it, not to demand his legitim, the pact is no bar to his suing for the full amount of his legitim on the death of his father. (Paul, Sent. 4, 5, 8.) If, however, the father has during his life given him money on the express condition that it was to be in part satisfaction of his legitim, and the sou after the father's death has kept the gifts, he cannot upset the will, but may compel the heirs to make up the deficiency, if any exists. (C. 3, 28, 35, 2.) 2. Restrictions on the duty of testator. (1.) Arising from the rtiisconduct df persons to whom the legitim was due. As the duty of the testator was based on a moral claim, it ceased to exist if there was grave misconduct on the part of the persons entitled. For a long time there was no definite standard by which the delinquencies of -children should be judged, as there was at -first no definite share of the inherit- ance they could claim. The question was one for the discretion of the judge, guided by precedents and occasional imperial constitutions. It will suffice, however, to give the causes of disherison as they were finally settled by Justinian. In order to deprive a person of his legitim, it was necessary that the testator should specify in his will for what reason he exercised his power of disherison. These reasons were all connected with a breach of paternal, filial, or fraternal duty. (Nov. 115, 3.) Grounds foe Disinheriting a Child. 1°. Assaulting the parent. 2". Other serious and disgraceful injury. 3". Accusing the parent of any crime, except treason. 4". Associating with dabblers in witchcraft. 5*. Attempting the parent's life by poisoning or otherwise. 6°. Adultery with father's wife or concubine. 7"- Informing against a parent,. and>putting him to great costs. 8°. Refusing to become surety for a parent to procure his release from prison. 9°. Successfully frustrating an attempt pf, a parent to make a will, the parent afterwards being enabled to do so. 10°. Pollowing the profession of comic a,ctor.or gladiator, except when the parent did so too. ' 11°. A daughter prostituting herself, oriinarrying a freedman. without her parent's 784 TESTAMENTUM. consent. But she was excused if a dowry and husband were not provided for her before she was twenty-five. 12°. Neglecting to take charge of an insane parent. 13°. Neglecting, although able, to redeem a parent from captivity. 14°. Heterodoxy of the child : orthodoxy is to be in communion with the Church, and to hold the faith as settled by the Councils- of Nicaea, Constantinople, Ephesus,. and Chalcedou. (Nov. 116,. 3, 14.) ' Ghodnds fob DISIX7IEKITING' Pahbnts. (Nov. 115; 4.) Of the reasons above-given, the following numbers apply reciprocally to offences by parents against children :—Nos. 3, 5,- 6, 9,' 12, 13, 14.. As regards 14, there is a. notable provision in the Code. If the parent is heretical and the child orthodox, the latter is to have its legitim notwithstanding any offence it may commit against the parent. If it is free from offence, then the (rfiild must get as much- as it would have, obtained if its parent haddied intestate. (C. 1, 5,-13.) Geounds poe- Disinhekitins Bkothees and Sistees. (Nov. 22, 47)' pr.). 1. Attempts on the life of the testator by his brother or sister. 2. Accusation of a capital offence. 3. Endeavouring to deprive him of his property. (2.) Special exemption from duty of providing legitim.. A soldier making his will while on service was not obliged' to leave anything to his- parents, children, or brothers, or sisters. (D.5, 2,27, 2;.C.3, 28, 9'; CS, 28,-24.) But, as in the instances already mentioned, the privilege was confined to soldiers on. service, and did not belong to veterans., (D. 5, 2,- 8,. 3.) 3. The effect on a will of a failure to provide the legitim. (1.) When nothing was left to the person entitled to legitim;. and on that ground the will was attacked, the result was to < make the will void and create an intestacy.. (D.'5, 2, 6, 1 ; . C. 3, 28, 30,. 1.) The petitioner recovered the inheritauce,,either as Heres or as Bonormn- Possessor,- ■ACCOYding to the nature of his- title; the gifts of liberty were annulled; the legacies were- made void, and' if they had been paid before the- controversy was raised, the money could be demanded back.. (D. 5, 2, 8,.. 16.) The successful petitioner must admit all that are equally near witii him to the testator in the order of succession,, unless- they refused to join in the suit, or-reuouQced their-claim. , (D 5, 2, 23, 2.) ''■■Bis septem ex-causis exheres films estai — Si patre'm feriat, si maledicat ei ; Camre coriclusum si negligat ; . aut fwriosum ; Griminis accuset ; vd paret insidio/s ; . Si dedevit damnuin. grave ; . si neo ■ab- hoste redemit ; TesiariiK vetet ; se seoietque vmIis ; ■ Si mimos sequitur ; vitietve cubile paternwm.^; Non orthodoxus ; Jilia, si meretrix. LEGITIM. 785 If there was more than one heir named in the will, it might happen that as against some the petitioner might succeed, and against others fail. A mother died, having named two heirs in her will — her daughter Seia for a quarter and a stranger for three-quarters, leaving another daughter, Sempronia, wholly unpro- vided for. Sempronia brings her complaint, and succeeds. What are the rights ol Seia ? Sempronia petitions for and obtains the half of the inheritance, Seia retaining her portion as heir in respect of the other half. This was supposed to conflict with a favourite technical rule, that a person could not die as to part of his property testate, and as to part intestate, and that the universal successors must come in under one right or the other. This rule, however, did not apply to cases like the present ; it was enough if the will provided for the whole inheritance at the time it was made. The neglect to provide the legitim for Sempronia made the will voidable only, not void. (D. 5, 2, 24 ; D. 5, 2, 15, 2 ; D. 5, 2, 19.) In such a case, when a will is only partially set aside, what is the effect on the legacies and gifts of freedom ? The rule, as stated by the Emperor Gordian (A.D. 240), was, that inasmuch as the petitioner succeeded ab intestato, she was released from the legacies (including fideicommissa), but was bound to respect and support the bequests of freedom. (C. 3, 28, 13.) The effect, then, of wholly failing to provide legitim, was to make the will voidable at the instance of the person unprovided for. But this might be prevented by various circumstances. (1°.) Acquiescence by the persons disappointed in the act of the testator. This acquiescence might be explicit (D. 5, 2, 31, 3), or inferred from the acts of the person disappointed. The acceptance of a legacy was conclusive, because unless the will were treated as valid, the legacywas not due. (D. 34, 9, 5, pr.) So if the person buys the inheritance, or any property in it, from the heirs, or hires land from them, or pays them what he owed to the testator, or does any other act recognising their title, he is debarred from upsetting the will. (D. 5, 2, 23, 1 ; C. 3, 28, 8, 1.) Exception. — If a tuior, acting on account of a pupillus actually in his protection {tutela), receives a legacy under his father's will, although nothing has been left the Udor himself by his father, he can none the less bring an action on his own account to have his father's will set aside as undutiful. (J. 2, 18, 4.) Conversely, if on account oi h\% pupillus, to whom nothing has been left, he brings his action, and is overcome, he himself does not lose a legacy left him in the same will. (J. 2, 18, 5.) (2°.) When the disherison is due to ignorance. A mother believing her soldier son to be killed, made no provision for him in her will. He can claim the inheritance ah intestato (D. 5, 2, 27, 4), but according to a decree of Hadrian, only on condition that he pays the legacies, and gives effect to the bequests of freedom. (D. 5, 2, 28.) (3°.) If the heir does not defend the inheritance when it is attacked by a person claiming legitim, and judgment goes by default, the legacies and bequests of freedom are not affected. The heir alone, against whom the action is brought, is hound by it. (D. 5, 2, 17, 1 ; D. 49, 1, 14, 1.) (4°. ) If on a suit being brought, a compromise (transactio) is made with the heirs, the will remains valid, and the legacies must be paid, and bequests of freedom carried out. (D. 5, 2,29, 2.) 9, D 786 TESTAMENTUM. (2.) If the testator leaves something, but not enough, to satisfy the legitim. All this must be taken to apply to those cases only where nothing at all has been left in the testator's will. Our constitution brought this in out of respect to nature. But if any share of the inheritance, however small, or anything is left them, then the complaint that the will is undutiful {de in- officioso querela) is at rest ; only what they lack must be made up to them to the amount of a fourth of their legal portion, although no clause was thrown in directing it to be made up at the discretion of a good man. (J. 2, i8, 3.) At first the law was very strict, and even when the heirs included some of the testator's children, the child left out was not compelled to ask the amount to be made up, but could upset the will. (Paul, Sent. 4, 5, 7.) Previous to the change made by Justinian (C. 3, 28, 30, pr.), a clause was usually inserted in wills, that if the provi- sion for the legitim should prove insufficient, the heirs should increase it to the proper amount [si quid minus foret, ei suppUretur). The effect was, that as the person could sue for a supplement under this clause, he could not resort to the qucrda inofficiosi testamenti, because that remedy was allowed only when no other was avail- able. The enactment of Justinian made that clause a rule for all wills, so that whether the clause was inserted or not, if anything was left in satisfaction of legitim, it prevented the will being made void. (C. 3, 28, 36, pr.) The will was to be supported, but the legitim must be satisfied. D. Appointment and Substitution of Heirs. The essential object of a will was to appoint au heir. If no legacies were given, and there were no persons to disinherit, a will might consist of no more than five words, " Be Lucius Titius my heir " {Lucius Titiiis mild lieres esto) ; or if it were a nuncupative will, in presence of the heir designated, three words sufficed, " Be Lucius heir " (Lucius heres esto). (D. 28, 5, 1, 1.) The appointment of heirs will be considered under four heads. 1. Simple appointment of heirs. {Institutio heredum.) 2. Substitution of heirs to take in default of persons nominated. (Substitutio vulgaris.) 3. Substitution of heirs to a child under puberty. {Suhstitutio pupillaris.) 4. Substitution of heirs to insane persons. (Substitutio exemplaris.) L Appointment of Heirs (Listitutio Jieredum). 1. The proper part of the will for the appointment of the heirs is immediately after the disherison of those requiring to be disinherited. (D. 28, 5, 1, pr.) If a legacy were given before the appointment of the heirs, it was void, because it depended upon the designation of the heirs (Ulp. Frag. 24, 15) ; and APPOINTMENT AND SUBSTITUTION. 787. according to the SabiiiiaDS, but not the Proculians, even the nomination of tutores was void, although that took nothing away from the inheritance. (Paul, Sent. 3, 6, 2.) But Justinian altered the law upon this point, and declared that a will should be valid and perfect although the appointment of the heirs did not precede the giving of legacies. (See Legacy, Third Period.) 2. The form of appointment. It is not, however, enough, in order that the will may take efifect under the JUS civile, to observe all we have set forth above as to the sale of 'Ai^ familia and the witnesses, and the formal declaration. Before all else, we must care- fully inquire whether the heir has been appointed with the customary formalities. If he has been appointed in any other way, the fact that the testator has sold his familia, has employed the witnesses, and has formally declared the will in the way we have stated above, is of no avail. The formal mode of appointment is this, " Let Titius be heir ; " but the form, " I order that Titius be heir," seems now to be approved. The form, however, " I wish Titius to be heir," is not approved ; and the forms, " I appoint him heir" {Titium heredeni institiio) ; and again, " I make him heir" {heredem facio), most disapprove. (G. 2, 11 5-1 17.) In A.D. 339, Constantius and Constans enacted that whatever the form of words used, the appointment of heirs should be valid if the intention of the testator could be clearly ascertained. (C. 6, 23, 15.) But the appointment must be in express language ; it could not be inferred from the testator throwing upon a person duties belonging to the heir, as to pay debts or legacies. (D. 28, 5, 65.) 3. An heir could not be appointed for specific articles or property of the testator {ex certa re). An heir Avas a universal successor, but to make him successor to specific articles was to convert him into a singular successor. Such an appointment did not, however, invalidate the will ; the clause specifying the articles was rejected as superfluous, as if it had never been written. (D. 28, 5, 1, 4.) But if there were several heirs, such an appointment was treated as a pie-legacy (praelegatum) ; i.e., as something to be taken out of the inheritance before it was divided among the heirs, thus putting the recipient in the position of a legatee, and subjecting him to a deduction of the Falcidian fourth. A person appointed a freedman heir of his maternal property in Pannonia, and Titius to be heir of his paternal property in Syria. This is construed as an equal division, but in a partition the judge will follow the wishes of the testator, having regard to the rights of each heir to a Falcidian fourth. (D. 28, 5, 78, pr. ) Two heirs are named, one to the Cornelian estate, and the other to the Libyan. One of the properties is three-fourths, the other one-fourth of the wealth of the deceased. The two heirs wiE take equal shares, as being appointed without any parts assigned, but on a partition each will be entitled to the estate specifically left him. (D. 28, 6, 35, pr.) As, however, they are equal in law, each must pay one-half of the 788 TESTAMENTUM. debts ; and if the debts exhaust all that is left to one, then the appointment is void. Otherwise, the things bequeathed are subject to a deduction of a Falcidian fourth, as in the case of legacies. (D. 28, 5, 35, 1.) By a constitution of Justinian, if some of the heirs were appointed for particular things, and others for an ahquot part of the inheritance, or without the addition of any shares, the former were to be regarded simply as legatees, and those named with an aliquot share, or no share of the inheritance, were alone to be heirs. (C. 6, 24, 13.) 4. An heir cannot be appointed from a fixed time or for a fixed time,^ as " five years after I die," or " from such and such kalends," or " until such and such kalends let him be heir." The addition of the day must, it is held, be regarded as idle ; and everything is just as if the heir had been appointed unconditionally. (J. 2, 14, 9.) 5. Conditional appointment. An heir can be appointed either simply {pure) or conditionally. (J. 2, H, 9-) An impossible condition in the appointment of heirs, and in legacies, as also in trusts and grants of freedom, is regarded as if it had never been written {pro non scripto). (J. 2, 14, 10.) If more conditions than one are appended to the appointment, then if they are put jointly — as, for instance, " If that and that are done " — all must be obeyed ; but if alternatively — as, for instance, " If that or that is done" — it is enough to comply with any one at pleasure. (J. 2, 14, 11.) The subject of conditions will be discussed under Legacy. II. Common Substitution (Vulgaris suhstitutio). 1. Substitution of a single heir for a single nominated heir. Sometimes we make two or more degrees of heirs, thus : — " Let Lucius Titius be my heir ; and decide within the first hundred days after you know and can. Unless you so decide, be disinherited. Then let Maevius be my heir, and decide within the hundred days," ^ and so on. We can go on to make as many substitutes as we please. (G. 2, 174.) A man can in his will make several degrees of heirs ; as, for instance, "If he is not to be heir, let such and such another be heir." Then the testator may go on to substitute as many as he pleases, and to appoint, as a last resort, a slave necessary heir. (J. 2, 15, pr.) If then the heir appointed in the first degree decides to enter on the in- heritance, he becomes heir, and the substitute is shut out. If he does not decide, he is set aside, even although he acts as heir {pro herede), and into his place the substitute next comes ; and so on if there are several degrees in each singly on the like principle. But if a time to decide {cretio) is given 1 Lucius Titius heres esto, cernitoque in diebus (centum) proximis, quibus scies poterisque. Quodni ita creveris, exheres esto. Turn Maevius heres esto cernitoque in diebus centum. SUBSTITUTIO VULGARIS. 789 without words to disinherit, that is as follows . " If you do not decide, then let Publius Maevius be my heir," the effect is found to be quite different ; because if the first omits to decide, but acts as heir, the substitute is ad- mitted to a share, and both become heirs with equal shares. If, however, he neither decides nor acts as heir, he is undoubtedly set aside altogether, and the substitute succeeds to the whole inheritance. But Sabinus held that so long as the first can decide, and in that way become heir, even although he has not acted as heir, the substitute is not let in : whereas once the time for deciding has come to an end, though acting as an heir, he lets in the substitute. But by the other school it was held that even if some of the time for deciding still remained over, yet by acting as heir he let in the substitute for a share, and could no longer turn back to decide. (G. 2, 176-178.) A will, even after the death of the testator, did not operate as an investitive fact of the hereditas ; it was simply a formal offer of the inheritance which, until it was accepted, had no effect. Hence a formal acceptance was necessary in order to exclude the substitute. As soon as the person named became heir, the possibility of the sub- stitute succeeding was destroyed. (C. 6, 26, 5 ; D. 29, 2, 7, pr.) The passage from Gaius has no place in the later law, but its full explanation must be reserved for a later stage. Exception. — If a testator thinks another man's slave is a. pater/atniHas, and appoints him his heir, or if he does not become heir, names IVIaevius as his substitute ; and if that slave, by his master's orders, enters on the inherit- ance, Maevius is let in for a share ; for the words, " If he is not to be heir," used of a man that the testator knows to be subject to another's power, are taken thus : — " If he neither is to be heir nor makes any one else heir." But when they are used of a man that the testator thinks a paterfamilias, the meaning is : — " If he has not acquired the inheritance for himself, or for the person to whose power he has afterwards come to be subject." This was settled by Tiberius Caesar in regard to his own slave Parthenius. (J. 2, 15:4-) Two distinct objects were served by substitiition. (1.) It provided against a failure of the will through the death or refusal of the heir appointed ; and by adding on successive substitutes, and finally substituting a slave, the risk of an in- testacy was greatly reduced. (2.) During the whole of the Empire, until Justinian, the laws of escheat {leges caducariae) were in force, and in certain cases the shares of deceased heirs went to the Exchequer instead of to the co-heirs. (Seep. 758.) This danger was entirely removed by reciprocal substitutioa of the co-heirs. Thus, if A. and B. are named heirs, and A. is substituted in default of B., or B. in default of A., there is no opportunity for the Exchequer to come in. But although sub- stitution had the same general effect as the jus accrescendi, some difference existed between them. (1.) The jus accrescendi took effect without the consent, and even in opposition to 790 TESTAMENTUM. the wishes, of the heir ; but a substitute need not accept any new share unless he pleased. (2.) The representatives of a deceased heir, succeeding in his place, took by the^'us accrescendi ; but if several co-heirs are reciprocally substituted, the shares of those that refuse go wholly to the surviving heirs. (D. 28, 6, 45, 1.) (3;) A difference emerged when there were several co-heirs. (Seep. 758.) 2. Substitution when more than one heir is nominated. We may lawfully name as substitutes either one or more, and that either in the place of one, or again in the place of more than one. (G. 2, 175.) Several may be named as substitutes in the place of one, or one in the place of several, or one in the place of one ; or the heirs appointed may be made substitutes to one another in turn. (J. 2, 15, i.) X. appoints A. as heir for 3-, B. for ^ ; and if B. fails to enter as heir, then C. is to take f . B. does not enter. C. gets \ as B. 's substitute, and J as being himself appointed. (D. 28, 5, 9, 15.) X. appoints A. as heir for ^, B. for 4 ; and if A. does not become heir, then C. to have j. Suppose A. enters ; A. and B. get each J, and C. is excluded. If A. does not enter, how much should C. get ? The answer given is, that B. gets 6, and C. gets 9 parts ; the as being taken as equal to 15 ounces. Their shares stand to each other as— i : J : : I : I : : 2 : 3 : : 6 : 9. (D. 28, 5, 15, 1.) In this case, therefore, C. takes 6 parts as B.'s substitute, and 3 parts as a nominee himself. (D. 28, 5, 16.) (1.) A substitute of a substitute is a substitute to the heir- appointed. (Substitutus substituto est substitutus instituto.) But if an heir is appointed, and a co-heir is made his substitute, and then some third person made substitute to both, the late Emperors Severus and Antoninus decided by a rescript that no distinction should be made, but that the substitute should be let in for both shares. (J. 2, 15, 3.) Titius and Gaius are co-heirs. Titius is substitute for Gaius, and Sempronius for Titius. Titius dies before the testator, and Gaius refuses. Manifestly Sempronius will get the share of Titius ; but will he get the share of Gaius, to whom he was not substituted ? If Gaius died first, and Titius became substitute, he acquired a right to the whole, and of cour.=;e Sempronius had the same right. But when the share of Gaius never in any way acerned to Titius, it was difiBcult to see how it could pass from him to Sempronius. This difficulty was removed by the rule stated in the text. (D. 28, 6, 27.) A. and B. are co-heirs. B. is substitute to A. C. is substitute to B. B. never took, nor A. C. gets the whole. (2.) Reciprocal substitution established a species of jus ac- crescendi, notwithstanding the lex Julia et Papia Poppaea. A., B., C, D. are nominated hell's, and reciprocally substituted (eosque omnes invicem. siibstituo). A., B., and C. enter on the inheritance. D. refuses; afterwards C. dies. The share of D. goes to A., E., and 0. ; then C.'s share goes to A. and B., and not to C.'s heirs. (D. 28, 6, 23.) X. appointed Titius and his son heirs, and substituted them reciprocally. Then he added as heirs Gaius, Marcus, and Maevius, and added, "1 substitute all recipro- cally." Held that this clause did not apply to father and son, who were specially substituted the one for the other. (D. 28, 6, 41, fi.) SUBSTITUTIO PUPILLARIS. 791 If heirs are appointed with unequal shares, and made substitutes to one another in turn, without any mention therein of shares, the testator is held to have given them the same shares as substitutes that he gave them in the appointment. So a rescript of the late Emperor Pius settled. (J. 2, 1 5, 2.) A. is heir for 1 ounce, B. for 8, and C. for J as. C. repudiates. C.'s J is regarded as made up of 9 parts, of which 1 accrues to A., and 8 to B., tmleas an intention to the contrary is clearly expressed by the testator. (D. 28, 6, 24) III. Substitution for children (Substitutio Fupillaris). 1. Difference between common and pupillary substitution. To his descendants under puberty that a man has in his potestas, not only can he name a substitute, as in the manner above stated — that is, so that if he has not heirs the other shall be his heir ; but in one respect he can go further, so that if he has heirs, and they die while still under puberty, some one shall be their heir. For instance, a man may speak thus : — " Let Titius my son be my heir. If my son shall not be my heir, or if he shall be my heir, and dies before he comes to be his own tutor" (that is, comes to puberty), "then let Seius be my heir."' Now, in this case, if the son is not heir, the sub- stitute becomes the father's heir. But if the son is heir, and dies before puberty, then the substitute becomes the son's heir. For usage has appointed that, when descendants are of such an age as to be unable to malce a will for themselves, their ascendants may make it for them. (J. 2, 16, pr. ; G. 2, 179-180.) In a substitution to a.piipillus therefore {piipillaris substitutio), arranged after the fashion already stated, there are in a way two wills — one the father's, and the other the son's — ^just as if the son had appointed an heir to himself. At all events, assuredly the one will governs two cases ; that is, two inheritances. (J. 2, 16, 2 ; G. 2, 180.) No one can make a will for his descendants, unless he makes one for him- self too. The will for the pupillus is indeed a part of the father's will, and follows upon it ; and so entirely, that if the father's will cannot take effect, not even the son's can. (J. 2, 16, 5.) 2. Such substitution can be made only by a paterfamilias to children under his potestas, and the substitution cannot be post- poned beyond the age of puberty. Hence no pupillary substitu- tion can be made for emancipated children. (D. 28, 6, 2, pr.) The children must be under the potestas both at the time of making the will and of the testator's death. (D. 28, 6, 41, 2.) To a male, therefore, up to fourteen, a substitute can be appointed ; to a female up to twelve. If this time goes by, the appointment of a substitute vanishes away. (J. 2, 16, 8.) But the substitution might be for a less period, until the child reached ten, and another substitute might take thenceforward to fourteen. (D. 28, 6, 38, 1 ; D. 28, 6, 43, 1.) ' Titius filius meus heres mihi esio : sifitius mens heres r.tihi Twn erit, sive keres erit et prius moviatur^ quam in suam tutetam venerit tunc Sems heres esto. 792 TESTAMENTUM. Not only to the descendants under puberty that they appoint their heirs can ascendants name substitutes, so that if the descendants become their heirs, and die before the age of puberty, their heir may be the man the ascendants wish ; but also to those they disinherit. Therefore, in that case whatever the pttpillus acquires by inheritances, or legacies, or gifts of near kinsfolk and friends, all belongs to the substitute. (J. 2, i6, 4 ; G. 2, 182.) All we have said about naming substitutes to descendants under puberty, whether they are appointed heirs or disinherited, we must understand like- wise of posthumous children. (J. 2, 16, 4; G. 2, 183.) To an outsider, or to a son over puberty that is appointed heir, no one can name a substitute, so that if the outsider or grown-up son becomes heir, and dies within a fixed time, that other may be his heir. This only is allowed : the testator may bind him by a trust to give up to another his in- heritance, in whole or in part. The nature of this right we will lay down in its proper place. (J. 2, 16, 9 ; G. 2, 1S4.) The father cannot make the substitute to his child heir to his own property and not also to the child's ; such a substitution would be against the rule that an heir cannot be appointed to definite things. (D. 28, 6, 41, 8.) Hence the substitute must be heir not only to the father's inheritance, but also to the child's. (D. 28, 6, 10, 5.) The exceptions are not important. (D. 28, 6, 16, pr.) Conversely, the substitute to a child cannot take the child's property without the father's (D. 28, 6, 10, 2), nor can an heir under the father's will, who is also substituted for the child, enter on the father's inheritance, without also accepting the child's. (D. 28, 6, 10, 3.) If the child did not enter on the father's inheritance, the better opinion was that the sub- stitute need not take both (D. 29, 2, 42 ; D. 28, 6, 12) ; but from this opinion some jurists dissented. (D. 42, 5, 28.) It is usual to guard the pupillus from the risk of plots against him, after the parent's death, in this manner : The common way to appoint a sub- stitute is to do it openly {vulgaris substitutio), that is, in the place in which we appoint the ptipillus heir : for it calls the substitute to the inheritance only if \ht ptipillus never becomes heir at ail. This happens when he dies in the lifetime of the parent. In that case we cannot suspect the substitute of any wrong-doing ; since, while the testator lives, no one knows anything that is written in the will. But the other appointment of a substitute by which we call one in even although the pupillus has become heir if he dies under puberty, we write on tablets lower down. These tablets we seal up with a thread and with wax of their own ; and in the earlier tablets we provide that the lower tablets shall not be opened while our son is still alive and under puberty. But it is far safer to have both kinds of appointment sealed up apart in tablets lower down. For if they are (not) sealed up and set apart as we have said, it can be understood from the earlier that in the other too the same person is the substitute. (G. 2, 181.) But if anyone is so apprehensive as to fear that his son while still a pupillus may, from the fact that a substitute to him has been openly ap- pointed, be exposed after his death to the risk of plots, he ought to proceed thus : — The appointment of a substitute in the common way ought to be made openly and in the first part of the will ; but the other appointment calling in a substitute in case the pupillus should become heir and die under the age of puberty, ought to be written separately, and in the lower part of the will. This latter part,, then, he ought to seal up with a thread and with wax of its own ; SUBSTITUTIO EXEMPLARIS. 793 and in the earlier part of tlie will he ought to provide that the lower tablets are not to be opened while his son is alive and still under the age of puberty. In any case this is plain, that the appointment of a substitute to a son under puberty takes effect none the less because it is written in the same tablet in which the testator appoints him his heir, dangerous though this may be to X\xt. pupillus. (J. 2, 1 6, 3.) So entirely were the son's and father's wills held to be one that the Praetor was satisfied with seven seals for both. (D. 28, 6, 20, pr.) But the father's will might be in writing and the son's oral, or the father's oral and the son's in writing. (D. 28, 6, 20, 1.) The father's will must, however, precede the pupillary substitution in order of time (D. 28, 6, 16, 1), even when they are made at the same sitting. (D. 28, 6, 20, pr.) Moreover, the father ought to appoint his own heirs first, before substituting for his son. (D. 28, 6, 2, 4.) Eitherto each descendant singly, or to the one that shall die last under the age of puberty, a substitute can be appointed : to each singly if he wishes none of them to die intestate ; to the last if he wishes the right of regular inheritance to be kept unbroken among them. (J. 2, 16, 6.) A substitute to a child under puberty may be appointed either by name, as " Titius," or generally as " whoever is to be my heir." These latter words call in as substitutes, on the death of the son under puberty, all that have been appointed heirs in the will, and have become heirs each to the share in which he was made heir. (J. 2, 16, 7.) The form, "Whoever shall be my heir, let him be heir to my son while under the age of puberty," is called by the commentators " 'brevUoqua" It was construed to apply only to the testamentary heirs appointed by the will. (D. 28, 6, 8, 1.) X. appointed heirs, Titius, and Gaius X.'s son, a child. Maevius was substituted for Titius, and " Whoever under the above writing shall be my heir " was substituted for Gaius. Titius did not enter. Maevius entered. Then Gaius died. Maevius got the share of Gaius as a pupillary substitute. (D. 28, 6, 34, 1.) X. appointed heirs, his son Titius a child, and Stichus a slave of Marcus. He added a clause, " vVhoever is heir to me. let the same be heir to my son." Stichus entered by command of his master. Held that Marcus could not be substitute for Titius, because his name did not appear as heir in the will. (D. 28, G, 3.) X. appointed heirs his two sons under puberty, substituting them for each other, and, for the survivor of them, Titius. The true construction of the clause was that the two sons were substitutes in the first degree, and only in default of both did Titius come in as a substitute in the second degree. (D. 28, 6, 25.) IV. Substitution for the insane — Substituiio Exemplaris. Stirred up by this principle, we have gone on to place in our Code a con- stitution providing that if ascendants have children, or grandchildren, or great-grandchildren, of whatever sex or degree, that are of unsound mind, then they may lawfully, although these descendants are over puberty, appoint as substitutes any determinate persons, after the example of the appointment of substitutes to pupilK. If, however, the descendants come again to their senses, then this appointment of a substitute is invalidated. This also follows the example in the case of the pupil lus j for there too, after he has grown up, the appointment is invalidated. (J. 2, 16, 1.) Before Justinian, a parent of a dumb or insane son or 794 TESTAMENTUM. daughter could, even after they had reached puberty, make a substitute for them on leave being obtained by special petition to the Emperor. This substitution lasted until the disability ■was removed. (D. 28, 6, 43, pr.) Justinian allowed this privilege in all cases without any petition, subject to the following rules (C. 6, 26, 9) :— 1. A parent of either sex may substitute to any insane child. 2. Such parent could not do so without leaving to the child its legitim (legitima portio). 3. If the insane person has any children, these must be sub- stituted ; and failing them, the children of the testator. E. Incapacity {Testament/ factio). If, therefore, we are asking whether a will can take effect, we ought, first of all, to observe whether the maker had testamenti factio (capacity to take any part in making a will or any benefit under a will). If he had, then next we must inquire whether he made his will according to the rule of the civil law — unless, indeed, he is a soldier ; for they, because of their excessive want of skill, are, as we have said, allowed to make a will in any way they please, or in any way they can. (G. 2, 1 14.) In the case of outside heirs this rule is observed, that there must be testamenti /actio with them, whether they themselves are appointed heirs, or persons in their potestas. At two times this is looked into — at the time of making the will, in order that the appointment may stand ; and at the time of the testator's death, that it may be carried out. More than this, there ought to be testamenti factio with the heir at the time he enters on the in- heritance as well, and that whether his appointment is simple or conditional. For the heir's rights ought to be looked into at that time above all at which he acquires the inheritance. But as for the time between making the will and the testator's death, or the fulfilment of the condition, no change of status in that interval harms the rights of the heir ; because, as we have said, there are three times (only) to be looked to. (J. 2, 19, 4.) Testamenti factio seems to belong not only to him that can make a will, but to him that under another's will can take himself, or can acquire for another, although he cannot make a will. A madman, therefore, a. dumb man, a posthumous child, an infant, a.filiusfamilias, and another's slave, are said to have testame7iti factio. They cannot, indeed, make a will, but under a will they can acquire either for themselves or for another. (J. 2, 19,4.) To make a will valid, the testator, witnesses, and heirs must be capable of holding their several parts ; they must have with each other testamenti factio. (Ulp. Era". 20, 8.) I. Incapacity of Testator. 1. The loss of freedom. 1°. Slaves cannot make wills, except slaves belonging to the TESTAMENT! FACTIO. 795 State (servus publicus Populi Romani). These could leave half of their property (peculium) by will. (Ulp. Frag. 20, 16.) 2°. The will of a man in the hands of the enemy, made there, does not take effect although he comes back. But a will made while he was in the State takes effect, if he comes back, by the Jus postliminit j or if he dies there, by the lex Cornelia. (J. 2, I2, 5.) Captureby brigands did not take away a man's legal right to freedom, and there- fore did not affect his testamentary capacity. (D. 28, 1, 13, pr.) (See p. 169.) 2. The loss of citizenship. 1°. A Latiniis Junianus was made incapable by the express provision of the lex Junia Noj'bana (Ulp. Frag. 20, 14) ; unless he acquired the Jus Quirifium within 100 days. (Ulp. Frag. 17, 1.) 2°. The dedititii could not make wills ; not as Roman citizens, for they were aliens iperegrini) ; and not as aliens, for they were not members of any other State. An alien makes a will according to the law of his own country. (Ulp. Frag. 20, 14.) 3°. Hostages could not make wills (D. 28, 1, 11), and on their death their property went to the Exchequer. (D. 49, 14, 31.) 4°. The old punishment of interdictio aqua et igni vitiated any existing will, and created an incapacity to make another. (D. 28, 1, 8, 1.) The punishment of deporta- tion, which superseded it, had the same effect (D. 28, 1, 8, 2) ; but not rdegatio, as the latter did not deprive the offender of his citizenship. (D. 28, 1, 8, 3.) 5°. If a person convicted of a capital crime dies pending an appeal, his will is valid, unless he has committed suicide to escape punishment. (D. 28, 1, 13, 2 ; C. 6, 22, 2.) 3. Incapacity arising from the ancient forms of wills. 1°. Women could not make wills so long as these were made in the ComitiaCalata; but they could make the will per aes et libram, with the consent of their tutores. (Paul, Sent. 3, 4, 1.) We must observe, besides, that if a woman in tutela makes a will, she ought to make it by authority of her tutor, or it will be void by the jus civile. (G. 2, 118.) In old times, in order to make a will, a fiduciaria coemptio used to take place. At that time, indeed, women (with certain exceptions) had not the right of making a will in any other way than by making a coemptio, then being reconveyed, and lastly manumitted. This necessity for a coemptio, however, at the instance of the late Emperor Hadrian, the Senate remitted ; and thus women, they resolved, have the same rights as if they had made a coemptio. (G. i, 115 A.) But the Senate, at the instance of the late Emperor Hadrian, as we have pointed out above, allowed women, even without making a coemptio, to make a will, if only they were at the time above twelve years of age, and had the authority of their tutor. This was the way in which those not freed from tutela ought to make a will. (G. 2, 112, as restored.) Women, therefore, seem to be in a better position than men. A man under fourteen cannot make a will, even although he wishes to, and has the authority of his tutor. But a woman, after her twelfth year, obtains the right of making a will with the authority of her tutor. (G. 2, 1 1 3.) 796 TESTAMENTUM, Gaius starts a qnestion to which he is unable to give a decided answer: Can a woman make a Prsetorian will with- out the authority of her tutor ? This certainly refers to men's wills, and also to those of women that have made wills that are void because, for instance, they have not sold the/a/ni/ia, or have not spoken the words of the formal declaration. But whether this constitution refers also to those wills of women that they have made without authority from a iuiar, we shall see. (G. 2, 121.) We are speaking, however, not of women in the statutory tutela of ascend- ants or of patrons, but of those that have tutored of the other kind, whom they can force, even against their will, to give their authority ; whereas in the former case it is well known that an ascendant or a patron cannot be set aside by a will made without his authority. (G. 2, 122.) In the time of Justinian, the testamentary capacity of women was unrestricted, the tutela of women having fallen into desuetude. 2°. The dumb, because they could not pronounce the words of the nuncupatio, and the deaf, because they could not hear the voice of the famUiae CTuptor, could not make a will per aes et libram. This incapacity disappeared when wills were made in writing. (XJlp. Prag. 20, 13.) A dumb man, again, or a deaf man, cannot always make a will. But in speaking of a deaf man, we mean a man that does not hear at all, not a man that is slow of hearing. A dumb man, too, is understood to be a man that cannot speak out at all, not a man that speaks slowly. But often men, even of literary education and learning, by various mishaps, lose the power both of hearing and of speaking. To their aid, too, therefore, our con- stitution comes to enable them in certain cases and in certain ways accord- ing to its rules to make a will, and to do all other acts that are allowed them. If, however, a man, after making his will, by ill-health or any other mishap, comes to be dumb or deaf, his will none the less remains valid. (J. 2, 12, 3.) Exception. — Nay, even though dumb and deaf, a soldier can make a will. (J. 2, 11,2.) 3°. A blind man cannot make a will except by observing the rules that a statute of the late Emperor Justin my father brought in. (J. 2, 12, 4.) 4. Persons that could not be owners could not make wills. It is not every one that can lawfully make a will. To begin with, persons subject to the power of another have not the right of making a will. So entirely does this hold, that even although their ascendants allow them, they cannot any the more make a rightful will. To this there are exceptions that we have already enumerated, and especially soldiers in the potestas of their ascendants, who are allowed by the imperial constitutions to make a will of all they have acquired in camp. At first, indeed, this was granted to those in service only, by the authority both of the late Emperor Augustus and of Nerva, as also of that best Emperor Trajan. But afterwards, by a docu- ment under the hand of the late Emperor Hadrian, even discharged soldiers — veterans, that is— were allowed to. If, therefore, they make a will about their castrense peculium (camp property of their own), it will belong to the man they leave as heir. But if they die intestate, with no descendants of TESTAMENTI FACTIO. 797 brothers surviving, it will belong to their ascendants by the law common to all. Hence we can understand that the goods a soldier in his father's potestas has acquired in camp cannot be taken away by the father himself, nor can the father's creditors sell them, or otherwise disturb them, nor on his father's death do they belong to the soldier's brothers in common with himself, but all that he has acquired in camp is exclusively his own. This is so, although by the/aj civile 'Cne. peculia of all persons in the potestas of their ascendants are reckoned among the goods of their ascendants, just as the peculia of slaves are reckoned among the goods of their masters. To this, of course, there are exceptions under the sacred constitutions, and especially ours ; and certain things on different grounds are not acquired. Except these, then, that have a castrense peculium or a quasi castrense, no other Jiliusfamilias can make a will ; or if he does, it is void, although he becomes his own master before he dies. (J. 2, 12, pr.) It must be known, however, that after the example of the castrense pectc- lium both earlier laws and the imperial constitutions have given certain per- sons a quasi-castrense pecuUum, and have allowed certain persons to dispose of this by will while still living in poiestate. This our constitution extends more widely, allowing all to make a will in regard to such a peculium only, but under the law common to all. By looking carefully through the tenor of this constitution, a man can easily learn everything relating to the law just spoken of. (J. 2, 1 1 , 6.) 5. Owners that cannot alienate cannot make wills. 1°. Madmen, again, because they want sense, cannot make a will. It is immaterial that the person under puberty comes to riper years, or that the madman afterwards becomes master of his senses before he dies. But if madmen make a will during a break in their madness, they are held to make it rightly. Undoubtedly, too, a will made before madness takes effect ; for neither wills rightly made, nor any other affairs rightly carried out, are annulled by the fact that madness comes on afterwards. (J. 2, 12, i.) But not old age or bodily disease, if they do not impair the mind. (C. 6, 22, 3.) 2°. Persons under puberty also cannot make a will, because their minds have no judgment. (J. 2, 12, i.) 3°. A prodigal, again, that has been interdicted from managing his goods, cannot make a will. But a will made before the interdict is valid. (J. 2, 12, 2.) 6. Incapacity to make a will was in certain cases a form of punishment. 1°. Libellers (6b carmen famosum damnati). (D. 28, 1, 18, 1.) 2°. Manichaeans and Apostates. (C. 1, 5, 4.) Other heretics could make wills, but must leave all their property to their children, if orthodox. (C. 1, 5, 13, 1.) 7. Persons whose capacity was uncertain could not make a valid will. (D. 28, 1, 15.) A slave is manumitted in the will of his master, but he does not know that the master is dead, and that an heir has taken under the wiO. Hence, if he makes a will, it is void, although both facts exist. (D. 28, 1, li.) 798 TESTAMENTUM. A paterfamilias has gone abroad, but his son does not know that he is dead. Until he gets that information, he cannot make a will. (TJlp. Frag. 20, 11.) II. Incapacity of Heirs. There was a wide difference between the grounds of incapa- city in making wills and in taking under wills. It is the difference between those that can dispose of property and those that may receive it. 1. Besides, soldiers are allowed to appoint aliens and Latins their heirs, or to leave them a legacy ; although in any other case aliens are forbidden by the principles of the jus civile, Latins by the lex Junia, to take an inherit- ance and legacies. (G. 1, 1 10.) Dedititii {TJlp. Frag. 22, 2) and deported prisoners could not be heirs. (C. 6, 24, 1. ) 2. Some classes were specially disabled. 1°. Women by the lex Voconia (about B.C. 168). This law forbade a testator registered in the census for 100,000 sesterces making a woman his heir. (G. 2, 274.) The prohibition was evaded by resort to trusts {Jidei- commissa), and the law itself fell into desuetude. Vestal yirgins could not be heirs, according to Labeo. (Aul. Gell. 1, 12, 18.) 2°. The unmarried, too, who are forbidden by the lex fulia to take an inheritance and legacies, and the orbi also, that is the childless, whom the lex Papia forbids to take more than a half of an inheritance and of legacies, under a soldier's will take the entire amount. (G. 2, iii.) The lex Julia, here referred to, is supposed to be the lex Julia de mariiandis or- dinibus. (a.d. 4, or B.C. 18, p. 81.) The lex Julia et Pappia Poppiea is an amending Act, A.D. 9. A person is within the meaning of the lex Julia if, after attaining (pro- bably) twenty years of age, he remains unmarried, if a man, till sixty, and if a woman, till fifty. (XJlp. Frag. 16, 1.) Such persons are disqualified from taking under a testament, unless they are cognati of the testator within the sixth degree. The S.C. Pernicianum, or Persicianum made the penalties of the Julian law perpetual in the case of those who had attained sixty or fifty years without being married. But a S.C. Claudianum allowed a man over sixty to escape if he married a woman under fifty. (Ulp. Frag. 16, 4.) A coelebs escaped the penalties if, after the death of the testator, he or she married within the time of cretio (see postea as to the meaning of this), usually 100 days. (TJlp. Frag. 17, 1, 22, 3.) Besides being married, a man over twenty-five, or a woman over twenty could not take more than one-half of whatever was left them, if they had not at least one child. (TJlp. Frag. 16, 1. ) All these rules were abolished by the sons of Constautine. (C. 8, 58, 1.) 3. The person appointed heir must be a specific living indi- vidual. {Incerta persona heres institui non potest.) A strange posthumous child is one that when born will not be among the testator's sui heredes. A grandson, therefore, by an emancipated son, is a strange posthumous child to his grandfather. A child, again, in the womb of a wife that has been married, when there was no conubium with her, is a strange posthumous child to his father. (G. 2, 241.) TESTAMENTI FACTIO. 799 A strange posthumous child cannot even be appointed heir, for it is an indeterminate person. (G. 2, 242.) The right oi bonorum po.tsesszo ^a.% brought in by the Prastor to amend the old law. Not only in regard to the inheritances of the intestate did the Praetor in that way amend the old law, as has been said above, but in the case of those also that made a will before they died. For if a strange pos- thumous child were appointed heir, by the jtis civile he could not enter on the inheritance, because the appointment did not take effect. But by the/;/.? honorarium he was made bonorum possessor when, namely, he was aided by the Praetor. In our day, however, such a person can rightly iDe appointed hen- under our constitution, as being not unknown to the jus civile. (J. 3, 9, Pr-) Whosoever shall be first at my funeral, let him be heir. This is void for uncertainty. (Ulp. Frag. 22, 4.) An unborn child was an incerta persona. Aquilius Gallus (see p. 777) introduced a clause for their admission, and efiect was given to it, when, but for the death of the testator, the posthumous child would have been under his potestas. Municipalities and corporations were held to be " incei'tae per&onae.''' (Ulp. Frag. 22, 5.) The reason was that there was no one to go through the solemn form of acceptance, " cretio ; " and when that formality fell into disuse, there was no meaning in the objection. By a Senatus ConsuUum (? Apronianum) the freedmen of munici- palities were expressly allowed to leave their inheritance to the municipalities. (Dip. Frag. 22, 5.) Leo (a.d. 469) authorised cities to be heirs (C. 6, 24, 12) ; and after- wards corporations, by special licence, enjoyed the same privilege. (C. 6, 24, 8.) A legacy also to a strange posthumous child was void. A strange pos- thumous child is one that, if born, would not have been among the testator's suz heredesj and therefore a grandson conceived by an emancipated son was a posthumous outsider to his grandfather. (J. 2, 20, 26.) But not even this class of cases has been altogether left to itself without any lawful amendment. In our Code a constitution has been placed, by which we have applied a remedy to this portion of the law, not only in the case of inheritances, but in those also of legacies and trusts, as becomes clear and bright if you read the constitution. But even by our constitution the tutor that is appointed ought to be determinate, because a man ought to provide for the tutela of his posterity by a determinate judgment. (J. 2, 20, 27.) A strange posthumous child could be appointed heir formerly, and can be now, unless he is in the womb of a woman that cannot lawfully be our wife. (J. 2, 20, 28.) Persons the testator has never seen can be appointed heirs ; as when a testator appoints as heirs his brother's sons born abroad, not knowing who they are. For the testator's ignorance does not make the appointment void. (J. 2, 14, 12.) Justinian abolished the rule, and allowed any posthumous child, corporation, or church to be heir ; and so also classes of persons, as the poor, captives, clergy, etc. (C. 6, 48, 1.) 4. Spiritual beings. Deities (or rather their temples) could not be heirs, except in those cases specially- allowed by some law ; such were Jupiter Tarpeius, Apollo Didymaeus of Miletus, SOO TESTAMENTUM, Mars in Gaul, Minerva of Ilium, Hercules Gaditanus, Diana of the Ephesians, the Mother of the Gods, Sipylene, worshipped at Smyrna, and Caelestes Selene, goddess of Carthage. (Ulp. Frag. 22, 6.) With a change of religion a difference in the application of the law followed. " Jesus Christ " was often appointed heir. Justinian construed such an appoint- ment as a gift to the church of the place where the testator lived. (G. 1, 2, 26, pr.) " An Archangel or Martyr " was often made heir, even, as Justinian says, by men of high rank and thoroughly versed in the law. This was construed as a gift to the shrine or church dedicated to the archangel or martyr in the place where the testator lived ; if no such shrine or church existed, then to a similar one in the metropolitan city ; and if none such, then to the church in the vicinity where the testator lived. (C. 1, 2, 26, 1.) If there is more than one shrine or church coming within the description, then that which is most venerated and frequented is to be chosen ; if none such, then the poorest church in the place is to be heir. (C. 1, 2, 26, 2.) 5. Slaves. 1°. Testator's own slaves. As freemen can be appointed heirs so also can slaves, whether our own or belonging to others. A slave of our own we ought to order to be at once both free and our heir, that is in this way : — " Let Stichus my slave be free, and be my heir ; " or " Let him be my heir and be free." For if he is appointed heir without a grant of freedom, even although he is afterwards manumitted by his master, he cannot be heir, since the appointment in his person cannot stand ; and, therefore, even although he has been alienated, he cannot by his master's orders decide to take the inheritance. (G. 2, 185-187.) "Let Stichus be free; and if he shall be free, let him be heir.'' Was this form introducing liberty as a condition valid ? A rescript of Marcus Antoninus states that the words, "if he shall be free," were to be regarded as surplusage, and the appoint- ment was good. (D. 28, 5, 51, pr.) Marcus Antoninus also departed from the strict rule requiring an express grant of freedom, and upheld an appointment when the slave was spoken of as "freedman." (C. 6, 27,1.) Heirs may be appointed, not only from freemen, but from slaves, whether our own or belonging to others. Our own, indeed, in old times, according to the opinion of most, we could not lawfully appoint unless we gave them freedom as well. But in our day, even without a grant of liberty under a constitution of ours, we are allowed to appoint them heirs. This we brought in, not as an innovation, but because it was juster, and was the opinion of AtiUcinus, as Paul reports in his books, which he wrote as commentaries on Masurius Sabinus and Plautius. By a slave of one's own, moreover, is understood even a slave in whom the testator has the bare ownership while another has the usufruct. (J. 2, 14, pr.) A slave that is appointed heir [and free] by his own master, if he remains in the same case, becomes under the will both free and at the same time a necessary heir. But if he is manumitted by the testator in his lifetime, he can, as he thinks fit, enter on the inheritance or not ; because he does not become a necessary heir, since he does not obtain both freedom and the inheritance under his master's will. But it he is alienated, it is by the orders of his new master that he must enter on the inheritance ; and in that way, through him, TESTAMENTI FACTIO. 8oi the master becomes heir. The alienated slave can himself be neither free nor an heir, even although he is appointed heir with his freedom as well. For from giving him freedom a master that has alienated him seems to have turned aside. If another man's slave, too, is appointed heir, and is still in the same case, it is by his master's orders that he must enter on the inherit- ance. If, however, he is alienated, either in the testator's lifetime or after his death, before entering on the inheritance, it is by the orders of his new master that he must enter. But if he is manumitted either in the lifetime of the testator or after his death, but before entering, he can, as he thinks fit, enter on the inheritance or not. (J. 2, 14, i ; G. 2, i88.) Tlie appointment of a slave as heir must not violate the provisions of any law. There is a case in which, although freedom is given as well, the appoint- ment of a slave by his mistress as her heir cannot but be void. This is pro- vided for by a constitution of the late Emperors Severus and Antoninus, of which the words are these : — " It is but reasonable a slave stained by adul- tery cannot be lawfully manumitted by will before the decision appears on the woman charged as a partner in his crime. Hence it follows that if his mistress bestows on him an appointment as heir, it is to be held of no force.'' The term " another's slave" is to be understood to include one in whom the testator has a usufruct. (J. 2, 14, pr.) 2°. A slave partly belonging to the testator, and partly to another, or wholly belonging to another. If another man's slave is appointed heir, and is still in the same case, it is by his master's orders that he must enter on the inheritance. But if he is ahenated by him, either in the testator's lifetime or after his death, before entering, it is by his new master's orders that he must decide. If he is manu- mitted before deciding, he can, as he thinks fit, enter on the inheritance or not. (G. 2, 189.) If another man's slave is appointed heir, and has, as is common, time for decision given him, the day for a decision is understood to begin to run only if the slave himself knows that he has been appointed heir, and if there is no hindrance to keep him from informing his master, so that by his orders he might decide. ■ (G. 2, 190.) The slave of several owners, with whom there is testainenli faciio, if appointed heir by an outsider, acquires the inheritance for each of the masters by whose orders he enters according to his share of the ownership. (J- 2, 14, 3-) As a slave cannot take for himself hut only for his master, it is hard to understand why a testator should name the slave as heir, instead of directly appointing his master. One suggestion is that the slave could be sold, as Gains points out (2, 189), and the buyer thereby acquire the inheritance. Another suggestion (Ihering'a) has even less probability, namely, that in case of the predecease of the master, the slave would preserve the inheritance for the master's heirs. But that cuts both ways ; for the slave might die first, and thereby prevent the master from acquiring, ivhen it was his fortune to survive the testator. ■\ E 8o2 TESTAMENTUM. 3°. A slave when his master is dead, and no heir has entered on his inheritance (servus jacentis liereditatis). Another man's slave after his master's death can rightly be appointed heir, because even with the slaves belonging to an inheritance there is teslamenti /actio. For an inheritance not yet entered on represents the person not of the future heir but of the deceased, since even the slave of a child still in the vi'omb can rightly be appointed heir. (J. 2, l6, 2.) 6. Concubines and nattiral children. Before the time of Valens, Valentinian, and Gratian, it was unlawful to leave property to a concubine or natural child. But these Emperors allowed the natural children, along with their mother, to take one-twelfth of their father's property by gift or inheritance when their father had legitimate children. If he had none, and no father or mother, they could take as much as one-fourth. Justinian says such legislation gave rise to continual attempts at evasion by secret trusts, which often proved abortive through the perjury of trustees. Accordingly he resettled this branch of law. When there were legitimate children, he continued the rule limiting the share of natural children to one-twelfth. (Nov. 89, 12, 2.) If there were no legitimate children, but ascendants of the deceased survivor, they got the legifdma portio, and the natural children and con- cubine were allowed to inherit the whole of the residue. If one had no aecendants, he could leave all his property to them. (Nov. 89, 12, 3.) 7. Prostitutes and actresses ( prohrosae feminae) could not take even under a soldier's will. (Suet. Domit. 8 ; D. 29, 1, 41, 1.) 8. In the same speech the Emperor declared that he would not admit the inheritance of a man that by reason of a lawsuit left the Emperor his heir ; and that he would not make good any will not regularly made, and in which he was for (hat reason appointed heir ; that he would not admit the name ot heir if given by bare word of mouth ; and that he would not take possession of anything under any writing wanting in legal authority. In accordance with this, the late Emperors Severus and Antoninus have very often issued rescripts ; " for although," say they,•"^we are freed from the statutes, yet we live by the statutes." (J. 2, 17, 8.) III. Incapacity of Witnesses. If the witnesses to a will are capable at the time of the making of the will, it does -not signify thart they afterwards become incapable. (D. 28, 1, 22, 1.) A knowledge of Latin was not necessary ; it was enough if the witnesses knew the TESTAMENTI FACTIO. 803 nature of the transaction to which they were called as wit- nesses. (Paul, Sent. 3, 4, 13.) I. Persons absolutely disqualified. 1°. Slaves. When a witness was thought to be free at the time of making a will, but afterwards was shown to be a slave, rescripts both. of the late Emperor Hadrian to Catonius Verus, and afterwards of the late Emperor Severus and Antoninus, declared that they of their liberality would come to the help of the will, so that it should be held, to have been made as it ought. For at the time when the will was sealed, by the consent of all this witness was in the position of freemen, and there was no one 'to raise a question about his status. (J. 2, 10,7.) As witnesses those -can be employed that have testamenti f actio. But neither (2°) a woman, nor (3°) 9. boy under puberty, nor a slave, nor (4°) a dumb man, nor (5°) a deaf man, nor (6°) a madman, nor (7°) a man inter- dicted from managing his own goods, nor (8°) a man that the laws order to be treated as. utterly dishonest and unfit to take any part in. a will {iniesia- bilis), can be employed. in the number of the witnesses. (J. 2, 10, 6.) This class included those convicted df bribing magistrates [vepetuTidarum dmnnatus) (D. 28, 1, 20, 5) ; or adultery (D. 22, 5, 14) ; ,or libel (D. 28, 1, 18, ,1) ; apostates (C. Th. 16, 7, 4),-3nd many heretics. (C. 1, 3, 21.) The reason why -women could not be witnesses- is that wills were at fir^t made in the Comitia Calata,;to which women wer,e not admitted,; but, the disability was, kept up, although the reason:'for it had ceased. II. Incapacity arising from the relation of the parties. 1°. Those in the fainilia of the testator or familiae emptor. {JDomesiicwn testimonium^) Among the witnesses there oug-ht-not tobe any onein ths 'pntestas either oith.& familiae emptor or of the testator himself. The reason is,- that as the old law is. copied, this whole business that is gone throu^jh to fram-e a will is believed to be gone through between the familiae emptor and the testator. In old times, indeed, as we haye just,said, the njan that received the testator's familia, when conveved to him, was in the, position of heir,;. and so home testimonyin the matter was disapproved of. Hence,'if a man in \h& potestas of his father is. employed zs, familiae emptor, h.\s father cannot be a witness, no, nor even anyone in the s3.\-ne.potestas — his brother, for instance. Again, \i 3, filiusfamilias makes a will of his castrense peculium after his discharge, neither his father, nor any one in the poiestas of his father, can properly be employed as a witness. To the , balance-holder too, all we have said of witnesses must be understood tp apply. .Fpr he too is numbered with the witnesses. ((G. 2,1105-107.) But ; and E') described above. It might, how- ever, be perfectly valid at the time it was made, and before the death of the testator become void. We have now to consider what acts or events vitiate a will alter it is validly made. REVOCATION OF WILL. 805 Explanation of terms : — 1. A -will defective in respect of A, D, and E — i.e., which was informal, or did not appoint an heir, or the testator, heir, or witnesses were incapable of acting their several parts — was called te'stamentum injiistum, or non jure, factum. (D. 28, 3, 1 ; ITIp. Frag. 23, 1.) As regards B (disherison) there was a difference. If persons alive at the making of a win were not expressly disinherited, the will was said to be injustum (D. 28, 3, 3, 3), or nuUius esse momenti. At all events, it was void which he has been appointed heir [or because, being unmar- ried, he is removed from the inheritance by the lex Julia\ — in all these cases the paterfamilias. Alts intestate. For the former will is of no effect, since it is broken by the later ; and the later equally has no force, since there is no heir under it. (J'. 2, 17, 2 ; G. 2", 144.) If a man after completing a former will makes a later one equally rightly, then, even although the heir he appoints in it is- heir only to certain specified things, yet the earlier will is taken away. This was laid down by the late Emperors^ Severus and Antoninus in- a rescript. The words of that consti- tution we have ordered to be inserted, because it expresses something else besides. " The Emperors Severus and Antoninus to Cocceius of Campania. A will made, in the second place, although in it an heir is appointed only for certain specified things,^ takes effect in law {jtire) just as if no mention of these things were made. But the heir it appoints, there should ba no doubt, is bound to content himself with the things given him, or with the fourth made up. to him under the lex. Falcidia,.axiA. to give up the inheritance to those that were appointed in the former will ; for this reason, — that words were inserted in the second will expi"essly stating that the former will should take effect." In this way too, then, it comes to pass that a will is broken. (J- 2, 17, 3) A testator in his second will appointed a^ Heir any posthnmous child he- miglit have. He was so old and infirm that the chance of his having any children was ex- tremely small. Nevertheless the will is valid,- and revokes the first. (D. 28, 2, 9, pr.) But the first will would be valid if he were absolutely incapable of having any children, because in that case the heir named could not exist. (D. 28, 2, 6, 1.) A valid will was made disinheriting posthumous children. A second will did not disinherit them, and after the testator's death a posthumous child was born to him. The first will is made void by the second, and the second is- broken by the birth of Ivhe child. (D. 28, 3, 3, 4.) Two- wills are produced of different dates, each properly sealed, but the second on being opened is found to contain nothing — in- short, is a- "dummy wiU,-" The first is not revoked.. (D. 28, 3, 11.) Exception.— A Soldier's WilL (D'. 2-8, 3, 2.)- A soldier made a will with the usual forms, and afterwards, as a soldier, disposed of his whole- pr.operty by an informal will.- He retired from the army and lived more than a year. The first will is invalidated by the second, although informal, and the second by the survival of the soldier for more than a year after leaving the service. (D. 29, 1, 36, 4.) Lapse of Time. — By a constitution of Honorius and Theodosins (C. Th. 4, 4, 6), a will lapsed if it was not renewed after ten years ; but Justinian abolished any such prescription, unless it was proved by witnesses, or from the conduct of the testator, 8o8 TESTAMENTUM. that he wished his will, after, that period had expired, to become void. (C. 6, 23, 27.) B and C. A will is revoked if, after it is made, any one comes into being whom the testator is bound to appoint heir, or expressly to disinherit, or to whom the testator is bound to leave some property {legitima portio). Provision, as we have seen (pp. 777, 786), could be made for the birth of children to the testator ; but when a man adopted a child or obtained a wife Ml manum, his will was invalidated, and must be made over again. A will rightly made takes effect until it is broken {rupltini) or made null {irritum). It is broken when, though the testator remains in the same legal position {status), the rightfulness of the will itself is spoiled. {J. 2, !7, pr.) If, for instance, a man after making a will adopts a son, whether that son is a man siii jttris adopted through the Emperor [people], or a person in X\i& poiestas of an ascendant adopted through the Praetor according to our constitution, his will is broken just as if a siius heres had since been born to him. (J. 2, 17, I ; G, 2, 138.) The rule of law is the same if a wife passes in manicm of the man after the will is made, or if a woman in his manus is married to him. For in that way she comes for the first time to be in the place of a daughter, and becomes as it wer-e a sua heres. (G. 2, 139.) The fact that either the woman or the son that has been adopted was appointed heir in the will, goes for nothing. As for disinheriting, it is idle to ask about that, since at the time of making the will neither was reckoned zxaa-a^, sui heredes- (G. 2, 140.) When a son dies or is emancipated after tlie will is made, his cliildren become miiheredes. (Ulp. Frag, 23, 3.) A son, again, that after a first or second conveyance is manumitted since he returns into his father's potestas, breaks a will previously made. The fact that in that will he was appointed heir, or disinherited, goes for nothing. (G. 2, 141.) A like rule of law there formerly was in regard to a son on whose account, under a Senatus Consulium, a case of mistake is made good, because he was the offspring of an alien woman, perhaps, or of a Latin, taken to wife by mistake in the belief that she was a Roman citizen. For whether he was appointed heir by his ascendant or disinherited, or whether the father was alive when the case was made good, or whether it was after his death, in any event this broke the will as if he had been born since it was made. (G. 2, 142.) But now, under a new Senatus Consulium made at the instance of the late Emperor Hadrian, if the case is made good while the father is still ahve, this, just as in old times, breaks the will in any event. But if it is after the father's death, then the fact that the son is passed over breaks the will ; but if in it he is appointed heir, or disinherited, the will is not broken — no doubt to keep wills carefully made from being rescinded at a time when they cannot be renewed. (G. 2, 143) ORIGIN OF TESTAMENTARY TRUSTS. 809 D. AVhen the heirs named in the will die before the testator, or, surviving him, refuse the inheritance, or become incapable of taking it, the will is void {testamentum irritum). (D. 28, 3, 1 ; Ulp. Frag. 23, 4.) E. The testator must retain hie testamentary capacity at the time of his death, otherwise the will is void. There is another way, also, in which wills rightly made are invalidated ; when, namely, the maker undergoes capitis deminutio. In what ways this happens we have related in the First Book. (J. 2, 17, 4 ; G. 2, 145.) Exceptions. — (i) Lastly, if a soldier gives himself in arrogaiio, or being a filiusfamilias is emancipated, his will takes effect as being due to his renewed wish, and is not, it seems, made null by the capitis deuiinutio. (J. 2, II, 5.) (2) It is not in every respect, however, that those wills are null that [either from the first were not rightly made or] though rightly made, have become null [or been broken] because of a capitis deminutio. For if seven witnesses with their seals sealed the will, then the heir appointed therein can claim bonoriini possessio according to the terms of the will (secundum {tabulas) provided only the deceased was both z. Roman citizen and in no one's potesias at the time of his death. If, however, the .will became null because the testator lost citizenship or freedom as well, or because he gave liimself in adoption, and was at the time of his death in the potestas of his adopted father, the heir appointed cannot claim bo^io,ru?ii poss.essio according to the terms of the will (J. 2, 17, 6 , G. 2, 147.) Second. — The Informal Will. {Cqdicilli) {Hereditas Fideicommissaria.) A consideration of the elements of the Soman Will shows how great must have been the danger of an entire failure of the testator's intentions. In the first placq, the form of will- making was a serioiTS business. Even after the balance and scales were dispensed with, and the libripens was forgotten, the necessity of seven witnesses, each of whom might on one ground or another be incapable of acting, with the formalities of sealing, etc., involved no small trouble and risk. Then the will must disinherit individually or collectively a number of different persons, and it must provide portions for children and others having legal claims on the testator. The technicalities involved in this process must have been a source of endless disappoint- ment to testators. Next the appointment of the heir, or the substitutions, and the capacity of the several persons to take as heirs, must have given rise to much vexation and trouble. After the will was duly made, it Avas not free from peril. The 8lO FIDEICOMMISSA. subsequent agnation of a necessary heir rendered the whole of the proceedings nugatory, and required the will-making to be begun again from the very beginning. Lastly, even when the will was effectually made, and at the time of the testator's death was perfectly valid, the- heirs named in the will might refuse to accept. It is true that by the- time of Justinian some of the pitfalls had been removed, and the making of a will was not quite so formidable as in the time of Gaius : never- theless, all the old constituents of the will were maintained in full activity. At the best the Roman will, for the purposes for which it was desired in. later times, was a cumbrous and dangerous instrument. That the Roman will continued in all its complexity to the time of Justinian, is due to the circumstance, already mentioned, that in the time of Augustus a, new instrument wasintroduced, by v/hich the Romans were enabled to escape the inconveniences of the old wilL The two points where the narrowness of the Roman- will appears to have been most felt were the cumbrous formalities in making it, and' the restrictions on the persons that could be appointed heirs.- These two difficulties were removed at one stroke by giving legal effect to codicilli, and trusts {fideicom- missa). In the time of Cicero neither had obtained legal recognition, and trusts contained in wills depended entirely on the honour of the heir.. Cicero relates one or two instances that illustrate the first stage in the history of trusts, where they impose moral duties- only, not legal duties. The cases- mentioned by him further show the motives of testators in creating trusts. In one case a certain P.. Trebonius had- a brother, A.. Trebonius, to whom he desired tO' leave his property, but who was proscribed^ and therefore incapable of taking it. P. Trebonius named several honest and uprfght men as heirs, and among them a freedman of his own.. He stated in his will that all the heirs ■ should take an- oath each to give one-half of his share to the proscribed brother, A.. Trebonius. The freedman alone took the oath.. The other heirs applied to Verres, and desired to be relieved from taking the oath, because it was an evasion of the lex- Cornelia^ which forbade an inherit- ance to be given to one proscribed.. They obtained possession without taking any oath. This decision of Verres, Cicero does not quarrel with, because the oath was unlawful, and it might therefore be treated as a harmless superfluity (7ion scriptum) ; ORIGIN OF TESTAMENTARY TRUSTS. 8ll but Cicero denounces the other part of Vei-res' judgment, which refused to the freedman his share of the inheritance on account of his being under an oath to restore the.half of his share to the proscribed brother. (Cic. in Verr. 2, 1, 47.) In this case the testator was thwarted by the apparently conscientious scruples of the heirs, who thought themselves bound by the lex Cornelia, and by the erroneous judgment of Verres, who deprived the freedman of his share; In another case, the testator, instead of trusting to the chance of the heirs taking an oath to obey his directions, asked and obtained the promise of the heir named in the will in his lifetime. Cicero, among' others; was invited to a meeting of the friends of P. Sextilius Rufa, whose advice was asked by him under the following circumstances.- He was appointed heir to Q. Fadius Gallus, who stated in his- will that he had asked Sextilius to surrender the- whole inheritance to his- daughter Fadia, for by the lex Voconia he- could not make' Fadia his heir. The friends thought that he was not bound to surrender more than the lex Voconia allowed.. (Cic. De. Fin. Bon. et Mai. 1, 17 (55).) lu another passage Cicero mentions with commendation a case Avhere a man gaveup property left to him on a secret trust, of which no one but himself was aware. (Cic. De. Bon. et Mai. 1, 18 (58).) The case of Sextilius shows that when the trust was mentioned in the will, the testator hoped that the public disgrace of appropriating the money by the heirs would be sufficient to ensure- its observance. Justinian informs us- by whom the sanction of law was first thrown around trusts. Let us now pass on to- trusts (^fideiiommissa) ^, let us look first at inherit- ances left on- trust. (J. 2, 23, pr. ; G. 2, 246-247.) We must know, therefore, that all trusts in early times were invalid, because no one was forced against his will to carry out what he had been asked to do. But since there were persons to whom inheritances or legacies could not be left, testators, if they left them,-used to trust them to the faith of those that could take under a will.- This, indeed, is why they were called trusts, because no bond of law, but only the honour of those that were asked, secured them. Afterwards the late- Emperor Augustus first, after being stirred to action once and again by way of favour to particular persons, or because it was-said to be for the Emperor's- sake {per ipsiiis sahitem) that some one was charged with a. trust, or because of certain notable breaches of faith, ordered the consuls to interpose their authority. This seemed both just and popular, and was therefore step by step changed into a con- tinual jurisdiction. So great then became the favour in which they were held, that after a little a special Praetor even was appointed to lay down the law as to trusts. He was czWsA Jideicomtnissarius. (J. 2, 23, i.) 8l2 FIDEICOMMISSA. A. The Fidetoommissaria Hereditas. L Definition. Ulpian says, "A trust is not what is left by the words of the jus. civile, but by entreaty. It is not from the stiffness of the JUS civile that it proceeds ; it is given according to the wishes of liim that leaves it." ^ Hence it might be in Greek, at a time when a will must be in Latin. (Ulp, Frag. 25, 9.) In the first place, then, we must know that some heir must of necessity be appointed aright, and that to his faith the inheritance must be entrusted to give it up to some one else. If not, the will is void, since in it no one is properly appointed heir. (J. 2, 23, 2 ; G. 2, 248.) If, then, a man writes, "Let Lucius Titius be heir," he can add, " I ask you, Luciu-s Titius [and beg of you], that as soon as you enter on my inherit- ance you surrender it to Gaius Seius, and give it up to him." ^ He can also ask the heir to give up a part, and he is free to leave the trust either simply or conditionally, or from a fixed day. (J. 2, 23, 2 ; G. 2, 250.) The words chiefly in use for trusts are these : " I beg," " I ask," " I wish," " I entrust to your faith." Each by itself is as valid as if all had been heaped up into one. (J. 2, 24, 3 ; G. 2, 249.) It makes no difference whether it is an heir appointed for the whole that is asked to give up the inheritance in whole or in part, or an heir appointed for part that is asked to give up either his whole part or a part of his part. In the latter case, too, we have ordered the same rules to be observed that we have spoken of in regard to the whole inheritance. [An account of the fourth part of that part is usually taken under the Senaius Consitltum Pegasiami?ii.] (J.. 2, 23, 8,; G. 2, 259.) (See p. 815.) Paul adds other words, as usual, as mando, deprecor, cupio, injunqo, desidero, impero. (Paul, Sent, i, 1, 6.) In ordinary cases, relinque or commends was not sufficient ; but as between father and sen any words showing an intention to create a trust were given effect to. (Paul, Sent. 4, 1, 11.) In the time of Justinian, however, these dis- tinctions were disregarded, .and .any words indijcating the intention of the testator were sufficient. II. FIDEICOMMISSA AS AFFECTING THE POSITION OF THE HERES. In discussing the duties of a heres, nothing was said of his duties to a person to whom he was asked to surrender the whole or part of what was left hjm. It was not expedient to complicate the exposition, at that stage, with an account of a process essentially connected with the investitive facts ; for, ^ Fideicommissnm est quod atom tivilihus verbis sed precatione rdinquitur ; nee ex rir/ore juris civilis profieiseitur, sed ex voluntate datur relinquentis. (Ulp. Frag. '25, 1.) 2 Lucius Titius heres esto, "poterit adicere : " rogo te, Luci Titi, petoque a te ut, cum primum possis hereditatem meam adire, eamGaio Seio reddas, restituas. FIDEICOMMISSARIUS AND HERES. 813 in the end, the fideicommissdrius heres became a true universal succesKSor, and therefore, like the bonorum possessor, to all intents and purposes an heir. This result was not, however, finally- attained until the time of Justinian, so that the development of the law of testamentary trusts extended throughout the duration of the Empire, from Augustus to Justinian. Explanation cxf TEKMa. Jleres is used to desigirate the heir appointed by a will, or taking ah intestato. Fideicoinmissarivs is the cestui que trust, the person tor whom, by way of trust, the heir is required to give up the whole, or a shad*e, of the' inheritance. (a.) Duties of Heres to Fideicommissarius: 1. In respect of the corpus of the property. The heres must surrender to the fideicommissarius what he is required by the deceased. (1.) The ordinary case was when the heres was asked simply to surrender the inheritance to another. The heres must give up to the fideicommissarius all that he has obtained as- heir, or suuli proportion thereof as he is charged to surrender. This includes all payments made to the heir even if in discharg-e of a mei-e natural obhgation. (D. 36, 1, 47.) A husband was suffered to murrage his wife's extra-dotal property, and before he had rendered an account the wife died, leaving him sole heir. He was, however, charged to give up ten-twelfths of the inheritance to their son on his (the husband's) death, and two-twelfths to a grandson. The husband must account to the son and grandson for his administration of the wife's property. (D. 35, 2, ^, pr.) The trust includes her dowry, restored to her after divorce. If the property is actually restored, it is part of her goods in possession at the time of her death ; if it is not restored, the husband owes the amount, by stipulation, to his wife, and he must pay it to the heir as a debt forming part of the inheritance. (D. 3&, 1, 7S, 9.) But a heres is not bound to surrender to a fideicommissarius what he receives as legatee or fideicommissarius, and not as heres, unless such appeared to- be the intention of the testator. Titius and Gaiua- are appointed co-heirs. Titius is asked to surrender his inheritance to Maevius ; Gains is asked to surrender half his share to Titius. Is Titius bound to surrender what he receives from Gains? No, that is excluded, because the word " inheritance " (hereditas) does not include legacy or trust [fiddcom- missum). (D. 32, 1, 96.) A testator appointed his daughter Sextia for a quarter, and Seins and Marcius, sons of a sister, for other three quarters. Sextia and Marcius were substituted reci- procally, and certain things were given to Marcius as a pre-legacy (per praeceptionem). Marcius never entered, and died intestate, leaving Seius his heir. Does Sextia as substitute, or Seius as heir to Marcius, take the pre-legacy ? It was held that Seixtia got only the share of Marcius, and that Seius was entitled to the legacy. This decision is based on the same principle, that the term inheritance excludes lega(;y, and equally so whether Sextia takes as substitute or as fideicommissarius. (D. Z'l, 1, .32.) 8 1 4 FIDEICOMMISSA. A testator left several heirs, and among them three freedmen for three-fourths of his inheritance. To them he also gave his lands as a legacy {praelegatum), and charged them not to alienate the land, but that the survivor should have the whole. One of the three freedmen, Otacilius, was charged to surrender all his share of the inheritance (kereditas bonave) to another, deducting debts and legacies, and reserving 20 aurei to himself. This trust does not include his share of the lands left as a pre-legacy {per praeceptioncm). (D. 36, 1, 78, 13.) A testator appointed his children heirs, specifying their shares andgivingthempre- legacies, on trust that whichever of them died without children should surrender his portion [portio ma) to the rest. Held to include the pre-legacies, because the word portion was not qualified by " portion of J;he inheritance " (poHio hereditaria). (D. 36, 1, 3, 4.) A testator appointed three heirs, — his brother Maevius for nine -twelfths, one Seius for two-twelfths, and Stichus, a slave of Seius, but a natural son of Maevius, for one- twelfth. He charged Seius to manumit Stichus. In codicilli the testator added that if Seius raised any controversy, the share of Stichus should go to Maevius, and Maevius was charged to surrender to Stichus whatever he got from the inheritance {quldquid ad te pervenerit ex kereditate inea). ..Seius accepted, and so was obliged to manumit Stichus. Suppose Seius raises a dispute about the one-twelfth given to Stichus, and it is forfeited to Maevius and recovered by him, must he surrender this one-twelfth as well as the nine-twelfths to Stichus,? Yes, on account of the largeness of the words. (D. 36, 1„78, 2-3.) A daughter was made heir, and , charged, if she died leaving -children surviving, to surrender'to her brother hep sharCfOf ,her father's property {partem ejus quae ad earn ex bonis patrispervenisset). She died, leaving a daughter. Must her heir surrender what was given to her by her father as dowry ? No, that is not part of her father's inheritance ; and even if the father had only promised ;a> dowry, her heir will recover it as a debt due to the daughter. (D..36, 1, 62, pr.) A husband appointed his wife heir for one-third, .and gave her dowry as a pre- legaoy. " To Seia, my wife, I wish my sons to give the amount of her dowry brought to me on her behalf." He charged hie wife to give up. after her death her share of the inheritance and legacies {qu-aecumque. ei legasset) to Titijus, their son. This was held not to include her dowry left as a pre-legacy,. unless thisiwas manifestly the testator's intention. In the latter case, however, she could not be required to surrender it unless she got equal advantages to it under theiwill. (D. 36, 1,,78, 14.) (2.) The light of the fideicommissarius, iintil the moment of surrender, is a right in personam against the heir charged with the trust, and against no one else. .Up to that moment the heir alone has jus in rem, but when the surrender is made, the property at once vests iu the fideicommissarius even before he has actual possession. (D. '36, 1, 63, pr.) Previous to that moment the heir is answerable for misconduct only in a fidei- commissary suit ; after that he may be sued like anyone else for theft or damage done bj^ him to the property. (D. 36, 1, 70, 1.) The surrender confirms any alienations made by the fideicommissarius before i(D. 36, 1, 56,), and revokes all aliena- tions made by the heres, except those for payment of debts of the deceased. (D. 46, 3, 104.) But the freedom of a slave manumitted by the heres was -not .revoked ; the heir, however. FIDEICOMMISSARIUS AND HERES. 815 must pay his value to the Jldeicommissarius, and that even when the trust was in codicilli unopened, and of whose nature the lieres could not be cognisant. (D. 36, 1, 25, 2.) By these re- strictions the right of the lieres was practically in abeyance. As the Jideicommissarius had a right to call for the surrender, he was substantially owner. Thus, again, there emerges in Roman law a divided ownership ; the heres is technical owner, but the fideicommis sarins is beneficial owner. (3.) Quarta Fegasiana. — The position of a heres asked to sur- render an entire inheritance was the same as that of a heres before the lex Falcidia, when all the property was swallowed up in legacies. The result was a failure of the will, because the heres would not accept the risk and trouble when he was to get nothing for it. This danger was removed by the Senatus Consultum Pegasianum, A.D. 70, Avhich gave the heres the same right to a fourth against the Jideicommissarius that he had by the lex Falcidia against legatees. (D. 36, 1, 21 ; D. 36, 1, 68, 1.) This enactment applied also -to those succeeding ab intestato. (C. 6, 49, 5.) A Jideicommissarius neglects for a long time to claim the surrender of an in- heritance from the heren. Does the income obtained by the heres during this period count as part of the fourth that he is entitled to retain ? No, because his income accrues to him from the negligence of the jideicomTyiissarius, not from the will of the deceased. If, however, the claim of the Jideicommissarius is suspended for a certain time, or until a, future uncertain event, the income is given to the heres of the deceased, and counts as, part of the.fourth. (D. 36, 1, 22, 2.) At first the right of the heir to the fourth was indefeasible; but a practice grew up, when a testa1;or left a pre-legacy to a heres, to petition the Emperor to .require the heres to be content therewith. (D. 36, 1, 30, 4.) Even when nothing was left to the heir, and the testator refused him a fourth, his will was generally supported and a fourth allowed to the heir, as appears from rescripts of Trajan, Hadrian, and Anto- ninus. (D. 36, 1, 30, 5.) Finally, Justinian allowed a testator to refuse the fourth altogether. (Nov. 1, 1, 2.) 2. In respect of the income of the property (fructws), the general rule was that the heir 'was entitled to the income or profits of the inheritance until 'the time when he was required to surrender it, unless the testator either expressly or by impli- cation desired the income to be surrendered along with the inheritance. (D. 36, 1, 18, pr.) A testator charged his heredes to give all fthey got from one -third of the inheritance to his foster-son Caius Maevius when he was fifteen years old ; and meanwhile, that 8i6 FIDEICOMMISSA. they should invest a sum at interest sufEcient to meet his wants ; and he, moreover, assigned two slaves, out of whose earnings the son might be supported till he was fifteen. It was held that the testator clearly meant the foster-son to have the interest of the sum that ought to have been invested ; and that must be reckoned as running not from the fifteenth year of the son's age, but from the death of the testator ; and when the slaves were sold, the amount of their wages, and not merely interest, is due for the same period. (D. 38, 1, 78, 12.) A testatrix appointed Pollidius heir, and charged him to give up the whole to her daughter when she had reached a certain age. The testatrix intimated that she took this course because she preferred to entrust the property to her relation Pollidius rather than to a tutor. She also gave Pollidius a legacy of land. Papinian, when Prsetorian Prefect, gave judgment that Pollidius sho«ld give up to the daughter the whole income and profits of the inheritance from the death of the testatrix. He based this judgment upon two grounds : (1) that Pollidius got the land as a pre- legacy, from which it was inferred that he was to- have no more ; and (2) because the testatrix showed that her only object was to have a trustworthy guardian for her daughter's property, instead of incurring the risk of a tutela. (D. 22, 1, 3, 3.)' Ballista appointed Eebellianus heir on condition that he covenanted with the colony of Philippi, that if he died without children, whatever he got from the testator would go to the colony. This was held to imply a gift of the income as well as of the capital to the colony, on account of the covenant [stijiulatio^ required to be made. The covenant was in fact conditional, and once the condition was fulfilled, according to the rule, the contract was regarded as perfect frona the time it was made. (D.- 36, 1, 32^) A testator said, " Whatever my heirs obtain from my inheritance, I charge them to give up on their death to my native colony, Benevcntum." Here, because the heirs are not required to promise the amount, they are entitled to' the income during their life. (D. 36, 1, 57, pr.) Appoktiokment. — A daughter, Titia, sole heir, was asked to surrender to Gaius half the inheritance, deducting small legacies and debts, which left her more than a clear Falcidian fourth. Titia surrendered the half at the proper time; Before that time, Titia received interest accruing due after the testator's death, and at the time of surrender, contracts are running under which interest will be due, and rents. Can Gaius recover interest accruing between the death of the testator and the surrender of his share ? Titia claimed all interest and rents because they 'werefruetus, and because she surrendered at the proper time, and had not fallen into ■mora ; and in the absence of mora, the fructus go to the heir. Marcellus stated that Titia could not claim the interest and rents that she could recover only by obtaining from Gaius a cession of his rights of action. The interest and rents that had accrued due and were payable before the surrender, she retained, as reward for her risk, troiible, or toil : but growing crops and interest not actually due form part of the inheritance, and must be delivered to Gaius. (!>. 36, 1, 44, 1 ; D. 36, 1,, 58, 2.> 3. The heir, prior to surrender of the trust property, must guard it with care, and is responsible for loss arising from negligence. The care required is not, however, the highest. It is that usually taken by the heir in managing his own pro- perty. (D. 36, 1, 22, 3.) (b.) Duties of Fideicommissarius to Heres. 1. All expenses incurred by the heir in managing the property may be retained by him ; if he does not retain them. FIDEICOMMISSARIUS AND HERES. 817 he may take back the property until the claim is satisfiecl. (D. 36, 1, 19, 2 ; D. 36, 1, 22, 3; D. 86, 1, 36.) An heir is charged to manumit some of his own slaves and surrender the inherit- ance to them. He may retain the value of the slaves. (D. 36, 1, 27, 17.) An heir obtained a pre-legacy o£ land. It turned out that the land did not belong to the testator. In the absence of any evidence showing the testator's knowledge that the land was not his, it was held that the testator wished the heir to have the land, and accordingly he may retain its value in surrendering the inheritance. ( D. 36, 1, 72. ) 2. The fideicommissarius must covenant with the heir to indemnify him in case he is held responsible for the eviction of purchasers from anything he has sold them out of the inherit- ance. (D. 36, 1, 69.) A Tieres was required to surrender an inheritance, reserving some land. Suppose this land is pledged. The debt is part of the burdens of the inheritance, and there- fore some jurisconsults held that the fideicoTninissarius should covenant to secure the heir against eviction by the creditor. Julian, however, thought such security could not be required. If the land, without security against eviction, would sell for one quarter the free proceeds of the inheritance, the heres has no claim on the Jideicom- misswriuSj because he gets his fourth ; but if the land would not fetch so much, the heres is entitled to retain as much as would make up his fourth. (D. 36, 1, 1, 16.) (0.) Duties of Fideicommissarius to Creditors and Legatees. At first the fideicommissarius occupied an uncertain position. If the whole inheritance was to be restored to him, he could not be called a legatee, and yet he was not heir. It was a maxim of the Roman law that the character of heir was indivestible (D. 28, 5, 88) ; and hence in the law of inheritance there are, in strictness, no divestitive facts. The heir could surrender the property, but he did not cease to be heir ; the only one that could sue or be sued in respect of actions connected with the inheritance was the heir. When the inheritance is given up, he that gave it up remains none the less the heir. But he that receives the inheritance was regarded as in the position sometimes of an heir, sometimes of a legatee. (J. 2, 23, 3 ; G. 2, 251.) We have now to trace the steps by which the fideicommis- sarius escaped from this ambiguous and unsatisfactory position, and was ultimately brought face to face with the creditors and legatees, in form as well as substance, an heir. 1. From Augustus to A.D. 56. In old times, indeed, he was in the position neither of an heir nor of a legatee, but rather of a purchaser. The practice at that time was for the man to whom the inheritance was being given up, to buy it with a single coin for form's salce. AH the stipulations, too, usually interposed between the vendor of an inheritance and the purchaser were actually interposed, 7> F 8l8 FIDEICOMMISSA. between the heir and the man to whom the inheritance was being given up — that is, in this way : the heir stipulated with the man to whom the inherit- ance was being given up, that for all he had been condemned to pay on account of the inheritance, or that he had otherwise given in good faith, he should be indemnified ; and that in any case, if anyone went to law with him on account of the inheritance, he should be properly defended. The other — the man that was receiving the inheritance — used to stipulate in turn that if anything came from the inheritance to the heir it should be given up to him ; as also that the heir should suffer him to pursue the actions pertain- ing to the inheritance as his procurator or cognitor. (G. 2, 252.) This somewhat clumsy expedient was the only means of giving efifect to fideicom- Ttiissa from the time they were first sanctioned till the reign of Nero. 2. From A.D. 56 to A.D. 70. — Senatus Consultum TrebelUanum. But afterwards, in the time of Nero, when Trebellius Maximus and Annaeus Seneca were Consuls, a Senatus Consultum was made, providing that if an inheritance was given up to anyone on the ground of a trust, then all the actions that by the jus civile were open to the heir and against the heir, should be given to the man and against the man to whom the inheritance had been given up under the trust. After this Senatus Consultum [those securities fell out of use, for] the Praetor began to give utiles actiones to him and against him that received the inheritance, as if to the heir and against the heir. [They are set forth in the Edict.] (J. 2, 23, 4 ; G. 2, 253.) The words of the enactment are given as follows : — " Whereas it is most fair, in the case of all inheritances left upon trust, that any actions arising concerning the property should be taken up by those to whom the right and profits are transferred, rather than that the faith of the heir should expose him to peril ; it is enacted that the actions heretofore given to or against heirs shall be given not to and against those required under a trust to surrender the property, but to and against those to whom under the will the property shall have been surrendered, so that for the future the last wishes of the deceased may be better upheld." (D. 36, 1,1,2.) This enactment applied both to testamentary and intestate heirs. (D. 36, 1, 1, 5.) The heir might transfer the inheritance, either by actual delivery {re) or by a message either verbal or written. (D. 36, 1, 37, pr.) If the trust was conditional or post- poned, the surrender had no effect until the time arrived or the event happened. (D. 36, 1, 9, 3 ; D. 36, 1, 10.) After the transfer, the Jideicommissarius, and not the heres, could sue the debtors of the deceased. (D. 36, 1, 40, pr.) A slave forming part of the inheritance was stolen prior to the transfer and after the death of the testator. The heres, and not the Jideicommissarius, can sue the thief. The same rule holds if any damage has been done to a slave, {ffae ertim actiones transeunt quae ex bonis dcfuncti pendent.) (D. 86, 1, 66, 2.) An heir lent money received from the testator, and accepted a pledge from the debtor. The Jideicommissarius has no action in respect of the pledge. But if the debt was due to the testator, and a pledge was given to the heir, the heir must admit the Jideicommissarius to the benefit of the security. (D. 36, 1, 73, pr.) A testator having rights to the services of a freedman appoints his son heir, charg- FIDEICOMMISSARIUS AND HERES. 819 iag Hm to surrender the inheritance to a stranger. The son retains the right to the services of the freedman, to which he is entitled not as heir, but as son of the patron. (D. 36, 1, 55.) The heir also retained his rights to the family burial-place. (D. 36, 1, 42, 1-.) If the whole inheritance is transferred, the fideicommissarius must pay all debts and legacies as if he were sole heir ; if only a portion, the fideicommissarius is practically a co-heir, and must bear the burdens in proportion to his share. (C. 6, 49, 2.) A testator has 400 aurei. He leaves 200 aurei as a legacy to Titius, and asks his heir to surrender one-half the inheritance to Sempronius. But the heir is entitled to his Falcidian fourth. Titius must therefore sue the heir for 100 aurei, and Sempronius for another 100. (D. 36, 1, 1, 20.) A testator has 400 aurei, and bequeathing 300 aurei, asks the heir to give up the whole inheritance, deducting 100 oMrei. In this case the heir gets 100 aurei, and the fideicommissarius must alone bear the burden of the legacy. (D. 36, 1, 1, 21.) A testator has 400 aurei ; he gives a legacy of 300, and asks the heir to give the inheritance to Seius, reserving 200 to himself. In this case the heir must give 100, and the legatee can only claim 200 from lls^e fideicomndssarins. (D. 36, 1, 1, 17.) Legatees and fideicommissarii charged with legacies or trusts cannot claim a deduction of the Falcidian fourth (D. 35, 2, 47, 1); but if the charge is one that the fideicommissarius succeeds to only in default of the heirs, as where the heir refused to enter, he may, as the heir would have done, retain a fourth. (D. 36, 1, 55, 2.) If, however, the share oi ^e fideicommissarius has been diminished by the Falcidian fourth, he may make a corresponding reduction in the legacies charged upon him. (D. 35, 1, 43, 3 ; D. 35, 2, 32, 4.) Titius is asked to give an inheritance to Maevius, and Maevius to pay Seius a certain sum. Titius retains his fourth. Maevius pays a quarter less. (D. 36, 1, 63, 12.) An heir was charged to surrender the inheritance to testator's wife ; and he did so, reserving his fourth. His wife was charged to restore a quarter of the inheritance at once, and after a time the residue to another. She must restore a quarter of what she gets, and the residue afterwards, not the whole as left by her husband. (D. 36, 1, 78, 11.) 3. From Vespasian to Justinian (a.d. 70 to A.D. 527). — Senatus Consultum Pegasianum. The Senatus Consultum Trelellianum was drawn on the right lines ; it made the fideicommissarius a true universal successor, who could sue or be sued as heir. A fideicommissum thus became an investitive fact of an inheritance. It had, however, one serious flaw. It did not compel the heir appointed to enter pro forma and transfer the inheritance. If the heir entered, the Senatus Consultum was effectual, but the heir need not enter, 820 FIDEICOMMISSA. and would not do so unless it were worth his trouble. In a mature law of trusts, it is an elementary maxim that a trust shall not fail from want of a trustee ; but in this early stage of their growth, the maxim was that no trust should be enforced unless there was a trustee. But a step in advance was soon taken. It consisted in offering a Falcidian fourth to the heir as a bribe to enter ; and if he alleged that the inheritance was insolvent, he was compelled to enter pro foiina in order to transfer the inheritance, iu which case the whole burden and benefit of the inheritance attached to the fideicommissarius. (D. 36, 1, 27, 2 ; D. 36, 1, 14, 4.) But the heirs appointed, when they were asked, as they oiten were, to give up either the whole inheritance or almost the whole, used to refuse to enter on the inheritance for the sake of a gain that was no gain at all or very trifling, and thus trusts were extinguished. Afterwards, therefore, when Pegasus and Pusio were consuls, the Senate came to a resolution that a man asked to give up an inheritance might lawfully keep back a fourth part of it, just as under the lex Falcidia there is a right to keep back a fourth in the case of legacies. Even in the case of single things left in trust the same keep- ing back is allowed. After this Senatus Consultum the heir himself used to sustain the burdens of the inheritance ; whereas he that under the trust received a part of the inheritance was in the position of the legatee of a share {pariiarius) — a legatee, that is, to whom a share of the goods was left. This form of legacy was called partitio, because with the heir the legatee shared the inheritance. Hence the stipulations usually interposed between the heir and the legatee of a share, were likewise interposed between him that received the inheritance under the trust and the heir ; that is, in order that both gain and loss from the inheritance should fall to them in common, in proportion to their shares. (J. 2, 23, 5 ; G. 2, 254.) Therefore, if the heir appointed was asked to give up not more than three-fourths of the inheritance, then under the Senatus Consultuin Trebelli- anum the inheritance was given up, and against both the actions pertaining to the inheritance were given in proportion to their shares. They were given against the heirs by theyaj- civile; against him that received the inheritance under the Senatus Consultum Trebellianuin as if he were heir. [The heir, however, remains heir even for the part he has given up ; and by him and against him actions may be brought for the whole. But he is not burdened further, nor are actions given him further, than the advantage of the in- heritance remains with him.] ' But if he was asked to give up more than three-fourths or even the whole inheritance, there was room for the Senatus Consultum Pegasianumj and the heir that had once entered on the inherit- ance, if only he entered by his own wish, whether he kept back a fourth part or refused to keep it back, himself sustained the entire burdens of the inherit- 1 The meaning is that although the Senatus Consult did not divest the heir of his status, and therefore his liability under the civil law remained, yet that in virtue of the Senatus Consult he could not he sued or sue except for his own share. FIDEICOMMISSARIUS AND HERES. 82 I ance. If, however, he kept back the fourth, then stipulations, as if of a share and in proportion to a share {quasi partis el pro parte), were interposed, as between the legatee of a share and the heir ; but if he restored the whole inheritance, the stipulations appropriate to the sale and purchase of an inheritance were interposed. If, further, the heir appointed refuses to enter on the inheritance, pleading that he suspects it as likely to cause him loss, the Senatus Consultum Pegasianum provides that at the desire of the man to whom he is asked to give it up, the heir shall, by the PrEetor's orders, enter and give up the inheritance ; and in that case the actions are to be given to and against him that receives the inheritance, just as if in law it came under the Senatus Consultum Trebellianuin. In this case no stipulations are needed, because at one and the same time he that gives up the inheritance is secured, and the actions pertaining to the inheritance are transferred to and against him that receives it ; for both the Seiiatus Consulta in such a case meet. (J. 2, 23, 6; G. 2, 255-258.) Partis, a share of the assets ; pro parte, a proportion of the burdens. 4. Justinian's Legislation. But the stipulations that came down under the Senatus Consultum Pegasianu77i were displeasing even to antiquity itself; and in some cases Papinian, that man of lofty intellect, calls them captious ; whereas we approve of simphcity rather than of difficulty in statutes. After having, therefore, had all the points both of likeness and of difference in both Senatus Consulta laid before us, we have determined to be done with the Senatus Consultum Pegasia7ium, which came on at a later time, and to lend all our authority to the Senatus Consultum Trebellianuin. Under it, there- fore, trust inheritances are to be given up, whether the heir has by the testator's wishes a fourth, or more, or less, or nothing at all, so that when nothing or less than a fourth remains with him, he may lawfully keep back either the fourth, or what is wanting, by our authority, or demand it back if already paid. At the same time, as if under the Senatus Cottsultum Trebel- liaiium, actions in proportion to their shares may be brought both against the heir and against him that takes under the trust ijideicommissarius). But if he of his own accord restores the whole inheritance, all the actions pertaining to the inheritance may be brought by or against him that takes under the trust. As regards also the chief point of the Senatus Cofisultum Pegasianum, that when the heir named in the will refused to enter on the inheritance given him, the necessity should be laid upon him of giving up the whole inheritance to him that took under the trust, if he wished this, and thus making all the actions pass to him and against him — this also we have transferred to the Senatus Consultum Trebellianum. Under it alone, therefore, is this necessity also laid upon the heir, if, when he is not willing to enter, the man that takes under the trust desires the inheritance to be given up to him, while neither loss nor advantage remains with the heir. (J. 2, 23, 7.) The constitution is as follows : Saiicimus itaque ut sive per contumaciam abfuerit is cui restitutio imposita est, sive morte praeventus nullo relicto successore fuerit, sive a primo fideicommissario in secundum translatio celebrari jussa est, ipso 7We utiles action es transferantur. (C. 6, 49, 7, 1.) 82 2 FIDEICOMMISSA. Special Case.— If an heir is asked to deduct or pick out first {praecipere) some one thing that includes his fourth — a farm, for instance, or anything else — and then to give up the inheritance, the surrender must be made under the Senatus Consultum Trebellianum, exactly as if he had been asked to keep back a fourth part, and to give up the rest of the inheritance. But there is this difference : In the one case — that is, when something is deducted or picked out first, and then the inheritance given up — the actions under that Senatus Consultum are transferred as one whole, and the thing that remains with the heir, remains with him free from any burden pertain- ing to the inheritance, just as if he had acquired it under a legacy. But in the other case — that is when, after keeping back the fourth part, the heir is asked to give up the inheritance — the actions are split up ; for three-fourths they are transferred to him that takes under the trust ; for the one-fourth they remain with the heir. Nay, even although the one thing that is de- ducted or picked out first, before a man is asked to give up the inheritance, contains the largest part of the inheritance ; all the same the actions are transferred as one whole, and the man to whom the inheritance is being given up ought to consider well whether such a surrender is any good to him. The same rules come in if two or more things are to be deducted or picked out before he is asked to give up the inheritance. Indeed, even if it is a fixed sum that is to be deducted or picked out first before a man is asked to give up the inheritance, and it contains the fourth, or even the largest part of the inheritance, the rule of law is the same. All we have said about him that is appointed heir to the whole (ex asse), we apply to him also that is appointed heir to a part. (J. 2, 23, 9.) III. FIDEICOMMISSA AS ENLARGING THE POWEU OF SUBSTITUTION. By direct substitution a testator could provide for the failure of an heir ; but if the heir appointed once entered, the substitution never could take effect. In pupillary substitution an advance was made. A father was allowed to substitute to his child, even if the child entered,, if it died under the age of puberty ; but beyond that no one could go. These restrictions were not imposed upon trusts, which in fact formed a con- trast to substitutions, for a trust could have no effect unless the heir entered ; a substitution had no effect if he did enter. Again, although we cannot make an appointment to take effect after the death of the man that becomes our heir of another heir in his room, yet we can ask the heir to give up at his death the inheritance to another in whole or in part. Further, since a trust can be given to take effect even after the death of an heir, we can bring about the same result if we write as follows : — " When Titius, my heir, shall be dead, I wish the inheritance to belong to Publius Maevius." In both ways, in the latter as well as in the former, the testator leaves his heir bound to give up the trust. (G. 2, 277.) A heres might be required to give up the whole or a part of the inheritance at a given future time, or at his death ; or con- ditionally, as in the event of his dying without children. TRUST SUBSTITUTION. 823 The man to whom anything is given up, the testator can ask to give it up n turn to another either in whole or in part, or even to give up something :lse. (J. 2, 23, II.) The following examples of valid trusts illustrate the variety )f provisions that could be made through the flexible instru- ueutality oi fideicommissa : — A husband is left sole heir, and charged to surrender, on his death, ten-twelfths to lis son, and two-twelfths to a grandson. (D. 35, 2, 95, pr.) An heir is charged to surrender at once one-half of the- inheritance to Publius Haevius, and on his death the other half to the same person, (D. 36, 1, 27, 16.) Several children are appointed heirs, and charged, if any of them die without ihildren, to surrender their share to the rest ; and if all btrt one die without children, ;he survivor should have the whole. (Paul, Sent. 4, 1, 13 j D, 36, 1, 3, 4 ; D. 36, 1, !2; D. 36, 1, 22, 4.) A father appointed his two sons heirs on trust, that if one died without children, his ihare should go to the surviving brother ; and if both died without children, the whole ihould go to a granddaughter, Claudia. (D. 36, 1, 57, 1.} Maevia appointed her son heir for five-twelfths, her daughter Titia for three- iwelfths, and another son, Septicius, for four-twelfths. Septicius was charged, if he lied before his twentieth year without children, to give up his share to the others. (D. 36, 1, 78, 5.) Seius Saturninus appointed Valerius Maximus heir on trust to surrender the inheritance to testator's son, Seius Oceanus, when he was sixteen. {D. 36, 1, 46.) A testator appointed several heirs, including three of his freedmen, for three- quarters of his property. He also gave them lands as a pre-legacy, and charged them lot to alienate the land, and that the whole should go to the survivor. On one of the hree, Otacilius, he imposed a trust to give up all that he got to Titans, reserving only ;wenty aurei. (V. 36, 1, 78, 13.) A testator appointed his son heir for nine-twelfths, and his wife for three-twelfths — ;o the son in trust for the wife ; and he charged the wife to take eare of the son, to illow him 10 aurei a month until he attained his twenty-fifth year, and then to lurrender to him one-half of the inheritance. (D. 33, 1, 21, 2.) Power of AppointTnent. — A husband made his wife heir, and charged her on her leath to give his property to his children, or any one of them, or to whichever of his grandchildren she pleased, or to whichever of his blood relations she pleased. This vas held not to give any election as regards the children, but to give an election among he grandchildren : and if there were none of these, then among the cognates. (D. i6, 1, 57, 2.) Trust upon a Trust. — Gaius is appointed heir, and charged to manumit Stiohus ; Jso to give up the inheritance to Titius ; who, again, is charged to give it to Stichus. itichus, but not Titius, could under the compulsory clause of the Senatus Consultum ^egasianum force Gaius to enter pro forma, and surrender the inheritance. (D. 36, 1, 6, 16.) Gaius is appointed heir on trust for Titius ; and Sempronius is substituted for Jaius, on trust for Maevius. Under the same Sena'.us Consultum Gaius is compellable enter at the instance of Titius. (D. 36, 1, 63, 13.) Claudius and Sempronius are appointed heirs and uubstituted reciprocally, and ioth, or whichever enters", are charged to restore half the inheritance to Gaius after five ears. (D. 36, 1, 16, 7.) Antistia appointed Titius heir, and manumitted Albiua in her will, at the ame time bequeathing Albina's own daughter to her on trust to manumit her. 824 FIDEICOMMISSA. Antistia also charged Tilius to surrender the inheritance to the manumitted daughter of Albiua. (D. 36, 1, 11, 2.) A testator appointed his son sole heir. He made cocUciUi, which were not to be opened until after the son's death, charging his son, if he died without children, to give the inheritance to his sister. The son necessarily did not know the contents of the codiciUi, but still they were binding. (D. 36, 1, 25, 2.) A testator, in codiciUi confirmed by wUl, bequeathed a farm to his freedmen, for- bidding them to alienate it, and desiring it to go to their sons and grandsons. He added a clause that the freedmen should, out of the rents of the farm, pay to his heir Titius 1 mirei a year for thirty-five years from his (testator's) death. Unless the freedmen can prove that the testator meant to confine the annuity to Titius, it is due to the heirs of Titius until the end of the thirty-five years. (D. 33, 1, 18, pr.) IV. — FIDEICOMMISSA AS REMOVING TESTAMENTARY InOAPACITT. As regards the capacity of the testator, fideicormnissa had no effect. No one could make a fideicommissiim, unless he could make a will. (D. 29, 7, 6, 3 ; D. 29, 7, 8, 2 ; D. 29, 7, 2, 3.) But fideicommissa might be made in favour of. persons that could not take as heredes. 1. Again, although a Senatus Consultum forbids us to make a slave of our own under thirty a freeman and our heir, yet most are of opinion that we can order him to be free on reaching the age of thirty, and that we can ask that the inheritance shall then be given up to him. (G. 2, 276.) This was under the lex Jllia Sentia, and the provision was repealed by Justinian. 2. There were also other differences that do not exist now. Aliens, for instance, could take trusts ; and indeed this was, on the whole, the origin of trusts. But afterwards that was forbidden ; and now, in consequence of a speech by the late Emperor Hadrian, a Senatiis Consultum was made that such trust should be claimed for the Fiscus. (G. 2, 284-285.) About eighty years afterwards, under Caracalla, citizenship was extended to all Koman subjects, and this exception ceased to have any importance. 3. Latins too, who are forbidden to take inheritances and legacies directly at law under the lex Junia, can take them under a trust. (G. 2, 275.) Dedititii could not take even by way of trust. 4. A woman, again, who by the lex Voconia cannot take from a man rated in the census at one hundred thousand asses by being appointed his heir, can take by a trust the inheritance left her. (G. 2, 274.) The lex Voconia was obsolete in the time of Justinian. 5. The unmarried, who by the lex Jtilia are forbidden to take inheritances and legacies, were in old times thought fit to take trusts. The childless, too, who by the lex Papia, because they have not children, lose half of all in- heritances and legacies, were in old times thought fit to take trusts entire. But afterwards the Senatus Consultum Pegasianum forbade them to take trusts also (beyond a half), as well as legacies and inheritances. The trusts were transferred to those named in the will that had children, or if it were to turn out that none had children, to the People, — as is the law with regard to legacies and inheritances; (G. 2, 286.) CODICILLI. 825 This provision of the lex Papia was repealed by Constantine. 6. An " iincertain person " could receive a trust, but in the time of Justinian also directly by will. Although, from the same reason, or from a hke one, in old times, bequests could be made to an indeterminate person, or to a strange posthumous child by a trust, and that though he could neither be appointed heir nor have a legacy left him, by a Senatus Consultum passed at the instance of the late Emperor Hadrian the same rule was settled for trusts as for legacies and inheritances. (G. 2, 287.) In one respect fiddcommissum was narrower than direct be- quests, because no tutor could be appointed by fideicomviissum. There was no motive whatever to introduce trusts for such a purpose. But although in many parts of the law trusts are more wide-reaching than direct bequests, and in some are equally effective, yet a tutor cannot be appointed by will otherwise than directly ; as in this way, " To my children let Titius be tutor j" or thus, " To my children I appoint {do) Titius tutor.'' By a trust he cannot be appointed. (G. 2, 289.) B. The Instruments Creating Fidbicommissa. I. A will. Although it was by means of codicilli that fidei- Gommissa were introduced, yet once introduced, they were per- mitted equally in wills. II. By letter, or even by mere spoken words in the presence of witnesses, a trust could be imposed. This is stated to have been undoubted law by Diocletian and Maximian (A.D. 293). (C. 6, 42, 22.) Both Paul and Ulpian (Ulp. Frag. 25, 3) say that a trust might be constituted even without words, by a mere nod (nutu), provided the person had a capacity for making a will. (D. 32, 1, 21, pr.) Regard was had to the intention of a testator, and not to the manner in which his intention was signified. III. Codicilli. — Codicilli and fideicowmissa drew their first breath at the same time, and they were closely connected in their history. Codicilli may, in fact, be regarded after the estab- lishment of the yi(i«'coOT7nis«an'a /leradifas as the informal will of the Roman law. This will appear from a comparison with the testamentum. I. Comparison of codicilli and testamentum. Before Augustus' time, it is agreed, there were no codicilli in law ; but Lucius Lentulus, who also began trusts, brought them in. For when he was on his deathbed in Africa, he wrote codicilli., confirmed by will, in which he 826 FIDEICOMMISSA. begged Augustus by a trust to do something. The late Emperor Augustus fulfilled his wishes ; others thereafter followed his authority, and made good their trusts ; and Lentulus' daughter paid legacies she did not owe at law. Augustus, it is said, then called together the men learned in the law, and among them Trebatius, at that time the greatest authority, and asked them whether this could be received, or whether the use of codidlli was out of harmony with the principles of law. Trebatius, it is said, advised Augustus what to say, — that this was most useful and needful to the citizens, because of the great and long journeys there were among the ancients ; on these, if a man could not make a will, he might yet make codidlli. After this, when even Labeo made codidlli, no one any longer doubted that codidlli would be admitted as thoroughly good at law. (J. 2, 25, pr.) 1. Form of codicils. Of codidlli a man may make more than one, and they need no formalities in drawing them up. (J. 2, 25, 3.) This was the main fact. There could be only one valid will — a formal document ; there might be many codidlli, and they required no solemnities of form. At first any writing seems to have been admitted as codidlli, if it showed an intention on the part of the maker to distribute his property on his death. But letters that merely promised to leave one's inheritance, or simply showed an inchnation to do so, did not constitute codidlli. There must be a present intention actually to be- queath. (D. 29, 7, 17.) Even when the testator had in his will confirmed by anticipation only such codidlli as should be made under his own hand and seal, and the codidlli were neither written by him nor sealed, they were, nevertheless, quite valid. (D. 29, 7, 6,1.) Constantine first made the presence of witnesses necessary, but only when the codicilliimposed trusts on the heir ab intestato. (C. Th. 4, 4, 1.) Afterwards Theodosius (a.d. 424) required the presence of five witnesses, either invited for the purpose or meeting by accident, all to be present together, and to sign as witnesses if the codidlli were in writing ; and if the codidlli were not in writing, then to prove the wishes of the testator. (C. 6, 36, 8, 3.) Justinian relaxed this rule. Trusts in their early infancy depend entirely on the faith of the heirs. To this they owe not only their substance, but their name. The late Emperor Augustus, therefore, dragged them down to the bonds of law ; and we too lately, striving to outdo that Emperor, and on the occasion of a case brought before us by that illustrious man Tribonian, Quaestor of our sacred palace, have made a constitution, in which we have arranged as follows : — If a tes- tator has entrusted to the honour of his heir the surrender either of an inherit- ance or of some special thing, and the fact cannot be plainly shown either by CODICILLT. 827 .'riting or by five witnesses (the statutory number recognised in trusts), but ither fewer than five or no witness at all came in ; then whether it is the leir's father, or whoever else it maybe that chose the heir's faith, and wished omething to be given up by him, if the heir, in the grip of bad faith, refuses o fulfil what his faith is pledged to, and denies that affairs toolc this :ourse, and if he that takes under the trust puts the heir to his oath ifter first taking the oath de calumnia (that he brings no trumped-up :harge) himself, — then he must needs come under the oath that he heard lothing of the kind from the testator ; or else, if he refuses, he will be :ompelled to discharge the trust, whether general or special, that so the last vishes of the testator entrusted to the heir's faith may not utterly perish. These same rules, we have resolved, are to be observed when something is eft in like manner to be given up by a legatee, or by one that takes under a rust. If, then, he through whom something has been left admits indeed hat it has been left through him, but has recourse to legal subtleties, he is :o be compelled in any case to discharge the trust. (J. 2, 23, 12.) 2. Disherison. — No person could be properly disinherited by ^odicilli. 3. Legitim. — No codicilli were void by reason of their not providing legitim. 4. By codicilli, again, no one can be appointed heir nor disinherited, even although they are confirmed by will. But he that is appointed heir by will can be asked by codicilli to give up the inheritance to another in whole or in part ; and this although the codicilli are not confirmed by will. (G. 2, 273.) By codicilli, again, an inheritance can neither be given nor taken away, est the law of wills and of codicilli should be confounded. A disinheritance, :oo, cannot therefore be made by codicilli. But though directly an inherit- mce cannot be thus given or taken away, yet by a trust it can be lawfully eft in codicilli. By codicilli no condition can be added to the appointment jf an heir, and no substitute can be named directly. (J. 2, 25, 2.) This is the cardinal difference between a will and codicilli. A will was an instrument for the appointment of an heir. That svas its essential function; all else was unessential and col- lateral. Codicilli had no validity unless, either by will or ab Intestato, an heir was in possession. It is true that indirectly, by Jideicommissum, an heir could practically be appointed, superseding even the heir named in the will, and as time rolled Dn, the distinctions between the heres and the fideicommissariu.t were gradually obliterated; nevertheless the development of the law of inheritance, and the principle of its growth, are not intelligible without comprehending the radical difference in function between codicilli and wills. Hence the intimate rela- tion between codicilli and fideicommissa. The latter could be made by will, but a will was not essential to them ; whereas zodicilli were useless for the purpose of appointing an heir 3xcept through the medium oi fideicommissa. 828 FIDEICOMMISSA. 5. As regards testamentary capacity. No one could make codicilli who conld not make a will. (D. 29, 7, 6, 8.) II. Codicilli as dependent on wills. 1. Codicilli, when there is no will, impose a trust on the heirs ab intestato. They are not mere appendices to wills, but may be quite independent of them, and indeed in a sense rivals. Besides, a man that has made no will may, when at the point of death, ask him to whom he has understood his goods will belong either by statute or by the Jus honorarium, to give up to some one his inheritance in whole or in part, or to give some thing, as a farm or a slave. But otherwise legacies [legato), unless under a will, do not take effect. (J. 2, 23, 10.) 2. When there is a will, codicilli may be confirmed or not by the will. (1.) Do codicilli made prior to the will require to be confirmed in the will 1 Not only after his will is made can a man make codicilli, but even if he is dying intestate he can create a trust by codicilli. But when codicilli were made before the will was made, Papinian says they could have no force unless confirmed afterwards by the testator's special wishes. The late Emperors Severus and Antoninus, however, declared by a rescript that, under codicilli preceding a will, a thing left in trust may be demanded, if it is plain that the man that afterwards made the will had not drawn back from the wishes he expressed in the codicilli. (J. 2, 25, i.) (2.) Whether made before or after the will, codicilli are regarded as a charge on the testamentary heirs alone, so that if for any reason the heirs named in the will do not take the inheritance, the codicilli fail. (D. 29, 7, 3, 2.) Hence, although codicilli were not affected by the subsequent agnation of a fiuus heres (D. 29, 7, 19), yet if by that means the will was broken, the codicilli shared its fate. (C. 6, 36, 1.) When there was a will, the codicilli were treated as part of it, and therefore were held to speak from the date of the will. A slave belonging to the testator at the time of making his will, but afterwards sold by him, cannot be directly manumitted by codicilli : if the slave does not belong to the testator at the time of making the will, but does at the time of making the codicilli, the slave can recover his freedom hy fdeicommismm. (D. 29, 7, 2, 2.) A person makes a will, and afterwards is arrogated. During this time he makes codicilli. He is emancipated, and dies. The will is vaUd, but are the codicilli made at a time when the testamentary capacity of the testator was suspended? Yes, because the codicilli are read as part of the will. (D. 29, 7, 8, 3.) A testator makes a will confirming all codicilli, and afterwards in captivity codiciUi. He recovers his hberty and dies. The codicilli are not valid. (D. 29, 7, 7, pr.) CLAUSULA CODICILLARIS. 829 On a question of the solvency of the testator, when slaves are alleged to have been mumitted in fraud of creditors (D. 29, 7, 4 ; D. 40, 9, 7, pr. ), or when bequests are ide to persons born after the making of the will, the codiciUi are held to speak from e time when they were made. (D. 29, 7, 2, pr. ) III. Wills construed aa codicilli — Clausula Codicillaris. The existence of rival kinds of testamentary disposition, and val forms of bequest, could not permanently endure. It is le nature of all such innovations as Augustus made, either to e obliterated or to change the established usage. The triumph 'as destined to be on the side of the newer form ; and the lost complete vindication of the necessity and wisdom of the eform of Augustus, was when the will itself was content to ain vitality by being upheld as codicilli. It became usual with 3stators, in making a will, to say that if for any reason the istrument failed as a will, it should be regarded as codicilli pro codicillis etiam id valere). (C. 6, 06, 8, pr.) In the absence f such a provision, however, an informal or imperfect will was ot supported as codicilli. (D. 29, 7, 1.) The exact effect of such a clause was to enable the heirs amed in the will to make an election, whether they would band upon the will or sue as fideicommissarii, treating the 3stator as dying intestate. Once they had elected, they could ot alter their choice. (C. 6, 36, 8, 1.) This somewhat narrow Dnstruction was relaxed by Theodosius (a.D. 424) in the case 'here a parent of either sex appointed a descendant within le fourth degree of agnation or third of cognation. In this ise, if the heirs sued on the will and were defeated, they were llowed to fall back on the codicillary clause, and sue the heirs b intestato a.s fideicommissarii heredes. (C. 6, 36, 8, 2.) "This will I wish to be valid in any way it can," was held to bind the heirs ah teslato, by way of trust. (D. 28, 1, 29, 1.) " I wish this also to take effect in the room of codiciUi." This was held to be nding by a rescript of Marcus Antoninus. (D. 29, 1, 3.) " I, Lucius Titius, have written this my will without the help of any one skilled the law. I hare rather followed what my mind lield rational, than striven after 1 excessive and wretched nicety. If then I have done anything irregularly, or not as skilled man would have done it, the wish of a man of sound mind ought to be held as lod as a strict observance of legal forms." No one took as heir under this will. It »s held to bind the bonorum possessores ab intestato by way of trust. (D. 31, 88, 17.) A testator appointed his daughter his sole heir, and if she failed to take as heir, ipointed his grandson : he added, " If neither my daughter nor grandson be heirs, I ish my share, one-half of a farm, to belong to my freedmen." Neither the daughter ir grandson took under the will. No others were appointed heirs by the will; ;her, then, the gift to the freedmen was void, or it must be construed as a trust iding on the heirs ab intestato. In this case, owing to the language of the bequest 830 INTESTATE SUCCESSION. the latter alternative was adopted. This is an instance of implied codicillaris clausula. (D. 31,88, 9.) A son appointed his mother heir, and charged, her to take an oath to perform certain trusts. The will happened to be void, but the mother took as heir ah intestato. It was inferred from the fact that an oath was required, that the testator desired to bind his mother by the trusts in any event, whether the will was valid or not. Ac- cordingly, the will for this purpose took effect as codiciUi. (D. 31, 77, 23.) A testator bequeathed to a foster-daughter her freedom and certain legacies. The will was void, and the testator's children succeeded db intestato. There was no clausula codicillaris in the will. It was held, nevertheless, that the children were bound to manumit the foster-child, and give her the legacies mentioned in the defective will, because it was presumed, from the affection entertained for her by the testator, that he meant his bequests to her to take effect even if his will proved incomplete or defective. (D. 40, 5, 38.) C H ^ I> T E R II. INTESTATE SUCCESSION. First. — Succession to Feeeborn Peesons. Preliminaet. Names and Degrees of Relationship. At this point it is necessary to set forth how the degrees of kinship are reckoned. In this we must first of all observe that they are reckoned in three ways, by going -up, by going down, and by going sideways (ex transversa., ex latere) or collaterally, as it is called. The kinship going up is that of ascend- ants ; the kinship coming down is that of descendants ; and the kinship reckoned sideways is that of brothers and sisters and their issue, and agreeably thereto of uncles and aunts, either on the father's side or the mother's side. The kinships going up and coming down begin at the first degree ; the kinship that is reckoned sideways at the second. (J. 3, 6, pr.) In reckoning degrees of relationship in the Roman law, there is no difference whether we regard persons as related through blood {cognati), or as related through subjection to the potestas of a common parent or ancestor (agnati). (J. 3, 6, 8.) la the line of ascendants or descendants each generation counts one degree ; from father to son is one degree, from grandfather to grandson two degrees, and so on. Collaterals are descendants of a common ancestor, and the degree of propinquity between two collaterals is obtained by adding together the number of degrees between each and the common ancestor. Thus brothers are in the second degree, each being one degree from the common parent ; first cousins are in the TABLE OF PRO PINQUITY, VI. Patrui et Avunculi Magni Nepos et NeJ>tis. VI. Patrui et A vunculi Majoris Filii et Filiae. V. Fatrui et Avu?iculi Magni Filius et Filia. Pro^iores Sobrino. VI. Patrui et Avunculi Pronepos et Proneptis. Sobrini. Patrui et Avujiculi Nepos et Neptis. Prapiores Sobrino. VI. Fratris Abnepos et Abneptis. Fratris Pronepos et Proneptis. IV. Fratris Nepos et Neptis. Patrui et Avunculi Filius et Filia. Consobrini. Fratris Filius et Filia. VI. Abpatruus et Abavun- culus. Patruus et Avunculus Major. IV. Avunculus Magnus. Patruus et Avunculus. VI. Tritavus. Abavus III. Proavus. II. Pater. Trii z\ Aid, IV. ABa^vza- 111. Abamita. Abmater- iera. Afnita et Matertera Major. IV. A mita et Matertera Magna. II. Aina. IPSE. Nepos. Pronepos. AbnePos. AdnePos. Trinepos, II. in, IV. V. VI. A mita et Matertera. II. Soror. A initae et Materterae Majoris Filius et Filia. Atuitae et Materterae Magnae Filius et Filia. IV. Afnitae et Materterae Filius et Filia. Consobrini. III. Sororis F'ilius et Filia. VI. A mitae et Materterae Magnae Nepos et Neptis. V. Ainitae et Materterae Nepos et Neptis. Sororis Nepos et Neptis. A mitae et Materterae Pronepos et Proneptis. Sororis Pronepos et Proneptis. VI. Sororis Abnepos et Abnepiis. Filia. Neptis. Pfoneptis. ^\bneptis. Adnepiis. ^Uneptis. DEGREES OF COGNATION. 83 1 fourth degree, because each is the grandchild of a common grandfather or grandmother. (D. 38, 10, 10, 9.) The degrees of relationship are, of course, indefinite, but the Roman law provided no special names for persons in a degree beyond the sixth. It will be enough to have shown thus far how the degrees of kinship are reckoned ; for from these we can plainly understand how we ought to reckon the degrees beyond as well. Each new generation adds always one degree, so that it is far easier to answer in what degree each is, than to mark out each by a name appropriate to his kinship. (J. 3, 6, 7.) In the first degree there are — going up, a father, a mother ; coming down, a son, a daughter. (J. 3, 6, i.) In the second degree there are — going up, a grandfather, a grandmother ; coming down, a grandson, a granddaughter ; going sideways, a brother, a sister. (J. 3, 6, 2.) In the third degree there are — going up, a great-grandfather, a great- grandmother ; coming down, a great - grandson, a great - granddaughter ; going sideways, a brother's or sister's son or daughter, and agreeably thereto an uncle or aunt, either on the father's side or the mother's side {patruus, aniitaj avunculus, maiertera). Patruics is a father's brother, called in Greek Krarfoii. Avunculus is a mother's brother ; his specific name among the Greeks is i^riTptiig ; but he is called by the common name hlog. Amita is a father's sister ; maiertera 2l mother's sister : both are called ^e/k, or, among some people, rij^/s. (J. 3, 6, 3.) In the fourth degree there are — going up, a great-great-grandfather, a great-great-grandmother ; coming down, a great-great-grandson, a great- great-granddaughter ; going sideways, a brother's or sister's grandson or granddaughter, and agreeably thereto a great uncle or great aunt on the father's side (that is, a grandfather's brother or sister) ; and again, a great-uncle or great-aunt on the mother's side (that is, a grandmother's brother or sister) ; and a first cousin {consobrinus), male or female (that is, the issue of brothers or sisters). Some, indeed, think that they alone are properly called consobrini that are the issue of two sisters {sorores), as if the term were consororini, and that the issue of two brothers are properly called fratres palrueles (or if the offspring of the two brothers are daughters, sorores patrueles is the name) ; whereas the children of a brother and a sister are properly called amitini, and the children of your aunt on the fathei-'s side (amita) call you consobrinus, while you call them amitini. (J- 3, 6, 4.) In the fifth degree there are — going up, a great-great-great-grandfather, a great-great-great-grandmother ; coming down, a great-great-great-grandson, a great-great-great-granddaughter; going sideways, a brother's or sister's great-grandson or great-granddaughter, and agreeably thereto, a great-grand- uncle or aunt, either on the father's side (that is, a great-grandfather's brother or sister), or on the mother's side (that is, a great-grandmother's brother or sister) ; and again, a son or daughter of the brother or sister of an uncle on the father's side, of a first cousin (male or female), or of the child (male or female) of an aunt on the father's side ; as also one nearer than a second »32 INTESTATE SUCCESSION. cousin {propior sobrino) (male or female), — these are a son and daughter of a great-aunt or uncle on the father's side, or on the mother's side. (J- 3, 6, 5.) In the sixth degree there are— going up, a great-great-great-great-grand- father, a great-great-great-great-grandmother ; coming down, a great-great- great-great-grandson, a great-great-great-great-granddaughter ; going side- ways, a brother's or sister's great-great-grandson or great-great-grand- daughter, and agreeably thereto, a great-great-granduncle and aunt on the ' father's side (that is, a great-great-grandfather's brother and sister), or on the mother's side (that is, a great-great-grandmother's brother and sister) ; and again, a son or daughter of a granduncle or aunt on the father's side or mother's side ; and again, a grandson or granddaughter of the brother or sister of an uncle on the father's side of a first cousin (male or female), or of the child (male or female) of an aunt on the father's side ; as also second cousins (male or female), the children, that is, of the brother or sister of an uncle on the father's side, or of first cousins, or of the children of an aunt on the father's side. (J. 3, 6, 6.) But since truth is fixed in men's minds by the faith that comes through seeing more than through hearing, we have thought it needful, after recounting the degrees, to have them written out in a book at one view, that by this means youths may be able not only to use their ears, but to look closely with their eyes, and so to gain a most perfect knowledge of the degrees. (J. 3, 6, 9.) (See Table appended, taken from Theophilus.) Paul (Sent. 4, 11, 7) observes that in the ascending or descending line the reckoning stops at the sixth degree, but in the collateral line relationship is reckoned to the seventh degree. Arrangement of the Subject. A man dies intestate if he has not made a will at all, or if he has made it wrongly, or if the will he had made has been broken or become null, or if no one is heir under it. (J. 3, 1, pr.) Taking the earliest and the latest rules of intestate succes- sion, we find that they possessed extreme simplicity, but were founded upon a diametrically opposite theory of relationship. In both the property went to the family, but the word " family " meant a very different thing in each case. In the earliest times the family was based upon the potestas in the most rigorous fashion, so that even father and son, in the absence of the potestas, bore no relation to each other in law for the purpose of succession. By the latest rules, which were promulgated by Justinian after the Institutes, the family was recog- nised as formed by the tie of blood, and although the old idea was not wholly extirpated, it remained as a mere insig- nificant vestige, attesting in its shrunken proportions an ancient and obsolete system. The earliest rules date from the SUI HEREDES. 833 XII Tables : from that period, and the eslablishnient of the Prse- torian jurisdiction, down to the pubhcation of the Institutes of Justinian, there is a vast interval, covering the entire historic period, during which successive inroads were made on the primitive law,, all tending in the direction of Justinian'.s final reform. It is, the-refoi-e, necessary to consider the law of in- testate succession in three periods. I. Period of the XII Tables. II. From the establishment of the Pi-setor ta the Institutes of Justinian. III. Final reforms of Justinian's. Novels. First Period. — The XII Tables. By the XII Tables all persons capable of inheriting were arranged in three groups or classes,, in such manner that no person belonging to the second class could succeed if there were any person existing in the first class; and no one in the third class, subject to a single exception, while there existed any in the first or second class. The classes were respectively known as sui hevedes, agnatic and gentiles.. I. — Succession of Sui Heredes^ 1. A swi» heres is- any one that lived under \\\& potestas of the deceased, and was by his death released from the potestas.. The inheritances of intestates under the statute of the XII Tables belong first to the sui heredes. (J. 3, I, i v G. 3, i^, as restored„) Sui heredes are held ta be, as we have said above, persons in th.& potestas of the man that dies ;, a soa or daughter, for instance, a grandson or grand- daughter by a son, and a great-grandson or great-granddaughter by a grand- son that was himself the offspring of a son. It makes no difference whether they are descendants by birth or by adoption^ (J. 3, i, 2 ; G. 3,, 2, as restored.) A grandson or granddaughter, however; and a great-grandson or great- granddaughter, are reckoned among the sui heredes only if the person before them has ceased to be in \he: pates-tas of the ascendant, whether it is by death that this has happened or ia any other way, as by emancipation. For if during the time at which a man was dying his son was in poiestate, a grand- son by that son cannot be a suus heres. This must be understood to be said also of the rest of the descendants in order. (J. 3, i, 2 B ; G. 3, 3, as restored.) Posthumous children, that, if they had been born in the ascendant's life- time, would have been in potestate, are stii heredes. (J. 3, i, 2 C ; G. 3, 4, as restored.) ^SA- INTESTATE SUCCESSION. A cliild that is bora after his grandfather's death, but conceived in his grandfather's hfetime, if his father dies, and afterwards his grandfather's will is abandoned, becomes stms hcres. Evidently, however, if he were both conceived and born after his grandfather's death, then if his father dies and his grandfather's will is thereafter abandoned, he is not stius heres to his grandfather, because he never came into contact with his father's father by any right of kinship. In the same way also, among the grandfather's descendants, he that an emancipated son had adopted is never reckoned. Moreover, while those persons are not descendants as far as relates to the inheritance, neither can they seek boiwrum possessio as next of kin. So much for siii heredes. (J. 3, i, 8.) The same rule of law applies to those on whose account a case under the lex ^lia Sentia, or under a Senatus Consultum, is made good after the father's death, because they too, if the case had been made good in the life- time of the father, would have been in his potestas. (G. 3, 5, as restored.) These oases are stated, p. 200. The same must be understood of the son that after a first or second con- veyance is manumitted after his father's death. (G. 3, 6.; To release a son from the ^oiesfas, he must be mancipated three times. (See p. 212.) With these must necessarily be reckoned those that, though not the issue of regular marriages, have yet been given to the curiae of their States, accord- ing to the tenor of the constitutions laid down to meet such cases by former Emperors, and thus obtain the rights oi sici heredes. Those, further, must be added that are embraced in our constitutions, in which we have ordered that if a man unites himself with a woman to slrare his life, not, in the first instance, with the feelings of a husband, while yet she is a person he might marry, and has children by her that he has formally owned to be his, and afterwards, as his feelings go further, enters into a duly drawn-up marriage contract {nuptialia instrumentd) with her, and has sons or daughters, — then not only the children born after the dowry, it is settled, are lawful children, and in their father's potestas, but the earlier also, who have given the later offspring the chance of being accounted legitimate. We have resolved, also, that this shall hold good even although no issue is born after the contract for dowry is fully drawn up, or even though those already born are withdrawn from this light of day. (J. 3, I, 2 A.) For an account of these modes of acquiring the potestas, see p. 202. 2. When the question is raised, whether a man can be a si/iis heres, it must be asked of the time at which it is certain that one died without a will ; and this happens also when no one is heir under a will. On this principle, if a son is disinherited, and an outside heir appointed, and after the son dies it is already certain that the heir appointed by the Will will not become heir, either because he would not, or because he could not, then the grandson will become his grandfather's heir. The reason is, that at the time when it is cer- tain that the /a/^r/awz/'/wj has died intestate, the grandson alone is found. This is certain. (J. 3, i, 7.) I"or'the meaning of outside heir {heres extraneus), see postea. AG N ATI. 835 Exceptions. — Sometimes, although at the time of the ascendant's death :he heir was not in potestate, he yet becomes his stcits heres : as when a man returns from the enemy after his father's death. The jus posiliiiiinii does this. (J. 3, 1, 4.) (See p. 216.) On the contrary, it may happen that although a man is in the family of the deceased at the time of his death, he will not become suns hercsj if, for instance, after his death his father is judged guilty of treason, and because of this his memory is condemned. For he cannot have a suits heres, since the Exchequer {Fisaes) is his successor. ,It may, .however, be said that in strict law he is suus heres, but. ceases to be so. (J. 3, ,1, 5.) A wife in the rnanm of her husband succeeds him as a daughter. A wife, too, that is in jiianu of the man that dies, \%,z..sua heres; because she is in the position of a daughter. A daughter-in-lavif, again, that is in mamc of the son, will be, a sua heres, because sh,e is in the .position of a granddaughter,; but only if the son in whose. mamts she is when the father dies is not in his potestas. The same we shall say of her also that is in the mantis of a grandson, and. married to him.; because she i.s ip the position of a great-granddaughter. (G. 3, 3, as restored.) 3. Order of. succession among sui h,eredes-, and their respective shares. Whena sonor daughter, and'by another son a grandsonor granddaughter are in existence, they are called alike to the inheriteince, ; and the n.earer in degree does not shut out the further off, for it seemed fair that grandsons and granddaughters should succeed to their fathgl^s place [and share]. By parity of reasoning also, if there is a grandson or granddaughteriby a son, and by a grandson a great-grandson or great-granddaughter, they are all called at the same time to the inheritance. (J. 3, i, 6 ; G. 3,.7.) Since it isheld that grandsons and granddaughters, and also great-grand- sons and great-granddaughters, succeed to their parents' place, it seemed to agree with this that the inheritance shoilld be portioned. out by counting not heads but- stocks {nan in capita sed in stirpes). The result .is that a son has half the inheritance, and the two or more grandsons by another son the other half .Again, if there are in existence grandsopsby-two sops, by the one son one perhaps or two, and'by the other three perhaps or four, then to the one or the two one-half belongs, and to. the three. or the four the other half. .(J. 3,,i, 6;.G. 3,$.) II.— SUCCESSIOX OF AayATI. If no suus heres, and. none of those the ErEEtor or the constitutions call among the sui heredes, is in existence, or in any way seeks to gain the inherit- ance, then under the statute of the XII Tables. the inheritance belongs to the next agnate. (J. 3, 2, pr. ; G. 3, 9.) The words of theXII'Tables are — " If a man dies' intestate and has no suus hens, let the nearest Annates have Vvs, fartdlia'' ' (Ulp. Frag. 26, 1.) Si intestate moritur cili suus'heres nee esctt agnatus proximus familiam liabeto. 836 INTESTATE SUCCESSION. 1. Who are agnates {agnati). They are called agnates that are allied by statutory kinship. Statutory kin- ship {legitima cognaiio) is alliance through persons of the male sex. (G. 3, 10.) Agnates are, as we have declared in the first Book, kinsfolk allied in kinship through males, as if kinsfolk through one father. (J. 3, 2, i.) Brothers, therefore-, bom of the samefather, are agnates to one another; they are also called men of the- same blood {consanguinez) ; and it is not required that tfeey should have had the same mother also'. An uncle on the father's side, agaire, is an' agnate &f his brother's son, and that son in turn of his uncle; In fhe same number are first cousins- {fraires patrueles), per- sons begotten, that is, by two brothers ;. they are also caJIed consobrini. In this way we shall be able to- reach many degrees of agnation. (J. 3, 2, I ; G. 3, 10.) To adoptfoff also- the legal' relation of agnates' owes its being. It exists, for instance, between sons by birth and those their father has adopted ; and there is no doitbt these may properly be- called of the- same blood. If, again, one of the rest of your agnates — a brother, for' instance, or uncle, on the father's side, or even on'e' in a remoter degree^— adopts somebody, then, no doubt, between you there is the relationship of agn-ates-; (J.- 3, 2, 2.) The definitions in the text are incomplete.- It is true that ay-nati are persons related through males (not through females), but it must be added tha;t sudt persons must not have suifered a capitis deininuUo: (G. 3, 21.) This- addition, however, makes the definition very dumsy. It is, therefore; better to define'ajfimii as all persons that, if their common- ancestor had been alive, Would have been living together under his potestas at the time of his decease. Tlie descendants of a commom ancestor through females are excluded, because the children of- a female are- under- the potestas of her husband, and not of' her father. Her children belong to her husband's family, and not to her father's. Hence a capitis dcminiUio is fatal, because, it extinguishes the potestas. (See also- p. 193.) The affnafi, like the- sui Jveredes, ate thus' connee-ted through subjection (actual or possibley to ih.Q potestas of the same person ; they have both, so to speak, the same centre, but they have a different circumference. The'swi heredes are the nearest to the deceased ; they are tbose that have been real'ly orin contempla- tion of la-w under the potestas' oi the dece&s'ed ; tire agnati (if not also sui heredes) have never actually been under the potestas of one man, because tlie common ancestor has not been alive together with them; 2. It is not, therefore,, wbo is nearest at the' time' of death that we- ask after, but who is nearest at the time- at which it is certairr that a man has died intestate. If, however, a man makes a will before he dies, it seems better to ask who of the agnates is nearest at the time at which it is certain that no one will become heir under that will, (G, 3, 13.) The nearest agnate that is asked after, if a man has made no will before he dies, is the nearest at the time when he whose inheritance is in question died. But if he has made a will before he dies, the nearest that is asked after is the nearest at the time at which it first became certain that no one GENTILES. 837 would become heir under the will. For it is then only that a man can pro- perly be understood to have died intestate. Sometimes this is a long time in coming to light, and in this space of time it often happens that by the death of a still nearer, an agnate comes to be nearest that at the death of the testator was not nearest. (J. 3, 2, 6.) 3. Order of successiou amoDg the agnates. It is not, however, to all the agnates at once that tire statute gives the inheritance, but to those only that are in the nearest degree at the time when it first became certain that a man has died intestate. (J. 3, 2, i ; G. 3, 11.) In such a right there is ne succession. .If, therefore, the nearest agnate passes the inheritance by, or dies before entering on it, then those thatioUow can avail themselves of no right under the statute. (G. 3, 1 2.) The rule was considered harsh, and .was altered by .the Praetor. (J. 3 2, 7.) If there are more degrees of agnates than one, it is .clearly the nearest that the statute of the XII Tables calls in. If, therefore, for instance, there is a brother of the deceased, and another brother's son or uncle on the father's side, the brother is preferred. Although, too, the statute uses the singular number in calling in the nearest, there is no doubt that if there are more than one of the same degree all are to be admitted. Indeed " nearest," too, is properly understood of more degrees than one ; and yet there is no doubt that, although there may be only one degre.e of agnates, the inherit- ance will belong to them. (J. 3, I, 5.) 4. The agnates that aucceed take equal shares. If the deceased has a brother and a brother's -son, as may be nnderstood from the above, the brother is first, .because he comes first in degree. But in the case of sai kei-edes the law has been difterently interpreted. (G. 3. 1 5-) If, however, the deceased has no "brother alive, but Tias brother's'' children, the inheritance belongs to them aU. But a question has been raised, whether in case the children chance to be unequal in number — as by one brother one or two, an-d by the other three or four — the inheritance is to be portioned out by counting stocks (as is the rule of law among sj^i Aerjdes\ or rather by counting heads. It has, however, long been the received opinion that it must he divided by counting heads. The inheritance will therefore be divided into as many parts as there are persons on both sides, so that each may take one part (C 3, 16.) III. — Succession of Gentiles. If there is no agnate, the same statute of the XII Tables calls the men of the £^ens to the inheritance. Who they are we have related in the first book of our Commentaries ; and since we have there called attention to the fact that the whole law relating to them has become obsolete, it is superfluous here, too, to handle the subject more nicely. (G. 3, 17.) This succession had fallen into disuse in the time of Ulpian. (Mos. et Rom. Leg. Collat. 16, 4, 2, 1.) ' ' "Si agnatus nee escit, gentiles familiam habento." (I.Tlp. Frag. 26, 1.) If there is no agnate, let the men of the gens have the familia. 8^8 INTESTATE SUCCESSION. ^O What is a geiis ? Who are gentiles ? These are qnestiiins upon which Gains probably threw light, but of which we are deprived by an unfortunate lacuna in the MS. Cicero (Top 6) gives the following marks of "gentiles." They are persons bearing a common name (as the gens Claudia, the gens Cornelia), sons of freeborn men, descendants of men whose blood was never tainted with slavery,. and who have never suffered a loss of status. This' definition is purely negative except in one point,- and- that the- point upon which least information was necessary ; namely,, that the- members of a gens hove a common name. According to Cicero, two classes- could not be members of a getis ; (1) descendants of freedmen, and (2) those that had suffered a capitis d'eminutio: This last point equally characterises agnates and sui hered'es: Does it suggest that there is a relation between agnati and gentiles, like that between- agnati and sui heredest May we hold that just as sui heredes; descendants of a living parent, are to agnatic descendants of a common deceased ancestor, so these iti turn are to gentiles; descendants of a common mythical ancestor f One fact must weigh heavily. The fact that gentiles inherited, proves that in- the society in which the gens was a living unit, there was a deep organic connection between it and that patriarchal constitution of the familj^ upon which the rights of sui het'edes and agiiati were based. The right of inheritance is the last to. be capriciously disposed' of, and the manner of its disposition is one of the safest- indications of social structure. Doubtless in its development a nation may outgrow an earlier law of intestate succession, and' of this the whole history of Roman law is one prolonged illustration ; but originally the law must have been in- harmony with the strongest forces in the social organisation... No explanation of the gens, therefore, can be regarded as satisfactory, which sees in the gens- only an artificially-formed political body.. In the time of Gains, although apparently not in. the age of Cicero (De Orat. 1, 39), the claims' of the geiis were extinct, and our hiformation regarding it is accordingly very meagre. With our present information it is not possible to construct upon evidence an entirely satisfactory account of the Roman gens : but the institution of the gens was not peculiar to Rome ; it is found in the Greek States, and in various parts of the world. One thing appears quite certain : the gens was not a for- tuitous or artificial concourse of individuals ; it had a certain THE GENS. 839 oi'ganic unity and life. It had a common worship, and the object of the worship was the deified founder of the ge^is ; it had also, in some instances at least, a common tomb. It would seem also that the gens was answerable for the debts of one of its members, and bound to ransom any member that fell into captivity. (Livy, 5,. 32 ; Dion.. Hal. 13, 5.) Each gens also had its chief, who was at the same time judge, priest, and military leader. (Dion. Hal. 2, 7 ; 9, 5.) It was the assembly of the gentes [Comitia Cuviata) that sanctioned arrogation and the early form of wills. Lastly, the very name (gens gignere genitor) implies the theory at least of a common descent, which theory is strengthened by the members continuing to bear a common name. Keeping, these facts in view, we may accept as not altogether improbable the theoiy advanced by M. De Coulaiiges (La Cite Antique). He argues with mucli plausibility that the gens is simply the patriarchal family in a state of decay. The earliest records of Roman law are distinguished by the absence of primogeniture, and the equal division of property among the sill heredes-; but, according to M. De Coulanges, the fact was exactly the reverse in those earlier ages when the family was the only body politic. The patriarchal family was based on primogeniture, and the eldest son succeeded to the power ot the father and ruled the younger.. When,, however, the younger sons, on the growth of the City, achieved their inde- pendence, they naturally split up into different families, retain- ing a connection only through common worship and sacrifices under a chief. According to this view, the members of a branch family were agnati, while the membere of the several branches were gentiles to each other. If this be the correct account, the succession of the gentiles is founded on the same principle as the succession of the -s/a heredes and agnati. It is based on the potestas removed one degree further off. In that case, the intestate succession of the XII Tables may be described as consisting of three concentric but clearlj' dis- tinguished circles round one centre — ihe potestas. A paterfamilias dies. The first entitled to succeed are those that actually were under his potestas {sui heredes)^ The next are those that are descended from a common (historical) ancestor tlirough males (agnati). If there are none of these, we take a larger sweep. Those succeed who, through bearing a common name, worship- ping a common object (a deity sacrificed to by the gens alone). 840 INTESTATE SUCCESSION. and owing to each other mutual help, may plausibly claim to be descendants of a commou a.ucestor, who also might have exercised potestas over them all. If this be so, it was natural that rights founded on the potestas by so remote a connection should first give way, centuries before the rights of the agnates. This, at all events, was the march of events. Second Period. — From b.c. 366 to a.d. 543. The principle of the Roman family was the absolute supre- macy of its head. He alone had legal rights. But the tendency of Roman law, from the first time we get a glimpse of it, was to break down the family autonomy, and bring all its membei-s under the direct and immediate control of the State. The sovereigntj- of the State superseded and swallowed up the sovereignty of the head of the family. This movement implied a steady process of emancipation of the subordinate members of the family ; but that had proceeded a considerable way before it effected any changes in the rules of intestate succession. The ■old law stood inflexibly on the family as constitut-ed by the potestas., and sternly disregarded the closest ties of blooi The history of intestate succession is a history of the successive steps, generally forward, rarely backward, ia the direction or r-ecognising the family as founded on the tie of blood. The work was undertaken, in the first instance, by the Prastors ; and the instrument he employed was the honaram possessio, BOXORUM PossEssia So far as the rights and duties of a universal sirccessoT to a deceased person are concerned, there was, as we have seen (p. 744), no difference in substance between hereditas and honorum possessio. A person who obtained such a universal succession by the Prfetorian Interdict, and not by a petitio hereditatis, was a hcnorwn possessor^ whether his title was de- rived solely from the edict of the Prsetor, or whether it was good also by the jus civile. Bonorian p)ossessio means equitable or Praetorian inheritance ; the honorum possessor is an equitable or Praetorian heir, as the hcres is a legal heir. Every lieres was entitled to ask for and rely upon tlie equitable or Pr^torian title, if he thought fit ; but, in the later stages of the edict, at all events, it often happened that the equitable excluded the legal heir. EONORUM POSSESSIO. 84 1 Bononim possessio is coinposed of two words, which, in this CDDJunction, are used io a sense different from the m-eaning of the words taken separately. Bona in the law of property- means corporeal things on the way to become property by the operation of nsitcopio (pu 263) .; but in this connection means a universal succession to a deceaseil person. " Bona - . , nni- versitatis cujusqiie snccessionem, q-ua succeditur in jus de- mortui, suscipiturque ejus rei comraodum -et incommodum ; nam sive solvendo sunt bona, sive non sunt, sive damnum habent, sive lucrum, siv.e in corpor'ibus sunt, sive in actioni- bus," (D. '37, 1, 3, pr.) Aga.m, possessio is not to be understood in the sense it Taears in the law df Property ; for it means pos- session of a right, and not of a corporeal object — [est enhii juris magis, qicam corporis, possessio (D, 37, 1, 3, 1)] — the exact anti- thesis of ^3os«essio as understood in the law of Property (p, 392). There is, nevertheless, a certain propriety in the phrase bonorum possessio i for it indicates the identity of method by which the Prsetdr reform.ed the law of Property and the law of Inherit- ance. Attention has been already drawn (p. 372) to the similarity of objects and method of the Praetor in araanding those departments of law."^ Those that the Prsetor alone calls'to fhe mheritaTice do not become lieirs at strict Law-, for the Prsetor cannot make an heir ; that can be done only by a statute (/ex), or a like means of settling the law (ju-n's constitutio) — a Senatiis Co.nsultu.ni, for instance, arni the imperial .constitutions. But when the ^ In ■altefrag the la"w *oT 'Ownership, the Prsetor bad two nra-m objects "in view — (1) To remedy the inconvenience of too strict an attachment to formal convey- ances ; and (■2) to ^extend the enjoyment of property to persons that could not be owners by the civil law. The Prffitor pursued .analogous objects in the case of Inheritance ; partly he admitted a less formal mode of executing a will, a,nd partly he gave inheritances to persons that could not succeed acc(w:ding to the old law of Rome. The mode -of the Praetor's action is also similar. A Praetor could not make a li&re^ as he could not give the dominium ez jure QuiritiuTn ; bat just as he bestowed the practical enjoyment -of property under the name of possessio, bo he in effect made heirs under the name-of bonorum ^paasessores. But while these points sufficiently attest an identity •of aim .and method In the Prtetor's action, there is one notable point of difference. The interest of a Praetorian owner (possessor) and of % Praetorian heir {bonorum possessor) has the same juridical character 4 bat the investitive facts .creating the interest are entirely different. A chief element in the title to Praetorian ownership is physical occupation, and there- fore the remedies were either to retain or to recover possession. (See p. 357.) Practi- cally, traditlo was the transvestitive fact-of Praetorian, .as mcmcipatio was of Quiritariau ownership. But from the nature -of tiie case, ""delivery," as a mode of acquisition, was inapplicable to Inheritanoe. Thus the idea of " physical occupation," which bulks so largely in the law of Ownership, has no place in the law of Inheritance ; on the 842 INTESTATE SUCCESSION. Prsetor gives them bonorum possessio, they are settled in the position of the heirs, and are called bo?iorum possessores. In addition, there are also many other degrees the PriEtor has made in giving botwrum possessio, his aim being that no one should die without a successor. For the right of coming to take inheritances which the statute of the XII Tables settled within very narrow bounds, has been broadened greatly by the Prajtor on the grounds of goodness and fairness {ex bono et aequo). (J- 3, 9, 2'; G; 3, 3?.)" A honorum possessor recovered the property belonging to the person whom he succeeded by the Interdict Quorum Bonorum; and he could sue the debtors, and be sued by the creditors of the deceased by utiles actiones, in which it was feigned that he was heir. (D. 43, 2, 2 ; Ulp. Frag.. 28,, 12; G. 3, 81.> To gain possession, an- interdict called after its first words, quorum bonorum, is granted to the bonorum possessor.. Its forceand effect are this : When bonorum possessio has been given to a man, then this interdict binds any actual possessor (whether as heir or as possessor) of goods so given to restore them to the bonormn possessor. A man possesses" as heir when he believes himself to be- the heir. He possesses as possessor when- with no right at all he is in possession of property belonging to the inheritance, or even of the whole inheritance, though he knows it does not belong to him. This interdict is called for gaining possession {adipiscendae possessionis), because it is of use to him only that now for the first time tries to gain pos- session of property. If, therefore, a man gains possession and then loses it, this interdict is of no use to him. (J. 4, 15, 3 ;. G. 4,. 144-.) The terms of the Interdict were as follow : — " Quorum Bonorum ex edicto meo illi possessio data est quod de his bonis pro herede aut pro possessore possides posside- resve, si nihil usucaptum esset : quod quidem dolo male fecisti uti desineres possidere id illi restituas." (D. 43, 2, l,.pr.) contrary, the object of the Interdict Quoram Bonorum \s to acqum possession-. The investitive facts of the Pragtorian Inheritance are either an informal will of a testator complying with the requirements of the edict {secundwm tabulas), or a- place in the Prajtorian scheme of intestate succession, and that in two ways — either in the absence of a will, or by Prsetorian invalidation of a will {contra tdbvlas). In each of the three departments. Property, Contract, and Inheritance— and to these will presently be added Procedure — the Pr«tor had to deal with similar evils, and he applied similar remedies. Ifc is- only in the case of Ownership that the idea of physical occupation emerges' ; and that may ba said, in a sense, to be accidental. The Prsetor, it may without extravagance be supposed, while establishing equitable ownershipj might have adopted some other trans- vestitive fact than " delivery ; " he might, for instance, have taken a sealed writing as his mode of conveyance. No doubt there were in the circumstances, under which his jurisdiction was developed reasons for preferring "delivery;" but it is Completely to invert the order of ideas to suggest that it was out of any supposed moral claim attached to physical occupation that the scheme of Interdict-Possession took its rise. That theory is shaken to its foundation by the fact that we find in the case of Inheritance a complete system of Praetorian rights and remedies, exactly as in ownership, but to which the idea of physical occupation is wholly irrelevant. BONORUM POSSESSIO. 843 To a bonorum possessor property does not pass with full rights ; it becomes the petitioner's only in bonis. His ex jure Quiritium it can become only after it is acquired by jtsucapio. (G. 3, 80.) We still have fictions of the other sort in certain formulas. For instance : when a man has sought bonorum possessio under the edict, he proceeds on the fiction that he is heir. Now, it is by the Prjetorian law, not the statutory, that he comes into the place of the deceased. He has not, therefore, his direct actions, and cannot declare in his intentio (statement of claim) either that what was the deceased's is his, or that what was due to the deceased ought to be given him. By the fiction that he is heir, therefore, he frames his inteittio after this fashion ; for example : — " Let there be z. judex. If Aulus Agerius," the plaintiff himself, that is, "were heir to Lucius Titius, if then it appears that the farm in dispute ought to be his ex jure Quiritium" etc. : or if the action is against a person, a like fiction is set out first, and then the intetitio goes on : " If, then, it appears that Numerius Negidius ought to give Aulus Agerius ten thousand sesterces." (G. 4, 34.) Some writers assiga a more limited scope to the inter- dict Quorum Bonorum, aud' consider that its sole object was to give provisional possession, to. the claimant, leaving the question of right to be determined by a petitio hereditatis. There is, indeed, one passage (C. 8, 2, 3) that seems to bear such an interpretation (secunda actione propnetatis non exclusa). But, on the other hand, it is very clearly laid down that no one could obtain the benefit of the interdict, who did not prove that he had a good title according to the civil law or tiie Pr^torian edict. (C. 8, 2, 1.) If that be so, the iuterdict must have been a definitive, and not merely a provisional, remedy. The Digest mentions another remedy open to bonorum pos- sessores, namely, a, possessoria henditatis petitio. (D. 5, 5, 1.) By that petitio the bonorum possessor Q,o^^\^i recover exactly what a lieres could recover by the petitio hereditatis. (D. 5, 5, 2.) What the heir recovered was the ownership of the objects sued for ; and it would seem a reasonable inference that the only purpose that could be served by giving a petitio hereditatis to a Prsetorian heir (bonorum possessor) wasto enable him at once to obtain the ownership of the property, instead of proceeding by the inter- dict and waiting for usucapio. Agnitio. In order to establish a claim as a bonorum possessor, it was not enough that a person had a riglit under the Praetor's edict ; he must show an intention to assert his right. He must do something equivalent to the aditio of a heres. At first, there was required a formal application {ex parte) to the Prcetor. " Da mihihanc bonorum possessionem.''' (Theoph. ad J. 3, 9, 12.) But in the time of Justinian any signification of an intention to §44 INTESTATE SUCCESSION. claim as honorum possessor was enough. After this, and not before, the claimant could proceed upon the interdict Quorum Bonorum. Former emperors "have well provided for tlais case too, tliat no one might be anxious about demanding bonorum possession but tliat if in any way whatevei-, within the appointed times, lie has shown some token of claiming it, he may hav£ the full benefit thereof. (J. 3, 9, 12.) Since, therefore, the Praetor had brought in many forms of successions and had araianged them in order, .and since in each form of succession often several persons appear in different degrees, that creditors' actions might not be put off, but that they might have persons to summon, and that they might not lightly be put in possession of the goods of the deceased, and in that way iook after themselves, the Prsetor appointed beforehand a fixed time for demanding bonorum possessio. To descendants, therefore, and ascend- ants, both by birth and by adoption, he gave to demand .bonorum possessio the space.of^ year, to all others a hundred days. {]■■ 3, 9, g.) If within this time no one demands bo7ior.um possessio, his right accrues to persons in the same degree,; or if there is no one in that degree, then to the rest in the order in which the Praetor promises them bonorum possessio under the edict .on succession, exactly as if he ,that went before had not been in that number. If, however, any one rejects the bonortim possessio so bestowed on him, tlie Pr^tor does not wait until the time he appoints beforehand has run out, but at once admits tlie jest .under the 5ame edict. (J, 3, 9, JO.) In demanding bonorum possessio, days he might use (iiUles) are alone considered. (J. 3, 9, ir.) 'Tempus ittile, Tempus contimimn. Tempus continuum is time measured in {he orainary w.ty, 'incluiJing every day hetw.eeii tlie two dates in question. Tempus utile is when, for some special reason, all the days between two given dates are not reckoned, but some ot them are excluded from the calculation. Thus, an ascendant claiming bonorum possessio must apply within a year ; but, as he eonkl not apply on days when the Prstor did not^sit, he was entitled to 365 daj's-of the days on which the Prastor did sit, thus extending the time to a year and a-half or more. In like manner, it may happen that one of the parties is temporarily unable to appear in applications that cannot be heard ex parte (i.e., in the absence of the other side), as if he is a prisoner of war or absent on the ser-vioe of the State, or in prison, or detained by stress of weather -or other cause, and he cannot appoint an agent ; in these cases, •tttUe tempus is reckoned, i.e., only the times when the application could be made. (D. 44, 3, .!() The cases i-n -vvKch 'bonorum possessio was allowed include both testaments and .intestacy. In cases of testament, the Pi'setor granted possession contra tabiilas, superseding the legal heres, or -secundum tabulae, to the legal heres ■; or, in the absence of a will, to the successors as axranged in the Praetorian edict. The right of bonorum possessio was brought in by the Praetor to amend BONORUM POSSESSIO. 845 the old law. Not only in regard to the inheritances of the intestate did the Praetor in that way amend the old law, but in the case of those also that made a will before they died. (J. 3, 9, pr.) Sometimes, however, it is neither to amend nor to impugn the old law, but rather to confirm it, that he promises bonorum posscssio. For he gives it in accordance with the terms of the will to those also that have been ap- pointed heirs by a will rightly made [if only the will has been sealed with the seals of not less than severt witnesses]. Again, in case of intestacy, he calls heredes siii and agnates to- the boiZMiim- posressio: [In these cases his boon seems in this one point only to be of any use, that he that thus demands bonorum possessio can use the interdict beginning " QUORUM BONORUM," an interdict whose u-sefulness we shall set forth in its own place.] But in any case, even though bonorum possessio were removed, the inheritance belongs to them by the. jitr civile: (J- 3, 9, r ; G'. 3, 34.) A seventh kind o-f possession has followed,, which the Preetors, with the best of reasons, introduced.. Last of all,, the edict promises bonorwn pos- sessio to those also whose- right to the grant is included in the provisions of any statute, Senatus Consultum, or constitution^ This the Prjetor has not numbered with the bvnorum' possessiones that come in' case of intestacy, nor with those under wills, by any fixed law.. But regarding it as a last extra- ordinary aid, he grants ii, according' to- the requirements of the case, to those that come in under statutes, Senatus Consulta, or constitutions of the Emperors, in virtue of some novel, right ; and this whether" under a will or in case of intestacy. (J. 3, 9, 8.) Possession, sine m and cum re. But often certain pereons have bonorum' poMessio granted them in such a way that he to whom it is granted Ceinnot hold the inheritance. This is called bononan posses'sio sine re (in name, but not in fact). If, for instance, a will is rightly made, and the heir that is appointed decides to take the inheritance, but refuses to- ask bonorum possessia- according to the terms of the will, and remains content with being heir by the jus civile, then none the less those that if no'will is made are called tothe goods of the intestate can ask boiiorum possessio. But it is only in. name, not in fact, that the in- heritance belongs to- them, because the heir named in the will can make himself master of the inheritance. The rule of law is the same, if, when an intestate dies, the swics k^res refuses to ask bonorum possessio, and remains content with his statutory right. For to an agnate the bono?'u?ii possessio is open, but not in fact, since the suics- heres may make himself master of the inheritance. Agreeably to this also, if it is to the agnate the inheritance belongs by the jus civile, and he enters on the inheritance, but refuses to ask bonorum possessio, and accordingly one of tlie nearest kinsfolk asks it, he will have it, but not in fact, for tlie same reason. There are also certain other like cases, some of which we have related in an earlier part of our commentaries. (G. 3, 35-38-) But those that receive bonorum possessio according to the terms of a will that either was not rightiy made to start with, or, if rightly made, was after- wards broken or became null, if they can in that way obtain the inheritance 846 INTESTATE SUCCESSION. will have the bonorum possessio {cunt re) both in name and in fact. If, how- ever, the inheritance can be called away from them, they will have it in name but not in fact (sine re). (G. 2, 148.) For if an heir has been appointed according to the Jus civile, either under the first or under a later will, or if there is an heir by legal right in case of intestacy, he can call the inheritance away from them. But if there is no other heir according to the/aj civile, they can themselves keep the inherit- ance if they are in possession ; and if not, they have against those that are in possession of the goods .an interdict to gain possession thereof Some- times, however, although there is an heir appointed in the will according to X^aejus civile, or determined by statute, the heirs appointed .in the will are preferred. This is the case, for instance, wh^n the will is not rightly made merely because the fa7nilia was not sold, or because .the testator did not speak the declaratory words {ffuncupaiio). In this case they can defend themselves against the heir by the exceptio doli malt. (G. 2, ,149.) Origin of 'Bonorum 'Possessio. Is honorum possessio to be traced, like the law of possession, to the needs of peregrini ? Is the law of inheritance an illustration of, or an exception to, the rule that every department of Koman law >vas profoundly effected by the presence of n. large alien population in Konie ? ,In the first edition of this work, no attempt was made to connect the origin of h.onorum possessio with the requirements of peregrini. Two facts seemed to discourage any such suggestion. On the one hand, as bonorum possessio was the means by which the Praetor modified the law of "testaments and of intestate succession for Roman citizens, there appeared to be, without going outside the jus civile, a suSicient vera causa to account for the introduction of ionorum possessio. On the other hand, although bonorum. possessio is 'the only means known to us whereby the Prietor could deal with the property of decei-vsed aliens, yet there is no reference, so far as known to the author,'in the v/holo' corpus juris connecting peregrini in any way with bonorum possessio. But further consideration leads to the belief' that these arg^meiits are Stronger in appearance than in reality. A good reason can be given why,- even supposing that bonorum possessio was constantly employed by aliens, no mention should be made of the fact in the corpus juris. That work is a collection of rules of law ; but questions affecting the succession to a peregrinus, whether he died with or without a will, were questions of fact and not of law. .The disposition of the property of. a deceased alien was governed by the law of the State to which he belonged (XJIp. Frag. 20, 14), and was therefore a question of fordgn law — that is, so far as the .Koman lawyers were concerned, a question of fact. The silence of the jurists with regard to the succession of peregrini is thus intelligible, and, is quite consistent with the supposition that it was a matter of daily occurrence to grant bonorum possessio to the heirs of deceased aliens. The argument that the wants of Eoman citizens were sufficient to explain the introduction of bonorum possessio is not conclusive ; for the facts would be consistent with the supposition that bonorum possessio was brought in first for peregrini and afterwards extended to citizens. This indeed appears to have been actually what happened. It is the opinion of several writers that in the time of Cicero (see in "V'errem II. lib. i. 44-46, quoted by Mojle, p. 457), bonorum possessio ■ws.s granted, in the case of citizens, only to heredes, having a title by the jus civile; and that it was considerably later before the Prsetor ventured to use bonorum possessio as a means of ousting the legal in favour of the equitable heir. If this view be correct, it almost BONORUM POSSESSTO. 847 proves that honoimm possessio was not introduced for citizens, inasmuch as the heres had a complete remedy by the petitio hereditatis. It woiild be inconsistent with the tradition of Prsetorian reform to suppose that he would have introduced an Interdict (quoruTTL bonoimm) to give effect to bonorum possessio, for the sake of those who, with- out being bonorum posstssores, had ample means of enforcing their rights.' This consideration is strengthened hy the fact that it was not the grant of bonorum possessio by which the Praetor dispossessed the legal heir. That grant had no such effect. I'rom the passages given above, it appears that bonorum possessio might carry nothing with it {sine re). The legal heir was not defeated by such a grant, but by the denial of his petitio hereditatis. It was only when the Praetor boldly permitted a bonorum possessor to set up the plea of bad faith (exceptio doli mali) against the legal heir, that the latter was deprived of his legal rights. Two centuries before Cicero, the Praetor Peregrinus was appointed, and must have had constant occasion to settle disputes in which the succession to a percrjrinns was in question. The probability, therefore, is that long before the Praetor ventured to alter the laws of inheritance, the grant of bonorum possessio in the casp of aliens was of common occurrence ; and, inasmuch as the Praetorian remedies were generally more convenient than the old procedure, we can have no difficulty in believing that even heirs-at-law would resort to the newer and more beneficial remedy. Gains (3, 34) says that frequently the heres asked for bonorum possessio for the purpose of availing himself of the interdict Quorum J3onorwp, and he promises to state at a later stage the reasons for his preference. Unluckily he does not redeem his promise, but the fact remains that, as might be expected, heredes did sometimes take out a Prastorian title, although they had, as heredes, a complete remedy by the jus civile. If the introduction of bonoi^m possessio is to be ascribed to the necessities of the peregrini, we can more readily understand the toleration that was shown to the Praetor's interference with the laws of succession. Such interference was certainly an extraordinary stretch of equitable jurisdiction, though Niebuhr goes too far in asserting its impossibility. " That any magistrate should have been entitled to introduce rules of succession tending to undermine those which were established by law, is a thing so monstrous, th.it no man of sense can deem it possible, if he will only attempt to conceive it in practice.'' The supposition would be monstrous, if we supposed that the edict was introduced all at once in the shape in which we find it in the time of Hadrian ; but the final result was reached by small and almost imperceptible steps. When the Praetor first granted bonorum possessio of the property of a peregrinus, he had no thought of interfering with the civil law. Presently legal heirs asked the benefit of the same procedure, and there was no reason why it should be refused. By-and- by the Praetor granted this bonoi-um possessio to cognati, without any intention of depriving the legal heirs, who retained at first an unqualified right to oust the bonorum possessor. By degrees, in accordance with the urgent requirements of the general sentiment, the Praetor refused in certain cases to allow the legal heir to oust the bonorum possessor. We see the process exemplified in the history of testaments. A Eoman will required to be made by mancipatio. A case occurred in which a will was made, but through some trifling informality, the mancipatio was not effective. The Praetor granted bonorum possessio to the heirs named in the will. Then the heirs 06 intestato sued on the ground that the deceased died intestate. The Prsetor did not at first venture to deprive them of their rights , unless they were persons distantly related to the deceased. From this modest beginning, what ultimately became the written will of the Eoman law took its rise. If this view be correct, bonorum po.^scssio can 1 This reasoning is not conclusive with those whrf) ilold that bonorum possessio was oi-iffinally nothing move than the interim possession given to one of two hostile claimants in a suit for an in- heritance; but this suggestion appears weak and ill-supported. 848 INTESTATE SUCCESSION. hardly be explained in a satisfactory manner by confining our attention to the re- quirements of citizens. For them it was superiiuous. But if we loolc to the circum- stances of the peregrini, a satisfactory account can be- given both of the origin and development of bonorum possessio in reference' to citizens ;■ and an additional illustra- tion is afforded of the manner in which the- Roman law was improved owing, to the presence throughout Roman history of a large alien population, va, Rome.. Defects in the law of the XII Tables.. Here end the rules for the inheritances, of freeborn persons- tfiat die intestate under the statute of the XII Tables-. How strict that law was,, may- be clearly understood. (G. j, 18.) The moment they are emancipated',, descendants have no right to an ascendant's inheritance- under that statute, because they have ceased to be sui heredis. (G. 3, rg.) The rule of law is the same if children are not in \h.& j/ffiesias< of their father, because although they as well as he have been presented with Roman citizenship, yet they have not beeni brought by the Emperor under their iaXh&ii's potestas^ (G. 5, 20..) Agnates, again, that have undergone- capitis deminutio, are not admitted under that statute to the inheritance ; because the- name of agnation is. destroyed by such a change of status. (G.. 3, 21.,) Again, if the nearest agnate does not enter on the inheritancci the: following is not admitted any the more by the- statutory rules. o£ law. (G. 3, 22.) All female agnates, again, that are- outside the cTegree of persons of ther same blood [cmisangninei), have no right under the statute. (G.. 3,. 23^;) And similarly, kinsfolk are not admitted that are' allied only by a re- lationship through persons of the female sex. So. far does this go, that not even between a mother and her son, or daughter is any right tof take an inheritance either way open ; except, indeed, when by an in- manum- conventio the rights of persons of the same blood have been established between them. (G. 3, 24.)' But these unfairnesses in the law hays' been- amended by the- Pi-setor's edict. (G. 3, 25.) These defects-- (excepting- that regarding- "wbm-en' agnates, which was introduced after the lex Voconia) may be- considered as merely examples of one defect— namely, that the- law of the XII Tables did mot recognise the tie of blood.. The edict of the Prffitor partly altered the- classes as- arranged by the- XII Tables, and partly added to them. By the XII Tables. By the Puffitori'an Edict. 1. Sui Aeredes correspond to 1. Children {unde libcri). 2. Agnati „ 2. Statutory heirs (M« I3-) All these were the views adopted in old times ; but they have received some amendment from our constitution laid down in regard to persons given in adoption to others by the fathers to whom they were born. Some cases, indeed, we have found, in which sons lost the right of succeeding to their ascendants by birth, by reason of their adoption ; and then, as the adoption was easily undone by emancipation, were called to succeed to neither father. This, as usual, we have corrected by writing a constitution, in which we have determined, that when an ascendant by birth gives his son to another to be adopted, all the son's rights are to be preserved unim- paired, just as if he had still remained in the potestas of his father by birth, and no adoption at all had followed. To this there is, in one event an exception— he can, in case of intestacy, come to succeed his adopted father. But if he makes a will, then, neither by the jus civile nor by the Praetorian law can the adopted son follow up anything from his inheritance either FATHERS AND CHILDREN. 853 by claiming bo?ioi-um fossessio contrary to the terms of the will, or by starting a complaint against the will as undutiful. For no necessity is laid on the father by adoption, either to appoint him heir or to disinherit him, inasmuch as there is no tie of birth to couple them. Even if a man has been adopted under the Senatus Consulticm Sabi7iianuin from among three sons, he has no rights ; for in a case of this sort no fourth share is preserved to him, and no action is open to him to follow it up. But by our constitution an exception is made in the case of a person that an ascendant by birth has taken up to be adopted ; for since both rights, by birth as well as by statute, meet in such a person, we have preserved the early rights for such an adoption, just as if a paterfamilias has given himself to be adopted by arrogatio. All this specially, and in detail, can be gathered from the tenor of the aforesaid constitution. (J. 3, i, 14.) The Senatus ConsuHum Sahinianum is supposed to have been passed in the reign of Marcus Aurelius. It provided that when a man had adopted one of three sons living under the potestas of their father, he must leave to that adopted son one-fourth of his goods. If he did not, the son so adopted {ex tribus marihus) could recover this fourth against the heirs appointed by will. (Theoph. J. 3, 1, 14.) Why this was con- fined to a son adopted from among three males, we are not told. The Senatus Consvltum was repealed in favour of the provisions introduced by Justinian. 2. Succession of father to children given in adoption. In this case the father was not a manumitter, therefore not a patron. The probabiHty, then, is that he succeeded only as a cognate in the third class, instead of coming immediately after the children of the adopted son. But by Justinian's constitution, adoption ceased to deprive the natural father of the potestas. III. Succession of father to children under poiesfas. When children under potestas were allowed to hold separate property (pecuUum castrense and quasi castrense), the order of succession was as follows : — (1) The children of deceased ; (2) the brothers; and (3) the father by virtue of his potestas. (J. 2, 12, pr.) As we have seen, the next property over which children acquired some power, was that which they obtained through their mother or her family {bona materna), when the rights of the paterfamilias were confined to a mere usufruct. His rights of succession were similarly restricted by Valentinian, Leo, and Anthemius, and Justinian. (C. 6, 61, 3 ; C. 6, 61, 4 ; C. 6, 59, 11.) The order was as follows : — (1) Children and descendants of deceased son ; (2) brothers and sisters of the same or different fathers; and (3) the father or other male ascendant. Finally, when Justinian extended the rule at first confined to bona materna to all property over which he gave the father only a usufruct, he enacted that the same order of succession should be observed. (C. 6, 61, 6, 1.) 854 INTESTATE SUCCESSION. B. — Grandfathers and Grandchildren. I. Succession of grandchildren to grandfathers. 1. When the grandson is under the potestas of his grand- father, and his own father is emancipated, no question arises ; children born to the emancipated son after the emancipation have a right to succeed their grandfather. (D. 38, 6, 5, 1.) Thus there is no difficulty in regard to descendants through males, whether they or their fathers were actually under the potestas of the ancestor, or were released from it. 2. Grandchildren through females were at first admitted simply as cognates in the third degree. Antiquity, in its greater liking for those born from males, used to call grandsons or granddaughters descended from the male sex only to succeed as suz heredes, and preferred them to the rights of agnates. But grandsons born from daughters, and great-grandsons born from granddaughters, it reckoned as mere kinsmen ; and after the line of agnates used to call them to succeed to a grandfather or great-grandfather on the mother's side, or to a grandmother or great-grandmother on either the father's side or the mother's side. But the former emperors could not bear to leave such a wrong against nature without satisfactory amendment. The name, they said, of grandson or great-grandson is common to both — to the descendants of females as well as of males ; they gave them, therefore, the same degree and order of succession. But that there may be something more for those that are fortified by the vote not only of nature, but of the old law, the share of the grandsons or granddaughters and so on, of whom we have spoken above, must, they have held, be lessened a little. They receive, therefore, a third less than their mother or grandmother would have received, or than their father or grandfather on either the father's or the mother's side would have received, when it is a woman that is dead, and whose inheritance is in question. Further, if those enter, although they are alone, the Emperors in no case called in the agnates. Again, as the statute of the XII Tables, when a son is dead, calls the grandsons or granddaughters, or the great- grandsons and great-granddaughters, in room of their father, to succeed their grandfather, so the imperial arrangements call them in room of their mother or grandmother, but with their share lessened by a third, as has already been remarked. (J. 3, i, 15.) Some doubt, however, still remained as to the respective rights of the agnates and the grandsons of whom we have spoken, as the agnates claimed for themselves a fourth of the substance of the deceased by authority of a certain constitution. We, therefore, have set aside the constitution of which we speak from our Code, and have not allowed it to be inserted in our Code from that of Theodosius. By a constitution we have published, moreover, we have withdrawn from it all its legal effect, and have enacted that when such grandsons by a daughter, or great-grandsons by a granddaughter, and so on, survive, the agnates can claim for themselves no share in the succes- sion to the dead. For we would not have those that come in collaterally preferred to descendants in the direct line of rights. This constitution too, GRANDFATHERS AND GRANDCHILDREN. 855 of ours, is by its own strength to hold both in former times and now, so we enact. As, however, in regard to the respective rights of sons and grand- sons by a son, antiquity determined that the inheritance should be por- tioned out by counting stocks not heads ; so in like manner we order the dis- tribution to be made between sons and grandsons by a daughter, or between all grandsons and granddaughters and other persons successively. The result is, that both offsprings obtain the portion of their mother or father or of their grandmother or grandfather without any lessening. If, perchance, on the one side, there are one or two, on the other three or four, then the one or two will have one-half, and the other three or four the other half of the inheritance. (J. 3, i, 16.) II. Succession by grandfather. If a grandfather emancipated his grandchild, he succeeded as quasi-patron; if not, and the child were given in adoption, his rights, according to the laws of Justinian, were unimpaired. If the child died under the potestas, the grandfather succeeded to the peculium castrense as owner of it, and to all the other property, in the new law of Justinian after the child's father. C. — Mothers and Children. I. Succession of mothers. There are, further, some degrees besides that the Prsetor makes in giving bonorum possessio, his aim being that no one should die without a successor. Of these we did not treat in these Commentaries, and that on purpose ; because we have unfolded the whole law on this subject in special commen- taries. (G. 3, 33, as restored.) This only, therefore, it is enough to call attention to, that although in statutory inheritances kinship alone, by the statute of the XII Tables, helped no one to take an inheritance, so that even a mother would under the statute have no right at all in the goods of her children, unless by passing z>z manum she had obtained the rights due to one of the same blood .... after her he calls the sister of the deceased, if of the same blood, and the wife that had passed into his manus. (G. 3, 33 A, as restored.) The statute of the XII Tables used law so strict, and went so far in pre- ferring those born from males and in driving off those allied to them by a relationship through the female sex, that not even in the case of a mother on the one hand, and her son or daughter on the other, had either any right to take an inheritance from the other. But the Praetors, on the ground of their nearness as kinsfolk, used to call those persons to the succession by the bonorum possessio they gave them, called unde cognati (for kinsfolk). (J. 3, 3, pr-) This narrowness of the law was afterwards amended. The late Emperor Claudius was the first to bestow on a mother, to comfort her for the children she had lost, their statutory inheritance. (J. 3, 3, i.) This was done apparently only in a single instance. Afterwards, by the Senatus Consultum Tertullianum (a.D. 158), passed in the time of the late Emperor Hadrian, very full provision was made about 856 INTESTATE SUCCESSION. , the mother's sad succession, but no such succession was be[Stowed on the grandmother. The result is, that a freeborn mother, having thip special rights granted to the mother of three children {jus trium liberorum), or a freed- woman that has the same rights because of her four children, is to be admitted to the goods of sons or daughters that have died Intestate, and that although they are in the potestas of an ascendant, provided, of course, that when she is subject to legal rights on the part of another, that other orders her to enter. (J. 3, 3, 2.) 1 But we, by a constitution placed in the Code adorned with ourl name, have thought right to come to the mother's aid ; looking to what natur^ demands, and to the child-bearing and the risk, and to the death that often\coraes on mothers in such a case. We have held it, therefore, a wrong to natbral affec- tion that a chance mishap should be admitted to their hurt. If a'freeborn woman had not born three children, or a freedwoman four, she did, not de- serve to be defrauded of the succession to her children. What sin has she done in not bearing many children, but only a few ? We have, tlierefore, given full statutory rights to mothers, whether freeborn or freedlwomen, although they have not been in labour with three or four, but with him only or with her that has been cut off by death ; and so they are to be called to the statutory succession to their children. (J. 3, 3, 4.) But as we have looked out for the mothers, so they ought to tak^ thought for their offspring. They are to know, therefore, that if they have (neglected to ask, within a year, for tutores to their children, either at first or in! the room of one that has been removed or excused, they shall be repelled djeservedly from succeeding to their children under puberty at their death. (J. 3, 3, 6.) Although it is uncertain who is the father of a son or daughter, its mother can be admitted to its goods under the Senatus Consultum Tertu^lianum. (J. 3, 3, 7-) This does not apply to a child born in slavery and manumitted. (D. 38,(17, 2, 2.) \ The order of succession. ^ To the deceased's mother his descendants are preferred if they are sui heredes, or in the position of such, whether they are in the first degree or in one more remote. Nay, even when it is her own daughter that is dead, her son or daughter is opposed, under the constitutions, to the mother of the deceased ; that is, the grandmother. The father, too, of both, but not the grandfather or great-grandfather also, is put before the mother, when (that is) it is between them alone that the inheritance is in dispute. A brother also of the same blood, whether a son's child or a daughter's, shuts out the mother ; but a sister of the same blood was admitted equally with the mother. If, however, the brother and sister were of the same blood, and the mother honoured by having children, then the brother shuts out the mother ; but the inheritance was shared equally by the brother and sister. (J- 3- 3- 3-) Changes by Justinian. The earlier constitutions that searched out the statutory rights of succes- sion in part aided the mother, in part weighed her down. To the entire inheritance they did not call her, but in certain cases took away from her a MOTHERS AND CHILDREN. 857 third, and gave it to certain statutory persons, while in otliers they did just the contrary. We therefore tliought it best to talce the straightforward and simple way, to prefer tlie mother to all statutory persons, and to allow her to receive the succession to her sons without any deduction. The persons of the brother and sister are, however, excepted, whether they are of the same blood or have the rights of kinsfolk only. As, therefore, we have put the mother before the whole of the rest of the order settled by statute, so, too, we call all brothers and sisters, whether statutory or not, to take inheritances at once. Provided always that if there survive sisters alone (kinswomen or agnates), and the mother of the deceased man or woman, then the mother is to have half, and all the sisters the other half; but if there survive the mother and a brother, or brothers either alone or with sisters as well, and whether they have statutory rights or those of kinsfolk only, when a man or woman dies intestate, then the inheritance is to be portioned out by counting heads {fn capita). (J. 3, 3, 5.) II. Succession of children to mothers. {Senatus Consultum Orphitianum, A.D. 178.) On the contrary, again, the admission of children to the goods of their intestate mothers was brought about by the Senatus Consultum Orphitianiun, passed in the consulship of Orphitus and Rufus, in the time of the late Emperor Marcus. By it the statutory inheritance was given both to the son and to the daughter, even although subjected to the power of another ; and they are preferred both to those of the same blood and to the agnates of their deceased mother. (J. 3, 4, pr.) Last of all, we must know that even children begotten of a mother that is a public woman are admitted to the mother's inheritance under this Senatus Consultum. (J. 3, 4, 3.) We must know, too, that successions of this sort bestowed by the Senatus Considta Tertullianum and Orphitianum are not destroyed by capitis demi- nutio. The rule is that new statutory inheritances are not ruined by capitis deminutio, but those only that are bestowed under the statute of the XII Tables. (J. 3. 4, 2.) Capitis deminutio affects agnation only. The statute, therefore, ranks the heirs with cognates, while giving them a preference to certain agnates. III. Succession of grandchildren to grandmother. Under this Senatus Consultum grandsons were not called to succeed to a grandmother by statutory right. Afterwards this was amended by the imperial constitutions, so that, like sons and daughters, grandsons and granddaughters too should be called. (J. 3, 4, i.) D. — The Succession of Agnates. Gains points out several defects in the law of the XII Tables in regard to the succession of the agnati. Agnates that have undergone capitis deminutio the Praetor calls — not in the second degree after stci heredes; not, that is, in the degree in which by statute they would be called if they had not undergone capitis deminutio j — but in the third degree, on the ground that they are near relations. Their statutory rights, indeed, they have lost by their capitis deminutio, but those 858 INTESTATE SUCCESSION. of kinship {cognatio) they retain. If, therefore, there is any other that has his rights as an agnate unimpaired, he will be preferred, although he is in a degree further off. (G. 3, 27.) In this part kinship by birth is looked to. Agnates that have undergone capitis deminutio, and their offspring, are under the statute of the XII Tables held not to be among the statutory successors, but are called in by the Prffitor in the third degree. (J. 3, 5, i.) 1. Emancipated brothers or sisters were exempted from the above rule. To this there is one exception only. A brother and sister that have been emancipated, but not their descendants, are by the lex Anastasiana called, along with brothers whose rights are fully established as unimpaired, to the statutory inheritance of a brother or a sister. They do not, however, take equal shares ; but there is a certain deduction, as may be easily gathered from the words of the constitution itself But to other agnates of a lower degree, although these have not undergone capitis deminutio^ they are pre- ferred, and beyond a doubt to kinsfolk. (J. 3, 5, i.) This law was passed a.d. 603, and applied both to those out of the potestas suc- ceeding those under it, and to those in the potestas succeeding those out of it, and it required emancipated brothers succeeding with those in potestas to bring their separate property into hotchpot. (C. 6, 58, 11.) Justinian (A.D. 532) observes that a doubt had arisen as to the rival claims of brothers and sisters and the father of the deceased, which doubt he resolved by enacting that the father should have a usufruct, and the brothers and sisters the corpus, of the property of the deceased. (C. 6, 58, 13.) 2. Disabilities of women agnates. So far as women are concerned in this branch of the law, one view is held with regard to taking their inheritances, another with regard to their taking others' inheritances. Women's inheritances come back to us by the right of agnation, just as do men's ; but our inheritances do not belong to women outside the degree of persons of the same blood iconsanguinei). A sister, therefore, is statutory heir to a brother or sister ; but an aunt on the father's side, and a brother's daughter, cannot be statutory heirs. A mother, too, or stepmother, that by passing in manum has gained at our father's hands a daughter's rights, stands to us in the position of a sister. (G. 3, 14.) This disability was not imposed by the XII Tables, but was established by the jurisconsults, who thought that inasmuch as the lex Voconia imposed a hmit to the appointment of women as heirs, there ought to be similar restrictions on their succes- sion to persons dying intestate. (Paul, Sent. 4, 8, 22.) Female agnates that are outside the degree of persons of the same blood are called in the third degree ; that is, if there is neither a suus Acres nor any agnate. (G. 3, 29.) But among males, by the right of agnation, an inheritance may be taken either by those or from those even in the most remote degree. As for women, however, it was held that they could take an inheritance only by the right of sameness of blood, and therefore if they were sisters, but not if they were further off : while males would be admitted to the inheritances of women even if they were in the most remote degree. On this ground the inherit- ENLARGEMENT OF AGNATIC SUCCESSION. 859 ance of your brother's daughter, or of the daughter of your uncle or aunt on the father's side, belonged to you ; but yours did not belong to them. This was so settled because it seemed more advantageous that rights should be so settled as that inheritances should for the most part meet and flow to males. (J. 3, 2, 3.) Undoubtedly it was unfair that they should be altogether repelled as if outsiders. The Praetor, therefore, used to admit them to bonorum pos- sessio by the part of his edict in which he promises this on account of near relationship. Under this they are admitted, however, only if there is no agnate and no nearer kinsman to come in before them. (J. 3, 2, 3.) This the statute of the XII tables did not in any way bring in. It embraced simplicity, which the statutes love, and called in like manner all agnates, whether men or women, of whatever degree, just like sui heredes, to succeed to one another. But the jurisprudence of an intermediate time, later than the statute of the XII Tables yet earlier than the imperial arrangements, with a certain curious subtlety brought in the distinction aforesaid, and repelled women altogether from succeeding to agnates, while every other form of succession was unknown. But afterwards the Prsetors, step by step setting right the harshness of the jus civile, or filling up what was wanting with a humane design, added another degree to their edicts, and brought in the line of kinsfolk on account of their near relationship. Thus they aided women by the bonorum possessio, and promised them that form of it called unde cognati (for kinsfolk). (J. 3, 2, 3 A.) We, however, follow the statute of the XII Tables, and preserve its traces in this respect. We praise the Praetors, indeed, for their humanity ; but we do not find that their remedy fully meets the case. Why, indeed, when they meet in one and the same degree by birth, and when the titles by agnation are settled with impartial balance alike for males and for females, were males allowed to come in and succeed to all agnates, while of the female agnates to none at all except to a sister only was a way open to enter upon the succession to agnates .' Everything, therefore, we have brought back in full, and have made precisely the same arrangements as were laid down by the XII Tables. By our constitution, then, we have enacted that all statutory heirs — descendants, that is, through males, whether men or women — are to be called in like manner to the rights of statutory succession in case of in- testacy, according to the privilege of their degree ; and that women are not to be shut out because they have not, like sisters, the rights due to same- ness of blood. (J. 3, 2, 3 B.) This addition, too, we have thought fit to make to our constitution ; one degree only we have transferred from the right of kinship to statutory succession. Not only, therefore, a brother's son and daughter, according to what we have just determined, are to be called to succeed to their uncle on the father's side, but the son and daughter also of a sister of the same blood, or of a sister by the same mother — alone, however, and not accompanied by the persons that follow next — are to come to the rights of their uncle on the mother's side. If, then, a man dies that is uncle on the father's side to his brother's sons, and uncle on the mother's side to his sister's children, on both sides alike they will succeed to him just as if all were descended from males, and came by statutory right. It is taken for granted, of course, that the brother and sister are not still alive. If they come first and accept the 86o INTESTATE SUCCESSION. succession, the other degrees remain altogether set aside, since the inherit- ance is to be divided not by stocks but by counting heads. (J. 3, 2, 4.) 3. Consanguineous relatives — i.e., brothers and sisters of the same father, whether of the same mother or not (Ulp. Frag. 26, 1) — were preferred to other agnates of equal proximity to the deceased. (D. 38, 16, 1, 9.) This is, however, only a pre- ference (to grandfathers, and) uterine brothers and sisters, i.e., those having the same mother, but not the same father. 4. Peculiarity as to succession of agnati. The rule of law is the same, as some think, in the case of the agnate that, when the nearest agnate passes by the inheritance, is none the more admitted by statutory right. There are others, however, that think he is called in tlie same degree by the Prstor in which by statute the inheritance is given to the agnates. (G. 3, 28.) It was held, moreover, that in that way of taking inheritances there was no succession ; that is, that although the nearest agnate, who, according to what we have said, is called to the inheritance, either despises the inheritance or before entry dies, those that come next are none the more admitted by statutory right. This again the Prjetors corrected, but their law was incom- plete. They did not leave them entirely without a help, but they called them in their order as kinsmen, taking for granted their rights as agnates were wholly shut off from them. But we, in our desire that nothing should be wanting to make the law as complete as possible, by our constitution that at the promptings of humanity we have put forth on the rights of patrons, have enacted that the succession to the inheritances of agnates must not be denied them. It was, indeed, sufficiently absurd that what was opened to kinsfolk by the Praetor should remain shut to agnates, especially since in regard to the burden of acting as iiiiores, when the first degree failed, the next came in ; and what held good in the case of a burden, was not allowed in the case of gain. (J. 3, 2, 7.) V. — Collateral Cognates. 1. Position of the blood relatives of the deceased. The cases of bonorum possessio that arise under a will are these : — First, that which is given the children that are passed over ; this is called contra tabulas (contrary to the terms of the will). Second, that which the Praetor promises to all legally-appointed heirs ; it is called, therefore, secundum tabulas (according to the terms of the will). After he spoke first about wills he passed on to cases of intestacy. (i.) He gives to sui heredes, and those that under the Praetor's edict are reckoned along with these, bonorum possesszo; this is called unde liberi (for descendants). (2.) To statutory heirs (Unde legitimi). (3.) To the ten persons he preferred to an outside manumitter {Unde decern personae), namely these: — The father, the mother, the grandfather, the grandmother, both on the father's side and on the mother's side ; the son also, the daughter, the grandson, the granddaughter, both by a son and COGNATES. 86 1 by a daughter ; the brother, the sister, whether of the same blood or by the same mother. (4.) To the nearest kinsfolk {Unde cognatt). (5.) To some one as belonging to that household (Turn quern ex familid). (6.) To the patron (male or female), and their descendants and ascendants {Unde liberi patroni patronaeque et parentes eorunt). (7.) To the husband and wife {Unde vir et uxor). (8.) 'To\h&xaz.xasxa\\X^r'%\iui%ioi^(Undecognatiinanuinissoris). (J. 3,9,3-) In this Table, Nos. 5, 6, 8 belong solely to the succession of freedmen, and No. 3 has been already explained. Hence the cognates take the third rank. After the sui heredes and those that the Prsetor and the constitutions call among them, and after the statutory heirs (among whom are reckoned the agnates and those raised up to their position both by the Senatus Consulta above named, and by our constitution), the Praetor calls the nearest kinsmen. (J- 3, 5, pr.) In the same degree are called also those persons that are united through females. (G. 3, 30.) Those kinsmen, too, that are allied through females collaterally, the Praetor calls to the succession in the third degree, on account of near rela- tionship. (J. 3, 5, 2.) Preference of agnates. If the sui heredes are out of the way, and those that we have said are called among them, an agnate that has his right as such unimpaired, although in a very remote degree, is for the most part preferred to a nearer kinsman. Thus the grandson or great-grandson of an uncle on the father's side is preferred to an uncle or aunt on the mother's side. Whenever, therefore, we say either that he is preferred that holds the nearer degree of kinship, or that those are called equally that are kinsmen, it must always be understood that in these cases there is no one to be preferred, either by the rights of sui heredes and those that come among them, or by the rights of agnates, according to what we have laid down. A brother and sister that have been emancipated are, however, exceptions ; for they are called to suc- ceed to brothers or sisters ; and even although they have undergone capitis deminutio. they are yet preferred to the other agnates of a degree further off. (J. 3, 6, 12.) In its strict use, the term consanguinitas is applied only to children that had the same father. (D. 38, 16, 1, 10.) But it is sometimes used for persons simply related by blood. Persons adopted into a family were considered to be of the same blood {consan- guinei) as those under the potestas of the deceased, or his posthumous children. (C. 38, 16, 1, 11.) 2. The tie of cognation is not dependent on the legal char- acter of the union by which it has been formed. Children begotten by a mother that is a public woman have no agnate. This is plain, for agnation turns on the father, kinship on the mother, and such children are understood to have no father. On the same principle, it 862 INTESTATE SUCCESSION. appears that they cannot even be of the same blood as one another ; for sameness of blood (consanguinitas) is a form of agnation. They are there- fore only kinsfolk to one another, just as they are to their mother's kinsfolk. All such persons may avail themselves of bonorum possessio under that part of the edict in which kinsfolk are called on account of their near relation- ship. (J._ 3, 5, 4.) This is certain, that to kinship between slaves, that part of the edict in which bonorum possessio on account of near relationship is promised, does not apply, for no ancient law took such kinship into account. But by a con- stitution of ours, made on behalf of the rights of patrons (a branch of law, even up to our time, dark enough, and full of clouds, and on every hand con- fused), we, prompted by humanity, have made this concession : — If a man settled in such a union as a slave can form {servile consortium) has a child or children, either by a freewoman or by a woman in the position of a slave ; or if, on the contrary, a. slavewoman has by a freeman, or by a slave, chil- dren of whichever sex ; and if now the parents come to be free, and the chil- dren that are born of a slave's womb have earned their freedom, or in case the women were free, and the men while in slavery had them, and they afterwards came to be free, — then all the children are to succeed to their father or mother, and the rights of patrons in this respect are to lie dormant. These children, indeed, we have called to succeed not only to their ascendants, but also each to the other. And under that statute we call them specially, so that whether these alone are to be found that have been born in slavery, and have after- wards been manumitted, or whether they come in along with others that have been conceived after their parents were free, or whether or not they are by the same mother or the same father, or by another marriage, they are to succeed like those that have been begotten in lawful marriage. (J. 3, 6, 10.) 3. Order of succession among cognates. To recall, therefore, all we have now laid down, it is evident that those that hold an equal degree of kinship are not always equally called ; and more than that, it is evident that even the nearer kinsman is not always preferred. Sui heredes come first, and those we have enumerated among them. Now it is evident that a great-grandson or great-great-grandson of the deceased is preferred to the deceased's brother or father or mother ; although in all other respects, as we have laid down above, the father and mother hold the first degree of kinship, the brother the second, while the great-grandson is a kinsman in the third degree, and the great-great-grandson in the fourth. It makes no difference, too, whether he was in the power of the person that dies or not, or that he was either emancipated or the offspring of an emanci- pated person or of a female. (J. 3, 6, 11.) 4. Limits of cognation. Here, too, we must necessarily be reminded that by the rights of agnation anyone may be admitted to the inheritance even if he is in the tenth degree ; and this whether we ask about the statute of the XII Tables or about the edict in which the PrKtor promises that he will give the statutory heirs bonorum possessio. But bonorum possessio on the ground of near relationship the Prastor promises only up to the sixth degree of kinship, or in the seventh to the son or daughter of a second cousin. (J. 3, 5, 5.) Justinian's reform. ^^63 F. — Husband and Wife. When the wife was subject to the manus of her husband, she succeeded along with the children of the marriage as her hus- band's daughter. Her husband could not be her successor, for the sufficient reason that in her lifetime he was the sole owner of all the property accruing to her, and she had therefore nothing to leave. It is significant of the wide gulf separating marriage without manus from marriage with manus, that in the first the Avife succeeded only after every species of heir was exhausted ; in the latter, she took her share in the front rank. If not in manu, she takes in preference only to the Exchequer {Fiscus). (C. (3, 18, 1.) The other case of bonorum possessio called mide vir et uxor (for husband and wife), which in the old order was put ninth, we have preserved in all its vigour, and have put in a higher place — namely, the sixth. The tenth in the old order, the unde cognati manumissoris (for the manumitter's kin), for the reasons fully stated, has been taken away. There remain, therefore, only six ordinary cases of bo7iorum possessio in full vigour and strength. (J. 3, 9.7-) The relation of husband and wife -fits the only instance of aflSnity recognised by tke Roman law as a reason for intestate succession. A constitution, whose author is unknown, but which was abrogated by Theodosius and Valentinian (C. Th. 5, J, 9), gave to a spouse the succession to a spouse dying intestate, even when there were relatives [coynati). By Nov, 53, 6, a wife without a dowry succeeded her husband, even when there were children, to the extent of one-fourth ; but whatever she received as a gift was to reckon as part of the fourth. A needy husband was allowed to succeed to his wife in the same manner. This was modified slightly by Nov. 117, 5, which provided that when there were more than three children the wife should get an equal share with them, instead of a fourth ; and, moreover, that she should have only a usufruct, the ownership remaining in the children ; but if there were no children, she should have her fourth in fuU ownership. Third Period.— The Novels 118 and 127. Justinian observes with truth, in his introduction to the celebrated 118th Novel, that the law of intestate succession was complicated and perplexing. It was not based consistently either upon agnation or cognation ; it was not accommodated either to the artificial or to the natural family ; and the long series of changes introduced by Praetors or Emperors, while serving to bring the law more and more into harmony with the feelings of later times, added to the complexity and con- fusion of the subject. The title of Justinian's Novel, " De Agna- torum Jure Sublato," is the keynote of the reform. Persons that are at the same time agnates and cognates shall succeed as cog- 864 INTESTATE SUCCESSION. nates simply. (Nov. 118, 4.) Indeed, there was only one case in which, after the reforms of Justinian, a person could be an agnate who was not also a cognate ; and that was in the case of arrogation, in which the ancient inftdents were expressly reserved (p. 209). It can hardly be supposed that the general language of Chap. IV. (of ] 18th Nov.) was meant to deprive persons who were arrogated of their rights of succession, or adopted children of that simple right of succession ah intes- tato, which (after Justinian's reform) was the sole effect of adoption. It is to be observed also, that none were to enjoy the benefits of the constitution except those that held the Catholic faith. (Nov. 118, 6.) With these qualifications, Justinian recognises no title to succession, except the tie of blood. He abrogates the whole of the existing law, such as we find it in the Institutes (Nov. 118, pr.), and recognises succession according to the following classes — ascendants, descendants, and collaterals. I. Descendants are preferred to ascendants and collaterals. They are preferred to ascendants even when the deceased is tinder potestas, in respect of the inheritable property left by deceased. 1. The children of the deceased, whether sons or daughters, take equal shares per capita. 2. Grandchildren take equally the portion that their parent would have taken if alive. So the grandchildren of a son or daughter take equally the share of that son or daughter. This succession is called per stirpes. (Nov. 118, 1.) II. If there are no descendants, the ascendants exclude all collaterals, except brothers or sisters of the whole blood. (Nov. 118, 2.) 1. If there are several ascendants, the nearer exclude the more remote, whether they are male or female, on the father's side or on the mother's. 2. If there are two or more ascendants of the same degree, they divide the inheritance equally, but so that the ancestors on the father's side shall have one-half of the inheritance, and the ancestors on the mother's side the other half, irrespective of their numbers. 3. If there are sisters or brothers of the whole blood, they succeed along with the ascendants nearest in degree. If the ascendants are the father or mother of the deceased, Justinian's reform. 865 the inheritance is to be divided among the brothers and sisters, father and mother, per capita, so that each shall have an equal share ; and in this case the parents shall not be entitled to the usufruct of the share obtained by the- brothers or sisters. 4 If there are children of any sister or brother of the full blood,, they take- the brother's- or sister's share; (Nov.. 1"27, 1.) III. If there are- no. descendants or- ascendants, the collaterals take in the- following order (Nov., 118, 4) :■ — 1.. Brothers and sisters of the whole blood' — v.b., ha-«;ing the same- father and mother — exclude- all other collaterals,. The children of any such brother or sister (deceased); ob- tain the share- of such brother- or sister, and are preferred, like their parent, to all other eollaterals.. 2.. If there is no brother or sister of the whole- blood', or child of such brother or sister,, then the brothers and sisters of the' half-blood (i.e.,, having the same father but not the samfr mother,, or the same mother- and not the same father), are- preferred to all other collaterals.. The children of a brother or sister (deceased)- of the- half- blood are- entitled to the share of such brother- or sister.. 3. If there are no brothers or sisters, either of the wholte or half bloody-the other cognates succeed, the nearer in degree excluding the more remote,, and. those, of the same degree taking equal shares. The children of such a. deceased cognate do not take that Gognate-s share.. &aia maaries TitiuBj and Mas two sons, Maeviiis and Semproniiis.. By her second' marriage -with Aurelius, Gaia has a son Paulus. By a third marriage with Proculus, Gaia has a son Plautus. Sempronins dies intestate, and without descendants or ascendants. Who is his heir ? Maevius excludes Paulus and Plautus. Suppose- Maevius is- dead ; then Paulus and Plautus divide, the inheritance of Sempronius. equally between them. Titius and Gaius are-uteriiie brothers.. Titius and Sempronius are full brothers. Sempronius and Titius die, Sempronius leaving a son Plautus. If Titius haa no ascendant or descendant^.Plautus suoceede to the exLcluaion. of, Gaius., The Exchequer as Heir {Bona vacantiay By the lex Julia et Pdpia Poppaea it was enacted that if no one applied for the honorum possesmoj the- property of the deceased shouH go to the nation. (Ulp. Frag. 2&, 7.) In some cases the municipality — as Nice — enjoyed' the right of succession in preference- to the Fiscus. (Pliny, Epist. 10, 88.) So' the soldiers of a legion succeeded in preference to the 866 INTESTATE SUCCESSION. Fiscus to the property of a deceased comrade. (D. 28, 3, 6, 7 ; D. 40, 5, 4, 17; C. 6, 62,2.) The Curia had a hke privilege in respect of the property of decuriones. (C. Th. 5, 2, 1 ; C. 6, 62, 4.) Certain corporations also, as the food merchants (navicularii) and smiths, had the privilege of succeeding to their members in preference to the Exchequer. (C. 6, 62, 1 ; C. 6, 62, 5 ; Nov. 85.) So the goods of a monk or a priest went to the monastery or church in preference to the State. (C. 1, 3, 20.) The case is different with those that, when no heir appears, without tlie Prsetor's authority have taken possession of goods. Even these possessors, however, in old times, used to obtain the property before the /ex Julia. But this statute makes the goods escheats icaducd), and ordains that they shall become the People's, if the deceased has no heir and no bonoruin possessor. (G. 2, 150.) Second. — SUCCESSION to Freedmen. The succession to freedmen is hardly of sufficient interest to require a minute study, and it will be enough to consider the succession of patrons as presented to us by Gains, and after- wards by Justinian. I. — Succession to Freedmen (Roman Citizens). (I.) Succession to Freedmen in the time of Gaius. I. Male patron (patronus) to freedman (Kbertus). Let us now see about the goods of freedmen. In old times a freedman was allowed with impunity to pass his patron over in his will. The statute of the XI I Tables called a patron to the freedman's inheritance only if the freedman died intestate and left no suus heres. If, therefore, the freedman died intestate, but left a suus heres, the patron had no right over his goods. If, indeed, the suus heres he left was one of his children by birth, there seemed to be nothing to complain of ; but if the suus heres was an adopted son [or daughter, or wife in jnaiiii], it was manifestly unfair that the patron should have no right over and above. (J. 3, 7, pr. ; G. 3, 39-40.) For this reason, therefore, the Praetor's edict afterwards amended this unfairness of the law. By it, if the freedman made a will, he was ordered to make it so as to leave his patron half of his goods ; and if he left him either nothing or less than half, then the patron was given bonoruin possessio oi half, contrary to the terms of the will. If, again, the freedman died intestate leaving as suus heres an adopted son [or.'a wife iri his mantis, or a daughter- in-law that had been in , his son's manus\, the patron was given equally in opposition to them bonoruin possessio of half .The only help the freedman usually could avail himself of to shut out his patron was from his children by birth ; not only from those he had in his potestas at the time of his death, but also from those that were emancipated and given in adoption ; provided only that they were appointed heirs of some share, or that if FREEDMEN. 867 passed over, they had claimed under the edict bonorum possessio contrary to the terms of the will ; for if disinherited, they in no way repelled the patron (J- 3. 7, I ; G. 3, 4I-) Afterwards the lex Papia increased the rights of .patrons that had very wealthy freedmen. It provided that out of the goods of a freedman that left a patrimony of a hundred thousand sesterces (or more), and had less than three, children, whether he .made. a will or whether, he died intestate, one equal share should be due to the patron. If, therefore, a freedman left one son or daughter his heir, half was due to the patron, just as if he had died without any son or daughter. If he left two heirs, male or female, a third was due to the patron. If he left three, the.patron wasa'epelled. (J-.3,.7,'2 ; G. 3, 42.) II. Male.patron {patronus) to'freed woman '(ft'ier^a). In the case of freedwomen's goods. under the old, law, patrons suffered no wrong. For since they were in the statutory,- ^w/^/a of their patrons, they could not make a will unless the patron authorised it. If, then, he author- ised the making of a will, and had not as much left him as he wished, it was of himself he ought to complain, because he could have qbtained it from the freedwoman. If, again, he did not authorise it, he .with still greater safety took the inheritance at her death ; since a freedwoman could leave no, ,^uus heres who might repel the patron from laying claim to her goods, (G. \ 43, as restored.) By the old law, all women, were subject to the pei-petua tutela muUenwii p.' 727. But afterwards the lex Papia gave freedwomen, in right of having four children, freedom from their patron's lutela,- -znd so enabled them without the authority of a patron /ulor to make a will. It provided, accordingly, that in .proportion to the number of children the freedwoman had still alive, a share .the same as each of them had should be due to the patron of her goods,- contrary to the terms of the will. Ail her goods, too, he receives by legal interpreta:tion, since he comes in the place of children when she leaves no children. And if she dies intestate, her whole inheritance alvyays belongs to the patrop. (G. 3, 44.) ■ III. Succession of children. ,of male patron (patronus) to. freed- men and freed.women. All we have said of a patron we- are to understand of a patroft's son also ; and of his grandson by a, son, and of his great-grandson born to a grandson by a son. (G. 3, 45.) A patron's daughter, as also his ■ grafl-ddaughtei' by a son, and' his great- granddaughter born to a grandson by. a son, have the same rights as those given, to. the patron .by the statute of the XII Tables. The Prastor, how- ever, calls the patron's male descendants only. But the daughter, contrary to the terms of the freedman's will, or if he dies intestate, c^^n claim bonorum possessio of half in opposition tO;.an adopted. son, or a wife, or a daughter-in- law, if only she .gains this privilege, in right of having, three children under the lex Papiqj otherwise she has npt this right. (G. 3, 46.) But that out of 'the goods of her freedwoman that has four children the share of one child should be due her, is a privilege she does not obtain, as some think, in right of having children. If, however, the freedwoman dies 868 INTESTATE SUCCESSION. intestate, the words of the lexPapia make such a share due to her. If, again, the freedwoman makes a will before she dies, such rights are given the patron's daughter as have been given a patroness honoured by having children, so- that she will have rights quite the same as those a patron and his descendants have contrary to the terms of a freedman's will. That part of the- statute,, however, seems too heedlessly written. (G. 3,47-) IV. Succession-' of- female pa,tron {patrona), to freedman (libertusy. Patronesses of old,- before the lex Fapia, had this right only over the goods of freedmen, a right given to patrons too under the statute of the XII Tables. To them, indeed, the Prsetor refused to grant as to male patrons and their descendcnts, bonorum possessio of half,. contrary tO' the terms of the will in which they were passed over ;.or in case of intestacy, in opposition to an adopted son, awife, or a daughter-in-law.- (G. 3',-49.)'' But afterwards the lex- Papia gave a- freeborn patroness honoured by having two children, or a freedwoman that had three, very much the same rights that patrons have under the Prater's edict. To a freeborn patroness honoured in right of having three children it gave those rights that by the same statute have beengiven^a- patron ;-but onaipatroness-thatwas a freed- woman. he did not confer the same rights. (G. 3, 50.) V. Siiccessiou of female patron- (pat-rona) to freedwoman (libei'ta). So far as relates to tliie'goods of freedwomeM if they die ihfe.state, no new privilege- is given the patroness honoured by having children- under the lex Papia.. If,, therefore,. neither the patroness herself nor the freedwoman has undergone capitis deminutio under the statute- of the XII Tables, the inheritance belongs to her, and the frfeedwoman's descendants are shut out. This is- the law also,- even if the patroness- is not honoured by having chil- dren ;: for never,. as we have' said above, can women have asuus heres^ But if a capitis deminutio of either one or the others comes- in, then, again, the freedwoman's descendants shut out the patroness-.- Thereason is, that when the statutory right is cut off by the capitis-dejjiinutio, the result is that the freedwoman's descendants are preferred by the'right of kinship. (G. 3", 51.) When, again, a freedwoman dies- after making, a will, ai patroness not honoured by having children has no rights' contrary tO'the freedwoman's will. But a patroness that is honoured by having children has given her by the lex Papia the very same rights that a patron has under the- edict,, con- trary to- the terms of the will.. (G. 3, 5,2.). VT, Children of female patron {patrona)..' The same statute that gave rights to- a patroness, gave them also to her daughter if honoured by having children, and to a patron's son. But in- this case the right of even one son or daughter is- enough.. (G. 3, 53.-) Thus far have we touched on all theserights, but only so as to-point them out, as it were, with the finger.- Elsewhere- a more diligent interpretation, of them has been- set- forth- in a commentary on- this special subject. (G. 3, 54.) VII. More remote heirs of patrons. FREEDMEN. 869 From all this it is plain that outside heirs of patrons are far removed from all those rights of inheritance that are open to the patron, either over the goods of the intestate or contrary to the terms of the will. (G. 3, 48.) To a certain extent, bowevei:, the edict of the Piaator extended the area of succession. The relatives of the patron succeeded in the following order (Theoph. J. 3, 9, 1)-: — 1. When a freedman or freedwoman died intestate and child- less after the death of the patron, then .the agnates of the patron succeeded (^tiim quern -ex familia). 2. In default of these came the children or parents of a patron (patrontos, patrona). Theophilus explains this case as follows: — If the children or parents neglected 'to take as such after the children of the freedman {wide legitimi), and-the time for asking the honorum possessio had passed, and they had not asked under the immediately preceding head {turn quern ex familia), then either the patrons or their children or parents could come in under this second descviptioji — unde liberi patroni patron- aeque et parenies earum. 3. In default of all these, the -cognates of .the patron took, the nearer excluding the more remote. (II.) SimpliKcation of the law by Justiriiaij. But our constitution, which, that all may know it, we' have drawn up in the Greek tongue, handling the subject, compendiously, has defined the cases of this sort as follows : — If a freedman or freedwoman is worth less than one hundred aurei (minores centenanis sini), if their substance, that is, is less than this amount .in value — for such is the interpretation we piit on the sum in the cex Papz'a, counting one atireus equal to a. thousand sestertii — then the patron is to have no place in succession to them, provided they have made a will. But if they die intestate and leave ne descendant, then, the rights of the patron,. as they were under the statute of the XII Tables, our^constitution preserves entire. If, however, they are worth more, and have as heirs or bonorum possessores descendants, whether one or more, of whatever sex or degree, on 'these descendants we have devolved the succession to the ascen- dants, and have set aside all patrons and their offspring along with them. But if they die without descendants, and are further intestate, we have called the patrons and patronesses to the whole inheritance ; while if they have made a will and have passed by their patrons and patronesses, although they had no children, or had disinherited them if they had, or if it is a mother or grandfather on the mother's side that has passed them. over, so that their wills cannot be attacked as undutiful; — then under our constitu- tion, contrary to the terms of the will, they are to obtain not half, as formerly, but a third of the freedman's goods. If they have anything short of this, then under our constitution it is to be made up, if at any time a freedman or freedwoman has left them less than a third of their goods ; provided always that it shall be free from any burden, so that not even to the freed- 870 INTESTATE SUCCESSION. man's or freedwoman's descendants shall any legacies or trusts be made good from that part, but that all this burden shall fall upon the co-heirs. Many other cases, too, we have gathered up in the aforesaid constitution, that we saw clearly were necessary to the arrangement of such a branch of law. Under it, not only patrons and patronesses, but their descendants, and those, moreover, that come in collaterally up to the fifth degree, are called to succeed to freedmen, as may be understood from that constitution. Again, if the same patron or patroness, or two patrons or patronesses or more, have descendants, then the nearest is to be called to succeed to the freedman or freedwoman, and the succession is to be portioned out by counting heads not stocks, precisely in the same w'ay as in the case of those that come in- collaterally. Indeed, the rights of freeborn persons and of freed per,sons in successions 'we have made almost in unison..- (Jj 3, 7, 3.) Although formerly the seventh place- was held by the bonorum possessio, called turn qtieni exfainilia (for oneof the household), and the eighth by the unde liberi fatroni' patronaeqiie et parentes eoruni (for patrons' and patron- esses" descendants and ascendants), yfet both of those by our constitution on theirights of-patrons we have altogether repealed. After the' likeness of the successions to the freeborn we have appointed the successions to freed- men, narrowing them in, however, to the fifth degree only, that there maybe some distinction between the freeborn and freedmen. They have therefore enough means in the bonorum possessio contrary to the' terms of the will, and in that for statutory successors and for kinsfolk, of vindicating their rights ; and so all the niceties and intricate wanderings peculiar to the two first-named forms of bonorum possessio have been done away with^ (J. 3, 9, 6.) Table of Suocessien according to Justinian (0. 6, 4,- 4, 8-12^: — 1. Descendants of the freedmen and freedwuiuen, including those born in slavery and afterwards manumitted. 2. The patron and his descendants. 3. The collateral cognates of the patron to the fifth degree. If the freedman has cliildren, he can bequeath bis whole property ; if be has not, he must, if worth 100 aurci, leave a, certain -portion to the patron, as stated in the text. These rules were modified by a power given to a patron- of assigning the rights of patronage, including those of inherit- ance, to one of his children. Lastly, as regards the goods of freedmen, we must be reminded that the Senate has resolved that, although to all the patron's descendants of the same degree the goods of freedmen belong equally, it would be lawful for the ascendant to assign a freedman to one of the descendants, so that after his death that descendant alone to whom the freedman had been assigned should be held to be patron ; and that the rest of the descendants that would themselves, too, be admitted equally to the same goods if no assignment came in, would have no right over those goods. But in one case they recover their first rights, and in one only ; if, namely, the descendant to whom the freedman is assigned, dies and leaves no children. (J. 3, 8, pr.) It makes no difference whether it is by will a patron assigns, or without a will. Any words, too, whatever the patron may use to do this, under the FREEDMEN. 87 1 very Sekatus Consultum (a.d. 45) that was made in the time of Claudius when Suillus Rufus and Ostorius Scapula were consuls. (J. 3, 8, 3.) Not only a freedman, but a freedwoman too, one is allowed to assign ; and not only to a son- or grandson, but also to a daughter or granddaughter. (J. 3, 8, I.) This power of assignment is given to a man that has two or more de- scendants in his potestas, that so he may to 'those he has in his potesias assign a freedman or a- freedwoman. Hence the question was raised, whether if he afterwards emancipated the man to whom he- had assigned some one, the assignment would not disappear? It has been held that it would disappear, as was the view of Julian and of most others. (J. 3, 8, 2.) II. — Succession to Junian Latins {Latini jVNiANiy Next we must look narrowly to the case of the goods of Latin freedman. To make this part of the law plainer, we must be reminded of what we have said elsewhere, that the persons now called Latini Juniani\s&xe. of old sla-ves ex jure Quiriiium, but were by the Praetor's aid usually preserved in a form of freedom. Hence their very property used to belong to their patrons by the master's right to the peculiiim. But afterwards by the lex Junia all those the Praetor protected in their freedom came for the first time to be freemen, and^were called Lati7ii 'Juniani. They were called Zai'zVz/, because the statute aimed at making them free, just as if tliey were freeborn Roman citizens that had been led out from the city of Rome to Latin colonies, who then came to be Latin colonists.- They were called Juniani, because by that lex Jttnia they became freemen, although not Roman citizens. Now the law- giver that passed the lex Junia understood that it would come to pass that by reason of that fiction the property of deceased Latins would no more belong to their patrons ; for they neither died as slaves, that so their property might belong to their patrons by the master's right to the peculiuni, nor could the goods of a Latin freedman belong to the patrons by the right of manumission. He thought it necessary, therefore, lest the boon given them should be turned into a wrong -tO- their patrons, to provide that the goods of such freedmen should belong to their manumitters, just as if the statute had not been passed.. By a sort of master's right over the peculiuni, therefore, the goods of Latins- belong to their manumitters. (G. .3, 55-56.) In the case of freedmen (Roman citizens), the patrons succeed under the special rules applicable to patronage ; but in the case of the Latini Juniani the patrons succeed simplj as owners. The result is that there are many differences between the rights that are established over the goods of Latins under the lex Junia, and those that are observed in regard to the. inheritance of Roman citizens that are freedmen. (G. 3. 57-) (l.) The inheritance of a Roman citizen that is a freedman belongs in no way to his patron's outside heirs {extranei hej-edes). But to his patron's sons, and grandsons by a son, and great-grandsons born of a grandson that is a son's son, it belongs in any case, even although they have been disin- herited by their ascendant. But Latins' goods, like slaves' peculia, belong even to outside heirs, and do not belong to the manumitter's descendants if disinherited. (G. 3, 58.) 872 INTESTATE SUCCESSION, This difference, like the others that follow, arises from the fact that the succession to Latini is governed by the same rules as the succession to property. (2.) Again, the inheritance of a Roman citizen that is a freedman belongs equally to his patrons if there are two or more, although the shares they had as owners of the slave were unequal. But the goods of Latins belong to the patrons in the shares in which each was owner. (G. 3, 59.) (3.) Again, in the inheritance of a Roman citizen that is a freedman, one patron shuts out the other patron's son, and the son of one patron repels the grandson of another. But the goods of Latins belong at th* same time to a patron in person, and to the heir of the other patron, in proportion to the share in which they would belong to the maBumitter.in person. (G. 3, 60.) (4.) Again, if there are of one patron say three descendants, and of the other one, the inheritance of a Roman citizen that is a freedman is divided by counting heads ; that is, the three brothers carry off three shares, and the fourth one share. But the goods of Latins belong to the successors in the same shares in which they would belong to the manumitter in person. (G. (5.) Again, if one of the patrons despises his share in the inheritance of a Roman citizen that is a freedman, or dies before deciding whether to take it, the whole inheritance belongs to the other. But the goods of Latins, so far as regards the share of the patron that fails to .take, become escheats and belong to the People. (G. 3, 62.) Senatiis Consultum Largiaitum, "AID. 42. Afterwards, when Lupus and Largus were consuls, tlie Senate resolved that the goods of Latins should belong first to him that set them free ; next to their descendants not disinherited by name, as each was nearest"; and that then by the ancient law they should belong to the heirs of .those that had freed them. (G. 3, 63.) This Senatus CojisiUtum, as some think, has done this ; it makes us -use the same law with regard to the goods of Latins that we use in the case of the inheritance of Roman citizens that are freedmen. Such was the opinion notably of Pegasus. But this opinion is manifestly false. The inheritance of a Roman citizen that is a freedman never belongs to the outside heirs of his patron. But the goods of Latins, even under this very Senatus Consultum, if the manumitter's descendants do not stand in the way, belong even to outside heirs. Again, in the case of the inheritance of a Roman citizen that is a freedman, no disinheriting harms the manumittefs descend- ants. But in the case of the goods of Latins, that a disinheriting by name does harm them, is clear from the very terms of this Senatus Consultum. It is truer, therefore, to say that this only has been done by that Senatus Con- sulttim — it has made the manumitter's descendants, that have not been disinherited by name, be preferred to outside heirs. (G. 3, 64.) The emancipated son of a patron, therefore, that. has been passed over, although he may not have claimed bonorum possessio contrary to the terms of his parent's will, is yet preferred to outside heirs in the case of the goods of Latins. (G. 3, 65.) Again, a daughter and the others that one may lawfully disinherit under they«.t civile by using the words " and all others," although that is enough to remove them from all inheritance of their father's, will yet in the case of FREEDMEN. 873 the goods of Latins, unless they have been disinherited by itheir ascendant by name, be preferred to outside heirs. (G. 3, 66.) Again, to descendants that have held back from an ascendant's inherit- ance, the goods of Latins -belong, .although they are held to be .estranged from their father's inheritance ; .because they can in no wny be said to be disinherited any more than those passed over in silence -by the will. (G. 3, 67.) From all this, it is .evident enough that if a man makes a'Latin ..... (G. 3,68.) Agaiin, if no outside heir comes in, and the d'escendants become heirs in unequal shares, the goods an outsider that may lawfully deliberate whether to- enter on an inheritance, enters,- hehas after tlaat no power to give up the inheritance, unless- he is under twenty-five years of age. Men of this age, indeed, just as in every other case where they are deceived, if they rashly take up a ruinous inheritance, th& Praetor hastens to aid. (J. 2, 19, 5 ; G. 2, 163.) We must know, indeed, that' the late Emperor Hadrian gave relief to a man over twenty-five, when, after he entered on the inheritance, a huge debt that at the time he entered on- it was still hidden,, had, come to hght. (J. 2, 19,6; G..2,.i63.).. Jus deliberandi. Outside heirs were allowed tiine by the Praetor to determiiie' whether they would take the inheritance. (Ait Praetor; si tempus ad deliberandum petet, dabo.) (D. 28, 8, 1, 1.) Generally the length of time was in.the discretion' of the judge {D. 28, 8, 1, 2), but was- never less than 1-00 days.; (D. 28,, 8, 2.) The time might be ex- tended by the Praetor for urgent- reasons.^ (D.. 28, 8, 3.) T-he parties had the right to inspect the accounts of: the deceased, tiy enable-, them to- determine whether they would take or refuse the inheritance. (D. 28,. 8, 5, pr.): During this delay the property of the inheritance must not be interfered with, except so far as was absolutely necessary ; thu.s, with the sanction of the Praetor, u son could maintain himself {D. 28, 8, 9), or repair buildings, cultivate lands, pay debts due under a. penalty,, and take the necessary steps to prevent pledges being sold. {D. 28, 8, 7,- 3.-)- The acceptance of an inheritance' was in two ways: (1) a formal (cT^giio-),, confined to oMtsiderS' {extranei hevedes) ; and (2) an informal expression- or sign of intention to accept, which was the same fou both children- (smv e< necessarii) and outsiders {esetranei), although in the case of the former it was called immixtio, and in thai? of the l&tiev pr^. her ei-e gc.vendoi But the same acts and expressions- that were in- one case a sign of wai-^fing the right of abstention {heneficium ahstinendi),, were in the other a sign of acceptance (adiiio heveditatis.), 1. Formal Acceptance (cr-etio) by outsiders.. 1". What is cnetio V Outside heirs are usually allowed time to decide [cretio). An end, that is to- their deliberation is fixed, so that within a eerlain time either they must enter; on the inheritance,- or if they do-not enter, they are at the end of the time set aside. This is called cretio, because the verb cernere means to decide, as it were, ajid settle-. (;&.■ 2r 1-64.) 2°. The form and eifeet of common cretio {cretio vulgaris). 878 THE VESTING OF AN INHERITANCE, Since, then, the appointment in the will runs thus, " Titius be heir," we ought to add, " and decide within the next hundred days after you come to know and can decide. If you do not so decide, then be disinherited." ' (G. 2, 165.) The heir so appointed, if he wishes to be heir, ought to decide within the day fixed for his decision ; that is, to say these words, " Seeing Publius Maevius has by his will appointed me his heir, on that inheritance I enter, and decide to take it." ^ If he does not so decide, then at the end of the time for deciding he is shut out ; and it is of no avail that he acted as heir, that is, used the property that formed the inheritance as if he were heir. (G. 2, 166.) Just as an heir that is appointed with time to decide, unless he decides to take the inheritance, does not become heir, so he is shut out only if he has not decided within the time that puts an end to his power of choice. Although, therefore, before the time for;decision, he has settled not to enter on the inheritance, yet, if he is moved by repentance while the day for deciding is not yet come,, he can, by. .deciding, to take it, be heir. (G. 2, 168.) Every decision is tied down to a fi.xed time. For that,' a hundred days seemed a bearable time. . A longer or shorter time, however, can none the less be given by the jus civile.; but a longer time the Pr^tpr sometimes narrows down. (G. 2, 170,) 3°. Credo continua. Although every decision is tied down .to fixed days,' yet there is one form called common {vulgaris), another within fixed days {certorum dierum). Common is the one we have set forth abov.e, that is, in which there are added these words, " within which he comes to know and can decide." Within fixed days is that in which these words are withheld, but all;therest written. Between these two there is a great difference. When the common time for decision is given, no days are taken into account, except those on which a man knows that he has been, appointed heir and can decide. But when a time for decision, within fixed days is given,; then, even though a man does not know he has been appointed heir, the days are reckoned in unbroken order. Even in the case of a man that on some ground is forbidden to decide, and still more in the case of a man that has been appointed heir under a condition, the time is reckoned. Hence -it is better and more fitting to use the common form. The other is also called continuous {continua), because the days are reckoned in unbroken order. This form is, however, so hard that the other is more in , use, and hence also is called common. (G. 2, 171-173-) 4°. Perfect and imperfect crelio. The creiio is imperfect when these -words are not added, " If you do not decide, be disinherited" (Si non creveris, exheres esto). When this omission occuiTed, the heir named by an informal ^ Ifei-es Titius eato, adjioere dsb.emus : ceinitoqne in centum diebus proximis, qiiibus acies poteriaque. Quodni ita creveris, exheres esto. 2 Quod me Publius Maevius testamento suo heredem. instituitj.eam herediiatem adeo cerTioque. THE VESTING OF AN INHERITANCE. 879 acceptance acquired the inheritance. But a difficulty arose ■when a substitute was named. " If you do not decide, then let Maevius be heir " (Si non creveris, tunc Maevins heres esto). It was held in this case, that if the heir named did not formally accept, but only informally {pro herede gerendo), he was admitted only to one-half, Maevius getting the other half. Marcus Antoninus, however, altered this rule, and gave the heir, although he made an informal acceptance, the whole of the inheritance. (Ulp. Frag, -li, 34.) 5°. Abolition of formal acceptance (cretio). Constantine abolished this formality in favour of persons entering on the inheritance of cognates. (C. Th. 5, 1, 1, 2.) It was entirely abolished by Arcadius, Honorius, and Theo- dosius (a.D. 407 ; C. 6, 30, 17), and is not mentioned by Justinian. 2. Informal acceptance by outsiders (pro herede gerendo), or forfeiture of the right of abstention by children {immixtio). A man that is appointed heir without .a time to decide, or that in case of intestacy is called to the inheritance by statutory right, can become heir either by deciding or by acting as heir, or even by the bare intention to take up the inheritance. He is free also at whatever time he wishes to enter on the inheritance. The Prator, however, usually, on a demand by the creditors of the inheritance, settles a time within which, if he wishes to, he may enter on the inheritance ; and declares 'that if he does not it shall be lawful for the creditors to sell the goods of the deceased. (G. 2, 167.) The man that without any time to decide in is appointed heir, or that in case of intestacy is called by statute, as by a bare intention he becomes heir, so also by a design to the contrary is at once repelled from the inheritance. (G. 2, 169.) This refusal can only be made after 'the death of the testator, and after the heir named is in a position to accept. If it is not ripe for acceptance, he cannot refuse. (D. 29, 2, 94 ; D. 29, 2, 13, pr.) A person that refuses as an instituted heir is not precluded from accepting as a substituted heir. (D. 29, 2, 7,6, 1.) What is an acceptance or interference such as to tie a person to an inheritance"? (pro herede gerendo, immixtio). It was a question of fact— did the person intend to be heir? If his intentions were expressed in clear language, no diffi- culty arose ; the point that exercised the ingenuity of the jurisconsults was what acts showed an implied intention to accept. As the whole question turns on intention, it was held that when that was not exercised freely, but under coercion or intimidation, the acceptance.would.have.no effect. (0.29,2, 6, 7 : D. 29, 2, 85.) 88o THE VESTING OF AN INHERITANCE. An acceptance must be unconditional, thus : — " If the in- heritance is solvent, I will accept it„" is not an. acceptance. (D. 29, 2, 51, 2.) An outside heir, again, that is appointed: by will, &r tHat in case of in- testacy is called tothe legal inheritance,, can, -either by acting as heir or even by a bare intention to. take upj-the inheritance; becometheheir.. A man; acts as heir if he uses the property of the inheritance as- if he were heir, either by selling it, or tilling the farms, or letting them, and, indeed, if in^any way at all, either by acts or by words, he makes, his- intention ■ to< enter on the inheritance clear; provided only that, he: knows that the man with whose goods he is acting as heir has died, either with a- will or without it,, and that he is his heir.. To-act as heir istoact a£-owner ; theancients, indeed, used. the name heirs for owners. As further, by a bare intention an outsider be- comes heir, so too-by a- design^ to the- contrary he- is at once- repelled, frorff the inheritance. A man, moreover,-that.is..born.ideaf or dumb, or afterwards, becomes so-,, there- is nothing to hinder from acting as heir, and from acquir- ing for himself an. inheritance, if he- understands what. he. is about.. (J, 2,. 19, 7.) To use any of the hereditary property is-prima facie evidence of acceptance.- (TTlpi Frag. 22, 26.) But if it is clearly proved that the heir named had resolved to abstain from the inheritance; and continued in the family mansion only as'-tenant,, or to- watch, it, he is not made heir. (C. 6,. 31, 1.) The use of the family sepulchre is -not ooncliisive evidence of acceptance.. (D. 29-,. 2, 20, 3.) To use a thing- not partof'the inheritance as owner, underthe mistaken-idea that it was part of the inheritance, ia-an acceptance, as being proof of the intention. to act. as heir. (D. 29, 2,. 21, 1.). Manumitting slaves of t^e inheritance is an acceptance, as+-being a clear exercise - of the rights of ownership. (Ulp. Frag. 22, 26 ; Di 29,- 2, 42, 2.) Paying the debts-due by the deceased isan acceptance.. (C. 6, 30; 2:)- A son buries and performs, funeral rites for his father. Is. tiSs an acceptance ? Or- if he gives food. to. the slaves,, or sells slaves, or lets or repairs a house ? All these things are evidence of intention, and therefore it was-usual for a. son, if be did not. intend to accept, to-act under protest, that he was prompted in his-acts-by a sense of. filial duty, and not by a wish to talie the inheritance.. If the acts were urgently necessary for the benefit of the estate, this-disclaimer effectually prevented the inherit- ance being fastened upon him. (D. 29,. 2, 20, 1.) Titius and his son were appointed heirs. By order of Titiusi the- son accepted tha inheritance. Tiiat was held to. be an. acceptance by Titiusi-of. tlio share for which.he- himself was appointed. (D. 29, 2, 2S.) An inspection of the accounts of the-deceased- is necessary to enable aj.d6signated. heir to- know how he should act ; it. cannot,., therefore,. be taken aa an acceptance of the inheritance.. (D. 29, 2,, 29i..) In certain eases a person- was fastened with an inheritance- when it was not his intention to- accept,, but when,, from his- conduct, it ought to have- been his- intention.. If the appointed heir concealed, puiiloined, or consumed any of the property of the deceased, or caused it to be concealed^, purloined^ or con- TRANSFER OF INHERITANCE. 88 1 sumed he could not refuse the inheritance. He is fixed with it, whether he desires it or not. (D. 29, 2, 71, 3.) But interference with property not known to be part of the inheritance, does not fix the appointed heir with the consequence attached only to a fraudulent design. (D. 29, 2, 71, 8.) Fourth.— TRANSVESTITIVE AND DIVESTITIVE FACTS. Transtestitive Facts. By the Roman law an inheritance was indivestible and untransferable. An inheritance further admits of injure cessio only. If the man to whom, in case of intestacy, the inheritance belongs by legal right, makes an in jure cessio of it to another before entry — that is, before he becomes heir — then he to whom he thus gives it up becomes heir, just as if he had himself been called by statute to the inheritance. But if it is after binding himself that he makes the in jure cessio, none the less he himself still remains heir, and on that account will be liable to the creditors. The debts, however, perish, and in that way the debtors to the inheritance make a gain. But the corporeal things that belong to the inheritance pass on to him to whom the in jure cessio of the inheritance is made, just as if each thing had been so given up to him singly. (G. 2, 34-35.) Again, if the man to whom, in case of intestacy, the inheritance belongs by statutory right, makes an injure cessio to some one else of that inheritance before deciding to take it, or acting as heir, then he to whom he so gives it up becomes heir with full rights, just as if he himself were called by statute to the inheritance. But if, after he is heir, he makes an injure cessio, he still remains heir, and on that account will be personally liable to the creditors. Each thing, however, he will transfer bodily, just as if he had made an injure cessio of each ; but the debts perish, and in that way the debtors to the inheritance make a gain. (G. 3, 85.) An heir appointed by will, if before he enters on the inheritance he makes an in jure cessio of the inheritance to another, acts in vain ; but if he does this after entry, all happens as we have just said with regard to him to whom, in case of intestacy, the inheritance belongs by statutory right, if, after binding himself he makes an in jure cessio. (G. 2, 36.) The rule of law is the same if an heir appointed by will, after becoming heir, makes an in jure cessio of the inheritance ; but if he does so before entering on the inheritance, he acts in vain. (G. 3, 86.) The same view is taken with regard to necessary heirs by the authorities of the opposing school ; because it seems to make no difference whether a man becomes heir by entering on an inheritance, or is heir against his will. The nature of this case will appear in its own proper place. But the teachers of our school think that a necessary heir acts in vain when he makes an z«/«r^ «.5-i-z'(? of the inheritance. (G. 2, 37.) Whether a heres suus et necessarius acts to any purpose if he makes an 882 TRANSFER OF INHERITANCE. injure cessio, is questioned. Our teachers think he acts in vain. But the authorities of the opposing school think he acts to the same purpose as all others after entering on an inheritance ; for it makes no difference whether a man becomes heir by deciding or acting as heir, or by being tied down by necessity of law to the inheritance. (G. 3, 87.) Sui heredes at 6rst could not refuse the inheritance, and they could not alienate it. The agnati alone seem to have been able to convey the inheritance prior to acceptance ; testamentary heirs were not allowed that privilege. After entering, the agnati had leas power. The reason of these rules is not given by Gaius, and must now probably remain a matter of conjecture. The so-called sale of an inheritance was not a complete transfer ; it operated as a transfer only of the corporeal part. The debts due to the inheritance could be recovered by the heir, who alone was responsible to the creditors. The buyer did not become owner of the corporeal property even, until it was delivered. (D. 18, 4, 14, 1 ; C. 4, 39, 6.) But Marcus Aurelius allowed the buyer to sue the debtors in his own name (utiles actiones), so that if the debtors were sued by the heir, they could repel him by the plea of fraud. (D. 2, 14, 16, pr.) The heir, however, remained bound to the creditors, and could only save himself by calling upon the buyer, under his contract, to undertake the defence. Divestitive Facts. The rule of the Roman law was that an inheritance was indivestible (semel heres semper heres) ; but to this there was an exception when the inheritance was forfeited as a punishment on the heir. Generally, the forfeiture was to the Exchequer. (D. 34, 9, 5, 6.) The heir who forfeited lost all right in the inheritance, even to the Falcidian fourth (D. 34, 9, 5, 19) ; at the same time he was relieved from all the burdens (D. 34, 9, 18, 1), which now were transferred to the Exchequer {Fiscus). (D. 34, 9, 5, 4 ; D. 30, 50, 2.) When is an inheritance or legacy taken away ? {de Ids quae ut indignis auferuntur). 1. When a tutor marries his pupil against the law provided for that case (p. 687), she can inherit from him, but not he from her. (D. 30, 128.) 2. Similarly, when an oiEcial marries a woman in his pro- vince during his administration, he forfeits her property left to him. (D. 34, 9, 2, 1.) 3. When the testator has written that he wishes the heir to be deprived as unworthy. (D. 34, 9, 12.) ACTIONS. 883 4, When the heir has been guilty of misconduct to the deceased, either in deceased's life, or in reference to his testa- mentary wishes. (1.) When the deceased has lost his life through the fault or negligence of the heir. (D. 34, 9, 3.) (2.) When the deceased has met a violent death, and the heir enters before the slaves of deceased are put to the torture and punished, according to the Senatus Oon- »ulta SUanianum and Claudianum. (D. 29, 5, 5, 2. ) (3.) If the heir disputes or denies the testamentary capacity of deceased, the pro- perty goes to the Exchequer ; but if it is simply a deadly enmity that has sprung up, the v^ill is held to be revoked, rather than the heir punished by forfeiture. (D. 34, 9, 9, pr. ) (4.) If the heir conceals, destroys, or obliterates the will of the deceased. (D. 48, 10, 4, 1.) (5.) If the heir fraudulently conceals or abstracts property bequeathed to any legatee, he forfeits the Falcidian Fourth to the Fisous. (D. 34, 9, 6.) (6.) If a person fails in a q^uerda inofficiosi testamenti. (D. 5, 2, 8, 14.) (7.) If one refuses to comply with the injunctions of the will. (Paul, Sent. 3, 5, 13.) If a sum were left for funeral expenses or a tombstone, and were not so employed. (D. 50, 16, 202.) Justinian enacted that if the will was not obeyed within a year, the property should go to the person next entitled, and not be forfeited to the Exchequer. (Nov. 1, 1.) When an inheritance was bequeathed by trast, the unworthi- ness of the person charged with the trust did not prejudice the beneficial heir, nor did his worthiness prevent the confiscation, if the heir beneficially entitled exposed the property to con- fiscation. (D. 34, 9, 5, 6.) Fifth.— REMEDIES. A. In E.ESPEOT OF KiGHTS AND DdTIES. The rights of the heir as against those that have possession of anything belonging to his predecessor were enforced by the ordinary actions, as if he himself were the owner ; and in like matter, in respect of the debts due to or by the deceased, the heir could sue or be sued, exactly as if he were the creditor or debtor himself. For these rights and duties the ordinary actions suffice. The actions and remedies by which a legatee could enforce his rights, will be post- poned until the subject of legacy is discussed. There remain, under this head, only the reciprocal rights and duties of co-heirs, in which case the remedy was the actio familiae erciscundae. This was essentially an action for partition, although when brought for that purpose all incidental rights and duties were enforced. Hence, if there were no corporeal property, there could not be a partition ; and there was no necessity for it, because the debts were divided by the operation of law among the heirs. (D. 10, 2, 25, 1.) If proceedings are being taken in an actio familiae erciscundae, each single thing the judex ought to adjudge to a single heir. If this seems to make one outweigh the others, he ought to condemn him in turn to pay his co-heir a fixed sum of money, as has already been said. On another account, too, each ought to be condemned to make a payment to his co-heir, if, namely, he alone has gathered the fruits of a farm belonging to the 884 INHERITANCE. inheritance, or has spoiled or used up any property belonging to it. All these, in like manner, follow on the proceedings between more co-heirs than two. (J. 4, 17, 4.) B. In Respect op the Investitive Facts. I. Peculiar to testanientum, codicUU. 1. Action for production of will, codicils, etc. Actio ad exhibendum. 1°. The plaintiffi are all to whom in any way anything is left by will (D. 43, 5, 3, 10), and the defendants any person having the custody of the document (D. 43, 5, 3, 2) ; as, e.g., the priest of the church {aedituus) in which the will is deposited, or the notary that drew it up. (D. 43, 5, 3, 3.) 2°. The damages for non-production are determined by the value of the inheritance, or of the portion in which the plaintiff is interested. (D. 43, 5, 3, 12.) 3°. The interdict may be claimed by a man's heirs and other successors. (D. 43, 5, 3, 17.) 4°. It is not extinguished by prescription for one year, like other Prsetorian remedies. (D. 43, 5, 3, 16.) 2. Action to set aside a will. Querela inq^ciosi testa/mentu There does not appear to have been any special action under the above name ; but the person deprived of his hgitima portio sued for the inheritance by the usual action, claiming as heir against those designated in the will. 1°. The plaintiff is the person deprived of his legitivi, and the defendant the heir, whether direct or Jideicommissai^ius, named in the will. (C. 3, 28, 1.) A father could not, however, sue on behalf of his son against his wishes, for the dishonour, if any, was a personal affront to the son himself. (D. 5, 2, 8, pr.) The son could bring the action in his own name without his father's consent (D. 5, 2, 22, pr.), although, if he succeeded, the sole benefit accrued to his father. If the legatees suspect collusion between the heirs appointed and the plaintiff, they may come in and defend the will. (D. 5, 2, 29, pr.) If the title of the plaintiff is only Pr«torian, he must first obtain the bonorum possessio, and then sue the written heirs who remain in possession until the wiU is upset. (C. 3, 28, 2.) If the plaintiff succeeds, and the heir appeals, the plaintiff, if a, pupUlus and poor, is entitled to maintenance until the case is finally decided. (D. 5, 2, 27, 3.) 2°. The heir of the plaintiff is entitled to go on if the plaintiflT went so far as to get recognition as bonorum possessor {post agnitam bonorum possessionem). (D. 5, 2, 6, 2.) Even giving notice of action was sufficient to perpetuate the right to the heir. (D. 5, 2, 7 ; C. 3, 28, 5.) 3°. The prescription was at first two years, and afterwards extended to five. (D. 5, 2, 8, 17 ; D. 5, 2, 9.) The time runs not from the death of the testator, but from the date of the aditio hereditatis. (C. 3, 28, 36, 2.) II. Actions by Seres, I. Petitio Hereditatis. 1. The question tried is the right of inheritance, and hence every one that sets up a claim of his own may be made defendant. If a debtor to the inheritance refuses payment on the ground that he is heir, he may be made a defendant ; but if he only denied the title of the plaintiff without setting up a title of his own, the petitio hereditatis could not be brought. (D. 5, 3, 42.) If a person possessed the inheritance, as a singular, not as a universal, successor, the petitio did not lie, but by an equitable extension of the principle of the action {utilis petitio) the same remedy was allowed. Thus a husband might accept an inheritance from his wife as a dowry (D. 5, 3, 13, 10), or one might buy an inheritance from the Piscv^. (D. 5, 3, 13, 9.) ACTIONS. 885 In all other oases, when a person does not set up a hostile title, the person claiming as heir must resort to the usual actions available for an owner. (0. 3, 31, 7.) 2. Every person who was called hcres as contrasted with honorum possessor might be plaintiff in this action. (D. 5, 3, 1.) The defendants are any persons having any of the goods belonging to the inheritance, which they claim in the capacity either of heirs or of possessors (pro Jierede, pro possessore). (D. 5, 3, 9.) Under the latter designation are included a thief or robber (D. 5, 3, 13, pr.), a person selling things or collecting debts belonging to the inheritance (D. 5, 3, 16, 1), or one that has taken the crops of the estate. (D. 5, 3, 13, 7.) 3. As a general rule, pending this action, no other action could be brought that raised as an issue the right of inheritance. (D. 5, 3, 5, 2.) Justinian explains the reason of this rule. Questions of inheritance were origin- ally tried before the venerable centumviral court, whereas the ordinary actions went before a fiiaxple judex. In order to maintain the authority of that tribunal, the rule was adopted ; but its inconvenience gave rise to various attempts to soften its opera- tion, thus leading to uncertainty in the law. Hence Justinian enacted that the creditors of the deceased might sue either the possessor or the petitioner. If their claim is for things deposited, lent, pledged, or the like, their remedy is not to be sus- pended. If it is for money lent or any action in personam, either the possessor or petitioner may be sued. After the conclusion of the suit, if the petitioner is success- ful, he will not get the property without paying all debts discharged by the possessor ; and similarly if the possessor is successful, the judge will order him to pay the petitioner. If the petitioner neglects this opportunity, he can afterwards sue the pos- sessor, either by the actio negotiorum gestorum or by a condiciio ex lege. (C. 3, 31, 12, 1.) Legatees may sue the heir or the possessor, giving security to return pecuniary legacies with interest at 3 per cent, (ex quarto, centesimue parte), or land with the produce, or houses with their rents. Failing to give such security, they must wait the end of the suit. (C. 3, 31, 12, pr.) In the case of bequests of freedom, a year is to elapse from the death of the testator. If during that time the case is ended, the fate of the bequests will thereby be determined. After that time the direct bequests shall at once take effect, and so also those given on trust, provided the will is not found to be spurious (falsv.m). i. The object of the suit is to enable the petitioner to enter as heir. The effect is fully to establish him in that position. But a question arises as to the produce of the inheritance ( fructus) from the time of the death to the end of the petition. (D. 5, 3, 18, 2 ; D. 5, 3, 20, 3.) Upon this important subject a distinction was drawn by a iSenates Conswtem passed in the reign of Hadrian, between a hona fide and a mala fide possessor. (D. 5, 3, 20, 6.) This enactment, although in terms applicable only when the State was heir, was held to apply to every case, even when private individuals were heirs. (D. 5, 3, 20, 9.) According to the terms of the enactment, it is in favour of those persons that believe themselves to be heirs, or bonorum possessores, or otherwise entitled to the inheritance. (D. 5, 3, 20, 13.) (1.) A Tnala fide possessor is one that has no title, and knows it. (D. 5, 3, 25, 3.) As the question is thus one of knowledge or belief, a person is none the less a bona fide possessor because his mistake arises from an error in law, and not of one in fact. {D. 5, 3, 25 6.) The bona fide possessor is bound to restore only what is in his possession at the beginning of the suit, or is acquired subsequently. {D. 5, 3, 41, pr. ; D. 5, 3, 18, 1.) The mala fide possessor must restore everything in the inheritance, except in so far aa it was lost without his negligence or fraud. (D. 5, 3, 25, 2 ; D. 26, 7, 61.) (2.) A bona fide possessor is not bound to pay interest on money that he received or ought to have received (D. 5, 3, 20, 15), but a mala fide possessor is, and also on account of the crops or other produce he has gathered. (D. 5, 3, 51, 1.) (3.) The boTia fide possessor must restore the price of things sold only in so far as 886 INHERITANCE. he has not spent the money. (D. 5, 3, 23, pr. ; D. 6, 3, 25, 11.) But the mala fide possessor must restore the whole. The bona fide possessor may deduct the amounts he has paid tor debts (C. 3, 31, 5) ; also what is due to himself. (D. 5, 3, 31, 1.) And so for funeral expenses, etc. (D. 5, 3, 60, 1.) But for beneficial expenditure (D. 5, 3, 36, 5), every possessor, even if he is mala fide, may claim compensation. (D. 5, 3, 37 ; C 5, 3, 38, pr.) It would appear that a bona fide possessor ooiild claim also for frescoes and purely ornamental expenditure ; but not a maJa fide possessor, although he could carry his improvements away. (D. 5, 3, 39, 1.) 5. This action was not removed by the prescriptio longi temporis. (C. 3, 31, 7.) II. Petitio partis Hereditatis. The remedy (No. I.) was confined to a case where a person claimed as sole heir. This is the action when one claims only a share of the inheritance. (D. 5, 4, 1, pr.) It does not give partition, but only an undivided share. (D. 5, 4, 8.) III. Carbonian Edict — De Carhoniano JSdicto. Special provision was made when the alleged heir was under the age of puberty by Cn. Papirius-Carbo, who introduced a provision into the edict about 100 B.C. The terms of it are as follow : — Si cui controversia fiet am inter liberos sit et impuies, sit ; causa cognita perinde possessio datur, ac si Tt/uUa de ea re controversia esset, et judicium in tewpus pubertatis causa cognita differtur. (D. 37, 10, 1, pr.) The object was to give the child a maintenance. (D. 5, 2, 20.) The edict applies only when there is a dispute regarding a father's inheritance, and also whether a child under puberty was under the potestas of the deceased. (D. 37, 10, 6, 3 ; D. 07, 10, 7, 2.) It does not apply where it is quite certain either that the child is heir or cannot be heir. (D. 37, 10, 11.) All questions relating to legacies and trusts are also, according to a rescript of Antoninus Pius, postponed till the child peaches puberty. (D. 37, 10, 3, 1.) Causa cognita. — The object of this inquiry was twofold : (1) to give the child clear possession, and (2) to determine whether the trial should be put off till the child reached puberty, or should be ordered at once. If it was quite clear that the child had no claim, the Praetor refused him possession. (D. 37, 10, 3, 4.) But if the matter was doubtful, he gave him the benefit of the doubt. It might, however, be expedient in the interest of the child that the question of its status should be determined at once ; for witnesses might die or be corrupted, and evidence, now forthcoming, might be lost (D. 37, 10, 3, 5), and then the Prsetor exercised his discretion by appointing an agent to represent the child, and ordering the trial to proceed. The child must find security ; if he does not, the adversary is put in possession, un- less the adversary is in the same plight, in which case a curator was to be appointed for the administration of the property. (D. 37, 10, 5, 2.) In any case the child is allowed a maintenance, if it is poor, when the trial is deferred until it reaches puberty. (D. 37,10,6,5.) In the suit that follows, the child on giving security occupies the advantageous position of defendant. (D. 37, 10, 6, 6.) IV.— The Bonorum Possessio. The bonorum possessor could recover the property of which the inheritance con- sisted by the interdict Quorum Bonorum ; and he could sue the debtors of the de- ceased, or be sued by them by utiles actiones, in which it was feigned that the bonorum possessor was heres. (Olp. Erag. 28, 12 ; G. 3, 81.) The Possessio Bonorum was obtained either on summary application (de piano), or on hearing (causa cognita). Theophilus says (J. 3, 9, 12) tha tthe position of a bonorum possessor- could in early times be obtained only by special petition : — " Da mihi Aan-c PERIOD OF FORMALISM. 88/ bonoruta possessionem." — " Give me tins honorum possessio." But in the time of Jus- tinian this was unnecessary, and any act signify int' an intention to be bonorum possessor was enough. If the person who had made an agnitio had only a Praetorian title, his remedy was the Interdict Quorum Bonorum. This interdict was available only to recover a univei-- nitas, not individual things. It was a means of acquiring possession. (D. 43, 2, 1, 1.) The evidence it required was such as to make out a good title as bonorum possessor. (C. 8, 2, 1.) It could be brought only against the possessor of corporeal property. (D. 43, 2, 2.) V. When an inheritance has been restored according to the Senatus Consultum Tertullianum, but not otherwise, the heir in trust (Fideicommissarius) may use the petitio hereditatis just like any other action available to an heir. (D. 5, 6, 1.) The heir appointed is compelled to surrender the inheritance. The jurisdiction over trusts was in Rome assigned to a Prcetor Fideicommissarius, to whom application must be made, and not by ordinary action {per formulam.) In the provinces the jurisdiction belonged to the President {Praeses ProviMeiae). (Ulp. Trag. 25, 13.) ^art $5. LEGACY. Order of Topics. The history of the Roman Law of Legacy is divided into three periods. The first extends down to the close of the RepubHc, and may be summed up in the word Legatum. This period is characterised by strictness of form and narrowness of interpretation. The second period dates from Augustus, and closes with Justinian. It is characterised by the formation of a new body of law, having for its object to mitigate the strict- ness and technicality of the older law. This was done by means of Jideicommissa, as in the case of hereditas. The third period was established by Justinian, and is marked by the fusion of Fideicommissum and Legatum, thus restoring the unity of the law as it existed during the Republic, but enlarged and improved by the superior elements of the Fedeicommissum. First Period. — The Law op Bequest during the Republic {Legatum). The Law of Bequest, founded on the text of the XII Tables, was built up on a single principle — namely, the intention of the testator. The rights of the legatee, the mode of acquiring the 888 LEGACY. legacy, and all the incidents connected with it, have no othei- origin than the will of the testator. The law of bequest is therefore simply the interpretation of legacies. But this perfect dependence of legacies on the wishes of testators was limited by two things, one permanent, the other local and temporary. In the first place, not in Rome only, but everywhere, the will of a testator must be circumscribed by the general laws of the country. A person cannot bequeath as property what the State refuses to recognise as property ; nor to a person incapable by law of receiving legacies. According also to the political views cuiTent, the policy of the law, as it is called, imposes certain limits to the right of testation. These causes are always in operation, although the results are not everywhere the same. But in Rome the power of testation was for centuries restrained by a spirit of legal formality like that which we have found elsewhere to characterise the Roman law. , The narrowness of interpretation that made the Roman jurists afSrm vines to be one thing and trees another, so that a man that claimed a vine could not be said to claim a tree, was not confined to the legis actiones. It was the universal tendency of the Roman law, in its earlier stages, to prefer the form to the spirit ; and although there appears to have been nothing in the XII Tables to narrow the forms of bequest, yet it came to be recognised that nothing could be a legacy unless made in one or other of certain pre- cise, set forms. The testator's intention was the source of the legacy, but it had no effect unless made in the ways prescribed by custom and the jurists. We may consider the subject under the following heads : — 1. The Forms of Legacy. 2. The Interest taken by the Legatee. 3. The Restraints on each kind of Legacy arising from its Form. 4. Divestitive Facts. 5. Conjoint Legacies. I. The Forms of Legacy. Of legacies there are four kinds ; for we may leave a legacy either ^er vindicationem, per damnaiionem, sinendi modo, ox per praeceptionem. (G. 2, 192.) 1, Fer vindicationem. A legacy per vindicationem (by giving a claim to the thing) we leave in this way : — " To Lucius Titius," for instance, " I give and leave as a legacy the slave Stichus." Even if one of the two words is set down, as " I give the slave Stichus,'' it is a legacy per vindicationem. Indeed, if it is in PERIOD OF FORMALISM. 889 other words the legacy is left, as " Let him take," or " Let him have for himself," or " Let him pick," it is equally a legacy per vindicationem. (G. 2, 193.) 2. Fer damnationem. A legacy /«r damnationem (by condemning the heir to pay) we leave in this way : — " Let my heir be condemned (damnas) to give Stichus my slave to Lucius Titius." Even if the entry is, "Let him give," it is a legacy /«r da7nnatione7n. (G. 2, 201.) " Damnas" is not altogether an equivalent for any English word. Some writers think that a damnatus could be proceeded against by in manus injectio without the necessity of a preliminary action. 3. Sinendi modo. A legacy sinendi modo (by allowing the legatee to take) we leave thus : — " Let my heir be condemned to allow Lucius Titius to take and have for himself the slave Stichus." (G. 2, 209.) 4. Per praecepiionem. A legacy per praecepiionem (by allowing the legatee to pick out first) we leave in this way : — " Let Lucius Titius pick out first the slave Stichus." (G. 2, 216.) II. The Rights of the Legatee. 1. The legatee has a right in rem to the thing bequeathed if the legacy is in the first form. The legacy per vindicationem is so called because after the inheritance is entered on the thing at once becomes the property of the legatee ex jure Quiritium. If, then, the legatee has to claim it from the heir, or from any one else that is in possession of it, he ought to do so by a vindicatio, to allege (that is) in the statement of claim that the thing is his ex jure Quiritium. (G. 2, 194.) But on that point men learned in the law diflfer. Sabinus and Cassius and the rest of our teachers think that what is so left becomes at once after the inheritance is entered on the property of the legatee, even though he does not know it has been left him ; but that after he once knows, and rejects it, then it is all the same as if it had never been left him. Nerva, on the other hand, and Proculus, and the rest of the authorities of that school, think the thing becomes the legatee's only if he is willing it should belong to him. In our day, under a constitution of the late Emperor Pius Antoninus, this view of Proculus rather is the law in use among us. For when a Latin was left as a legacy per vindicationem to a colony, that constitution says, " Let the decuriottes (local senators) weigh well whether they wish him to belong to them, just as if he had been left as a legacy to one man." (G. 2, 195.) The question is raised to whom a legacy left conditionally /^r vindica- tionem belongs while the condition is in suspense. Our teachers think to the heir, after the example of a slave left conditionally free istatuliber), of a 890 LEGACY, slave (that is) ordered by will to be free under some condition ; for he, it is agreed, is meanwhile the property of the heir. The authorities of the opposing school, however, think that meanwhile the thing is no one's ; and this, they say, is still more the case with a legacy left simply and uncon- ditionally before the legatee accepts the legacy. (G. 2, 200.) 2. When the legacy is per damnationem. A thing so left, after the inheritance is entered on, although it is left simply, is not like a thing per vindicationem forthwith acquired for the legatee, but none the less is the heir's. The legatee ought, therefore, to bring an action in personam ; that is, to put forth a statement of claim that the heir ought to give it him. Thereupon the heir, if it is a res mancipi, ought to give it by mancipatio or injure cessio, and to deliver up possession ; if it is a res nee mancipi, it is enough to deliver it. If, indeed, he only delivers a res ma7icipi, and does not convey it by mancipatio, then by usucapio it at length becomes the legatee's in full right. Now usucapio is limited, as we have said above, to a year in the case of moveables, to two years in the case of things attached to the soil. (G. 2, 204.) 3. When a legacy is sinendi modo. As 3i\&%3iCy\tit per damnationem does not at once, after the inheritance is entered on, become the legatee's, but remains the heir's, until the heir, by delivery or mancipatio or in jure cessio, makes it the legatee's, such is the law in the case of a legacy left sinendi modo also. The action on account of a legacy of this kind is therefore against a person {in personam), and is for " whatever the heir under the will ought to give or do." There are some, however, that think the heir is not bound under a legacy of this sort to convey the thing, or to give it up by in jure cessio, or to deliver it ; but that it is enough if he suffers the legatee to take it, because the testator gave him no further orders than to allow, that is, to suffer, the legatee to have the thing for himself. (G. 2, 213-214.) 4. In legacy per praeceptionem. Our teachers think that a legacy cannot be left in that way to anyone that is not in some part of the will appointed heir. To pick out beforehand {praecipere) is to be foremost to take. This can take place only in the case of a man that is appointed heir of some part, because he over and above his share of the inheritance is to have the foremost legacy. If, therefore, a legacy is so left to an outsider, it is void : so much so, as Sabinus held, that not even under the Senatus Consultum Neronianum can it come to be valid. " That Senatus Consultum" he says, " confirms those only that through some verbal defect are of no force by Xhftjus civile ; not those that, because of the status (persona) of the legatee, are not due." Julian, following Sextus, however, held that even in this case the legacy is confirmed under the Senatus Consultum, because the reason why the legacy is void by the jus civile is in this case also verbal. This, they say, is plain from the fact that the same person may have a legacy rightly left him in other words, as per vindicationem, per damnatio7ie7n, sinendi modo; whereas, from a defect in the person's status the legacy is of no effect, when a legacy is left a man that can in no way have it left him— an alien, for instance, with whom there PERIOD OF FORMALISM. 89 1 is no testamenti /actio. In this case plainly there is no room for the Senatus Consultum. Our teachers, again, think that a legacy so left the legatee can obtain in no other way than by an actio familiae erciscundae — the action, that is, for dividing the inheritance usually received among heirs. It falls, indeed, within the judge's duty to adjudge a legacy left per praecep- tionetn. (G. 2, 217-219.) The Senatus Consultum Neronianum (reign of Nero) provided that a legacy left in. unfit words should take effect just as if it had been left in the best way known to the law. The best way was considered to be per damnationem. (Ulp. Frag. 24, ] 1.) A praelegatum, or legacy per praeceptionem, could exist only if there was more than one heir ; it was an advantage given to one heir over the rest in addition to his share of the inheritance. When there were several heirs, one of them might be both an heir, and, as regards his co-heirs, also legatee. III. Eestiiction as to the object of the bequest. 1. In legacies per vmdicationem. Those things alone can rightly be left per vindicationem that are the testator's own ex jure Quiritium. In the case, however, of things essentially such that they can be weighed, numbered, or measured, it is held to be enough if they are the testator's ex jure Quiritium at the time of his death — wine, for instance, oil, corn, coined money. But all other things ought to be the testator's ex jure Quiritium at both times — that is, both when he made the will and when he died — since otherwise the legacy is void. (G. 2, 196.) Undoubtedly this is so by the/KJ civile. But afterwards, at the instance of Nero C^sar, a Senatus Consultum was passed providing that if each testator by the form " I give and leave as legacy," left what was never his, the legacy should be valid, just as if it had been left in the best form known to the law. Now, the best form of legacy known to the law is that per damnationem. By this kind even what belongs to another can be left, as will appear lower down. (G. 2, 197.) But if a man leaves a thing of his own by the form, " I give and leave as a legacy," and then after making the will alienates it, most think not only that the legacy is void hy the jus civile, but that it is not confirmed under the Senatus Consultum. The reason this is said is, because even if a man leaves a thing of his own per damnationem, and afterwards alienates it, most think that although at strict law the legacy is due, yet the legatee, if he demands it, can be repelled by the exceptio doli mali, as demanding it con- trary to the wishes of the deceased. (G. 2, 198.) 2. In legacy per damnationem. By this kind of legacy even what is another's can be left, so that the heir must buy it up and supply it, or give its value. (G. 2, 202.) A thing, too, that in the nature of things is not in being, if only it is to come into being, can be left per damnationem; the fruits, for instance, that are to grow on such and such a farm, or the offspring such and such a female slave is to have. (G. 2, 203.) 3. Legacy sinendi modo. This kind of legacy goes further than that per vindicationem, not so far as that per damnationem. In this way the testator can leave as a valid 892 LEGACY, legacy not only what is his own, but also what is his heir's. Per vindica- tionem, on the other hand, he can leave only what is his own. Per damna- tionem, what belongs to any outsider. (G. 2, 210.) If at the time of the testator's death the thing is the testator's own, or his heir's, the legacy is manifestly valid, although at the time of making the will it belonged to neither. (G. 2, 211.) But if it is after the testator's death that the thing first comes to be the heir's, it is questioned whether the legacy is valid. Most think that it is not. What then ? Even although a man leaves as a legacy what was never his, and what never afterwards came to be his heir's, then under the Senatus Consultum Neronianum it seems to be all the same as if the legacy had been \e.i\. per damnationein. (G. 2, 212.) 4. Legacy 'per praeceptionem. From this we understand that, in the opinion of our teachers, nothing can be left as a legacy per praeceptionem unless it is the testator's ; for nothing but what belongs to the inheritance can be brought into this action {familiae erciscundae). If, therefore, the testator leaves a thing not his own in that way, by the/zdj civile indeed the legacy will be void, but under the Senatus Consultum it will' be confirmed. In one case, however, they (i.e., the Sabinians) own that even what is another's can be left per praeceptionem — when, namely, a man leaves a thing as a legacy that he has given by mancipatio to a creditor Jiduciac causa. In this case they hold that the judex, in the discharge of his duty, can compel the co-heirs to pay the money and release the thing, that so the legatee may pick it out before- hand. But the authorities of the opposing school think that even to an out- sider a legacy can be left per praeceptionem, just as much as if the entry in the will were, " Let Titius pick out my slave Stichus," and that the addition of the syllable prae (beforehand) is mere surplusage. It would seem, then, that it is per vindicatio7iem that the thing is left ; an opinion that is said to be confirmed by a constitution of the late Emperor Hadrian. According to this opinion, then, if the thing was the deceased's ex jure Quiritium, the legatee can claim it by a vindicatio, whether he is one of the heirs or an outsider. If, again, the testator owned it only z>z bonis, it will be a valid legacy to an outsider under the Senatus Consultum, and to an heir it will be supplied by the ya^fejr in discharge of his duty in the proceeding /a;;«z7z with the' legacy. For a- flock has one body, though it is made up of separate individuals ; just as a house is one body, though it is made up of the stones that hold together. When a house, then, is left as a legacy, the pillars and marbles that after the will is- made are added, go (we say) with the legacy. (J. 2', i6\ 18-19;)' The question, then, is as to the time between the death of the testator' and the acquisition of the legacy by the legatee. In one case the question- is easily determined. When' a' thing belonging, to' the testator is bequeathed to a legatee, and the legatee becomes entitled as owner' on the entry of the heir, it follows that prior to the entry of the heir the legatee is entitled to nothing, and alHier that, as" owner, he is entitled to everything.-- When, however, a thing is-specifieally bequeathed, but the legacy is not to take effect until after a certain time, or until- a, condition- happens,- for that period the heir is- entitled to the possession- and the income (^fructus)- and- casual gains {causa).- A testator beqrieathed certain slaves' by na-me to his sister 04 trust to give theih'tb her children on her death. During her life certain slaves were born- of those con-- tained in the legacy. These, it was held, were not included in the gift of trust to the children. (D: 32, 41-, 10.)' A distinction was,- hoWevetr, drawn when the legacy 'was nut conditional, but only postponed, say for ten' years.- If the delay was intended to be a benefit to the heir, theheir was entitled to the income and profit' for' the ten years ; but if if was for the benefit of the legatee, as- a postponement until he reached the age of puberty, then the whole profit of the ten years must be given up to the legatee.- In this respect the heir was purely a trustee. (D. 31, 43,-2.> When a legatee had a right in rem, he became entitled to the fructus from the- moment the ownership vested in him, although the crops had just then come to maturity.. (D. 2'2, 1, 42.) This was the rule even if the ground had been prepared and sown by a tenant, who, however, bad an action against the heres upon his contract. (D. 30, 120, 2.) When the legatee had only a right in personam, the rule was RIGHTS OF LEGATEE. 9O3 somewhat different. He was not entitled to the income or produce necessarily from the moment when the legacy became due. He became entitled only when the heir refused or neglected to perform his duty. Unless there was a breach of duty (mora) by the heir, and undue delay in performing his obligation, the legatee had no claim for arrears of income or interest. (Paul, Sent. 3,- 8, 4.) When the heir is- required to restore the income (fructus), what he must restore is not the income he actually obtained, but the income that the legatee could' have obtained if he had been in possession.- (D. 30, 39^ 1.)' II. The person charged with a legacy must make good any loss sustaiaed by a legatee through his misconduct (dolus) or negligence (culpa). Thus if the heir delays entering upon the inheritance in order to hurt the legatee, he must pay com- pensation. (D. 7, 1, 35, pr.) As to the degree of eare required, an important distinction is drawn by Africanus: He says that if the person charged with a legacy derives no benefit whatever under the will of the deceased, but is asked to' give up all that he gets, such a person is to be I'espousible only for actual misconduct (dolus), not for negligence (culpa). But if he derives any benefit under the will, he' is bound t'o exercise t'hS' care of a' good paterfamilias. (D. 30, 108, 12 ; D. 30, 47, 5.) Africanus supports this view by the analogy of bonae fidei contracts. If only one of the contracting parties derived a'uy benefit from it, he could not require from the other any responsibility except for' miscon- duct (dolu's) \ but if both gained by the- contract, each was re- sponsible also for due diligence.' In the absence of Hegligence, the' person charged was not liable to niake good the loss of the thing bequeathed. But if the Itiss occuiTed after he had failed to perform his obligation (mora), or by his own act, even if an innocent one, he must make good the loss.. (D. 30, 108, 11 ; D. 32, 26.) If the thing left' as a legacy pertshe's without any act on the part of the heir, it is on the legateethe loss falls. If also another man's slave, without any act on. the part of the heir is manumitted, the heir is not liable. But if a slave belonging to the heir is left, and the heir manumits him, he is liable, as Julian wrote ^ and it makes no difference whether he knew or did not know that the slave had been. left as a legacy through him ; nay, even if he gave the slave to another, and the man to whom he was given manumitted him, the heir is liable, although he did not know that the slave had been left as a legacy through him. (J. 2, 20, 16.) 904 LEGACY. III. Written instruments showing the title of lands be- queathed may be kept by the heir, and the legatee cannot demand them ; but the heir must give sureties for their pro- duction when required in the interest of the legatee. (C. 6, 42, 24.) (0.) Duties of Legatee = Rights in personam of the person charged with the legacy. Is the legatee bound to make good to the heirs or persons charged with the legacy what has been spent for the preserva- tion of the thing bequeathed 1 The legatee was not bound to pay even for necessary repairs, because the right of the heir or person charged to take the produce or income was a sufS- cient equivalent, -(D, 30, 61.) But when the expenditure went to the root of the bequest, the heir had a right to com- pensation. Thus, if without the fault -of the heir (D, 30, 59) a house bequeathed was burned down, and he rebuilt it, he is not bound to give up possession when the legacy falls due, unless compensation is made to iiiin on an equitable scale (D. 30, 58) ; and even after siu-rendering the property without obtaining compensation, he can bring an action against the legatee on the ground that he has paid to lim more than was due. (D. 30, 60.) B. — Rules applying to Particulati Legacies. The duties of the heir and the rights of the legatee had one common origin in the will of the testator, and their limits were simply a question of interpreting that will. To a certain extent, therefore, no universal rule can be laid down, because each testator had a right to have his will interpreted by itself so long as he kept within the limits of the law. Still one testament was necessarily very much like anothei-, and legacies ran in grooves. Hence the language of testators came to be tried by the standard of legal custom, and it might happen that an incorrect use of terms defined by custom would cause the testator's will to be interpreted erroneoiisly, and so defeat his intentions. But custom was never set up as an absolute tyrant ; it was accepted as a guide only if the testator had not clearly shown a different intention. The legal interpretation, or rather the interpretation arrived at from considering a multitude of wills, took rank only as a presumption of law RIGHTS OF LEGATEE. 9O5 ■which by clear and conclusive evidence to the .contrary might be rebutted. With this explanation we may proceed to notice th« chief examples of legacy in the Eoman law, and in doing so shall follow the arrangement of rights .adopted in the present woj-k. A. Lesaoy of Kights in rem over Human Beings - Slavey. B. Legacy cit lligbts m vem over Things. .(a.) tlnqualified Ownersliip. {b.) Qualified Ownersliip. (c.) Usufruct. c. Rights in personam. ] ». Legacy of Mereditas. A. Rights in rem .over Human Beings — Slatert. The «hief distinction that occurs in /legacies of slaves is that between servi urhani and .-servi .rustici. The latter were either agricultural labourers or attached to farms, the urban elaves were rather personal att«ndants on the owner. (D. 32, 60, 1.) But the real test was the custom of -the owner. The urban and rural slaves were supplied with difiereiit "kinds of food, and the household accounts kept them separate. The evidence derived from this source was .considered most satisfactory. /(JD. ,32, .99, pr.) If a man leaves as ra. legacy female slaves witli their Children as well, even if the female slaves die, their offspring goes with the legacy. It is the same if ordinary slaves are left, and.the slaves of those slaves (z'zVaw') as well, so that even althoughthe-ordinary slaves die, yettheir slaves go with the legacy. But if a slave is left, and his peculhim as well, by the death, or manumission or alienation of the slave, the legacy of ,the /^a^/w/a, top,,is jextinguished. (J. 2, 20, 17.) B. Eights in rem over Things. (a.) Unejualified Ownership. T. Animals. Cattle [Pecus) includes all animals that feed 'in BockG or herds, including swine. (D. 32, 65, 4.) Sheep (Ows) does not include lambs fPaul, Sent.S, 6, Ti) nor rams. >{D. 32, 81, 4.) La.mbs (agni) were generally so called until they were a year old (Paul, Sent. 3, 6, 74) ; but the usage varied — in some places until the first shearing. (D. 32, -65, 7. ) A legacy of lambs, therefore, applied to different ages,. according to .the custom of the place. A lecaoy of birds {Ares) included aviaries, geese, pheasants, and fowls, but not the slaves that watched them. (D. 32, 66.) II. Legacy of Lands or Houses. 906 LEGACY. Land or houses might be bequeathed simply or with their appurtenances. 1. Simple legacy of farm or estate {Fundus). A legacy of a farm is a gift of the soil, buildings, and fixtures {quaecumque infixa inaedificataque sunt) (D. 33, 7, 21), but not of the moveables on the farm. (D. 19, 1, 17, pr. — 11.) A legacy of a house included the land on which it stood, and a legacy of laud included the house built upon it. (Paul, Sent. 3,. 6, 68.) The boundaries of a farm were determined by the views of the testator, whichi if necessary, were to be ascertained by extrinsic evidence. "To my sister Tyranna I leaveiny Grecian farm, with tlie stable aJifl allthe rural stock." Does this include meadows for pasture which were bought by the testator along with the farm, and used in connection with' it ? Jf, according to the usaL:u of the testator, these meadows were included in the name of the farm, they pass to the legatee. (D. 33, 7, 20, 7.) Amongst other lands, Titius bequelathed to hts liepheW the Seikn farm. For con- venience, in order to get a tenant, the testator let out this farm in two- portions*, of which one was designated the Upper Seian, and the other the tower Seian farm. Does the nephew' get both of them ? Paul' said, in the absence of proof that the testator intended t'o bequeath one only, the Upper or the LoWer, both Went to the legatee, because all the land was- held under one name' (Seian I'arm). (D. 31, 86, 1.) A testator bequeathed to his brother two farms — of Cassius and Nonius, with their osier-beds and woodlands. Does this include osier-beds and woodlands not embraced by the names of the farms, but which adjoined the farms, were purchaseil at the same time by the testator, and are necessary for the cultivation of- the farms ? Scaevola replied in the negative, and said that nothing passed to the legatee but what was included in the designation of the farms. {D. 33, 7, 27, 5. ) "To Titius I give and bequeath my Seian lands, just as they were purchased. " The purchase referred to included lands known as Gabian. This is not enough to pass them also. The best evidence is the a'ccOunts and correspondence of the testator showing whether he called these lands also by the name; of Seian. (D.-32, 91", 3.) 2. Legacy of a farm with its stock (fundus cum instrumento). " Instrumentum " included everything on a farm jilaced there for the purpose of its cultivation, and necessary for the cultivation. It thus included all the implements required for sowing, planting, or preparing the crop — as spades, ploughs, pruning- hooks, etc., for gathering the crop — as sickles, scythes, panniers, etc., and for storing the crop. (Tj. 33, 7, 8; pr.; D. 33, 7, 12, 1;D. 33, 7, 12, 10- D. SS;-?-, 18, 3.)' Alfenus was' of opinion that instrumentum applied only to implements, arid not to animals or slaves, but Ulpian held this to be an error ; but live stock was included only in so far as it was required for the cultivation of the farm. (D: 33, 7, 12, 2..) Thus if a flock of sheep is bequeathed, and it was bought for the sake of the mutton and wool, it is not included in "instrumentum; " but if the land is'fit only for sheep, then the sheep are included, as by them alone can the produce of pasture be obtained. (D. 33, 7, 9.) Again, if the land is used for bees, both bees and hives are contained in " instrumentum." (D. 33, 7, 10.) The same is true of birds reared and kept in islands on the sea. (D. 33, 7, 11.) If the principal value of the estate con- sisted in fishing, fowling, or hunting, then the dogs, and gamekeepers (being slaves), RIGHTS OF LEGATEE. 907 and all the necessary apparatus, are included in the bequest. (D. 33, 7, 12, 12 ; D. 33, 7, 22, pr. ; Paul, Sent. 3, 6, 41.) The slaves used for the cultivation of the land, as also the bailiff {viUicus) and overseers {moniforcs)^ are included in *' instrumentum ; " the latter only, however, when they were bound to give up the whole produce to their owner, receiving such mainten- ance as he thought fit ; not if they cultivated the farm for a fixed rent. (D. 33, 7, 18, 4 ; D. 33, 7, 20, 1.) When any of these slaves, or others employed exclusively on the farm (D. 33, 7, 12, 5), were included in a legacy of " instrumentum" their wives and children also passed to the legatee, in order to avoid the harshness of breaking up their families. (D. 33, 7, 1-2; 7.)' These things fell under the general description of "instrumentum " only when they were on the farm, and destined to remain there for its use. (D. 33, 7, 12, pr.) The mere fact that slaves- attached to a farm' were accustomed to be let out part of the year for hire, does not, however, take them out of the' category of " mstrumentum." (D. 33, 7, 12, 8.) So if they were taken away by the testator to attend on him for a temporary purpose, when farm operations were suspended, they still were considered as part of the stock of the land. (D. 33, f, 27, 1.) 3. A legacy of a farm with its iurnishing- (fundus instructus). "Instrumentum " involved the idea of a means to an end, but that end was to get the use of th« land ; it ' did not include household" furniture (suppelkx). " Fundus insti'uctus" although there was some variety of opinion on the subject, seems to have been considered as including not- only "instrumentum," but everything prepared for the comfort or pleasure of the owner. (D; 33, 7, 12, 27.) Such a legacy, therefore, includes' the furnitur* of the f arm'house, the clothes , gold, silver; wine, and utensils of the testator (D. 33, 7, 12, 28) ; also the domestic slaves (D. 33, 7, 12, 35) ; the books and librai-y (X). 33, 7, 12, 34) ;- but not the crop ready for the market. (D. 33, 7, 12, 30.) These things, however, are included only if they are permanently assigned [non temporis causayiov the furnishing of the farm. (G. 6, 33, 2.) 4. Legacy of a house simply. A legacy of a house includes a garden having an access to the house, if it was bought for the purpose of increasing the attraction of the house, and not as a market- garden: (D. 32, 91, 5. ) 5'. Legacy of a house cum inst'ntrnento. This includes whatever moveable is attached to' a house' for protection from the weather or lire, but not pictures and the like used only for ornament ; nor windows, unless they are intended, for shelter. (D. 33, 7,-12, 16;) But it includes vinegar stored for the purpose of putting out fires. (D. 33, 7, 12, 18.) Statues, if fixed, pass with the house as'part of the immoveable; (D. 33, 7, 12, 23.) 6. A legacy of a house fui'nished {domws instructa). This embraces all instruinenta, and also the various classes of household slaves. (D. 33, 7,12, 42.) Nothing passed by a legacy of land or houses, except the immovealiles and fixtures, unless they were expressly or by implication contained in the gift. {D. 33, 10, 14.) "As it is " {sicut est), is a legacy of implements and furniture. (D. 33, 7, 27, 4.) " Uti o-ptimus maximusque est" has not the same effect unless a contrary in- tention appears. (D. 32, 93, 4.) 908 LEGACY. The addition "utipossedi" is indecisive, and leaves open the questimi for argu- ment upon the particular wilL (D. 33, 7, 20, 9.) " To Gaiue Seius, my foster-son, I wish to be given such and such farms as they are furnished {ita nt instrueti sunt), and the upper house." Held tliat the house also is bequeathed with its furnishings, unless .a ^contrary intention is shown by the testator. .(J3. 33, 7, 20, 2.) If .a farm 'fully stocked :{fv.ndus inslj-uchis), -or with the stock {aim iiisirumento) ,as '.well, is left as a legacy, it is the same ; for if the farm is alienated, the legacy of the-.stQck..too is extinguished. (J. 2, 20, 17.) Paul explains, however, that this is merely a presumption from the language employed ; so that if the legacy were fundus et .instrumentum or fundus instructus, the alienation of the farm does not take away the legacy of the -stock [instrumeatum), but Jjabeo,agr«es,yvith the text. -(R. ,33, 7, -6,-) 7. A form of legacy .closely resembling those ■described was made when a farm or honee was bequeathed with whatever should be foxtnd on the premises at the time of testator's death. (Domum quaeque.mea ibi erunt qiium •moriar.) Such a gift includes the household slaves (D. 31, 32, 2), and money deposited in the house for safety (D. 32, 79, 1), but not money kept for loan (D. 32, 44), nor the claims against debtors {nomina),.(D. 31, 86, pr.) ; ;nor the written securities of debtors. (D.-33, 7, 18, 14; D. 32, 92, 1.) The gift includes all that forms part of ibe appurtenances of 'the house, although they are not actually present at the moment of-testator's death ; and, on the other hand, excludes what is only accidentally present- (D. 32, 78, 7.,) " To my 'freedwomaji, Pamphila, I wish to be given my Titian Earm, with its stock, and .whatever is oji the premises at my death." Stichus, a slave attached to the farm, was sent away .a year before the testator's death for instruction, and had not retijrned. Held that Stichus belongs to Pamphila, unless, the separation of Stichus from the :farm was intended by the testator to be final. ,{D. 33, 1, 20, € ; D. 32, 1^ pr.) "Let. my heir give to Titius the Cornelian Farm, and the slaves that shall be there at my death." A female slave belonging to the farm ran away, and during her fliglit had a child. She hfui not returned at testator's death. .Held that both she and the child belonged to Titius. (D. 30, 84, 10.) " I direct Pamphilus, my freedman, to pick out and reserve for himself .my Titian Farm and'the little Sempronian property, with the stock, and whatever sh.all be there on my death ; and also the slaves that livC; on the farm, except those I may manumit." This legacy includes the money left on the farms. The testator had had on the premises aetock of wine that he had soVd when alive, and actually received one-third of the price. H^ld .that the rest .of the -.wine not delivered belongs to Pamphilus. This carries the itestator's liberality further, as 'bequeathing what had actually been sold ; but the testator ■wa.s presumed to have this intention towards a freedman, who was a favoured person. (D. 33, 7, 27, 3.) III. A legacy of furniture {supeilex). RIGHTS OF LEGATEE. 909 Furniture (mpellex) is defined to mean the ordinary things required for the use of a house, but not plate or garments (D. 33; 10, 1) ; or what is included in any other of the well-known hinds of legacy, as provisions, ornaments, silver goblets, written securities, etc. (D. 33, 10, S ; D. 33, 10, 6, 1.) In early times of poverty, even articles of furniture, if made of ivory or other valuable substance, or studded with gems, were not considered to be eontained in this legacy, but with the growth of wealth this scruple was removed. (D. 33, 10; 7,. 1.).- IV. Legacy of aliment.. Such a legacy includes a due supply of food' ('cibaria), clothes, and house-room, because without these life cannot be sustained. It does^ not include, however, cost of education (D. 34, 1,- &), unless such is proved' to have been the testator's intention. {D. 34, 1, 7.} It includes also- an allowance of water, in, placea^ where water is sold. (D. 34, 1, l.> The quantity to be given wasthesame as the testator bad been accustomed to give ; if he had not begun the aliment, then the amoimt is to be fixed with reference to his wealth, and to the degree of affection he had for the legatee. (D. 34, 1, 22, pr.) If it varied in the lifetime of the testator, then the measure is what he was accustomed to give towards the end of his'liffe. (D. 34,-1,-14, 2.) If it was his custom, the allowance may be demanded in money. (©. 34, 1, 9, l.)~ If the testator fixed no-limit to'the duration of the legacy, it must be continued for the life of the legatee. (D. 34, 1, 1-4, pr.) If' it was left until the legatee reached puberty, a special interpretation was put upon the gift^ by Hadrian — namely, that it should be continued for boys up to eighteen, and for girls to sixteen. (D. 34, 1, 14,1.) When the duty of fniTiisiiing aliment was imposed on several heirs, a certain inconvenience resulted in each being required to give bis small contribution, and there- fore, according to rescripts- of Antoninus Eius,. if the testator had not confined the obli- gation to one ©f the heirs, an application w-as to be made' to- the judge to arrange so that one heir alone should' be liable for aliment to one person. (D. 34, 1, 3, pr.) V. Akin to theabov-e is a legacy o£ provisions (peims). This is a legacy of what may be eaten or drunli, or provision for the support of a family, including slaves and carriage horses (D. 33, 9, 3, pr.) ; also what is requu'ed for the use of friends, guests; clients, etc.- (D. 33, 9,. 3$ 6.)- VI. Legacy o£ wheat, wine, oil.. If a given quantity of^ wine, oil, or wheat fs T5eqiieatHeJ, and none is left by the testator, theheir must purchase the qua&tity and give it to the legatee. (D. 33, 6, 3, pr.) If no quantity is specified, then the legatee gets all that is left by the testator. (D. 33, 6, 7, pr.) In respect of quality, if none is mentioned, the heir is not bound to give the quality that the testator was accustomed to, or was- usually found in the place where he lived, but any quality he pleased. (D. 33, 6, 4.) " Wine " includes all' Beverages that- the testator was accustomed to signify by that name. (D-. 33,. 6, 9, pr.)' "Old wine" is to be- interpreted by the usage of the testator (D. 33, 6, 9, 4) ; but if none such appears, then ail wine that was a year old or upwards, i.e., was not new. (D. 33, 6, 10-11.) A legacy of wine- includes the. casks in which it is contained (D. 33, 6, 3, 2), but not those butts {dolia) that were used only for containing the wine in the course of its preparation. (D. 33, 6, 15.) VII. A bequest of books included all volumes, whatever the material on which grO LEGACY. they were written, but not the book-case. (D. 32, 52, pr, ; D. 32, 52, 3.) A legacy of a library includes tlie books. (D. 32, 52, 7. ) Vlll. Other common species of legacies were of firewood {lignum), material for building {materia), (D. 32, 65, pr.) ; wool (D. 32, 70, 9) ; jewellery {o:-namenta) (D. 34, 2, 25, 10) ; gold and silver (Paul, Sent. 3, 6, 85 ; D. 34, 2, 19, 13) ; silver vessels {vasa) (Paul, Sent. 3, 6, 86) ; clothes {vestis) (D. 34, 2, 23, 1) ; women's toilette {mundus muUebris), (D. 34, 2, 25, 10) ; or, more generally, whatever is specially assigned for the use or service of women {uxoris causa parata). (D. 32, 45 ; D. 32, 49, 3 ; D. 34, 2, 13.) (b.) Qualified Ownership. I. Legacy oi pecuKum. This legacy includes only what remains after the claims of the master are satisfied. (D. 33, 8, 5.) Deduction must also be made for damage done by the slave to a fellow-slave (D. 33, 8, 9, 1) ; or for a debt due to a fellow-slave (D. 33, 8, 8, 2) ; or to the heir. (D. 33, 8, 6, 5.) The heir, moreover, is not obliged to surrender thepecuUum until he obtains an indemnity against, the creditors of the. slave {cfeditoixs peculiares). (D. 33,8, 18.) 1. Are sums due "by a testator to a slave included in a legacy oi peculium ? The same Emperors (.Severus and Antoninus) decided by a rescript, that by a legacy of the peculium it is not implied that the slave can demand for himself the money he has spent on his master's accounts. (J. 2, 20, 20.) This rescript is criticised by TTlpian. (D. 33, 8, 6, 4.) He asks why should not the slave be entitled, if such was the intention of the testator ? (In the will of the testator was the sole foundation of the law of legacy.) At all events, says Ulpian, the slave must be allowed to set off what the master owes him against what he owes the master. {That is consistent with the terms of the rescript.) Again, says Ulpian, suppose the master has acknowledged in writing the amount he owes the slave, is that Slim not to be included in the legacy ? Pegasus, Nerva, and Atilicinus took the negative, which was also adopted by Ulpian, in deference to the rescript. Gneus Domitius bequeathed to his daughter her feculium., and an annuity he was wont to give her, but had not paid for two years. In his accounts, however, he charged himself as her debtor for '50 aw™. According to the terms of the rescript, that sum could not be recovered by the legatee. (D. 33, 8, 6, 4.) A testator bequeathed to his slave Stichus his freedom, 10 aurei, and his peculium. At the time of his death Stichus had spent money out of his peculium on bis master's business, and it was the custom of his master to repay him such excess. Held that the heirs must do the same. (D. 33, 8, 23, 1.) A slave bought his freedom and paid a sum to his master. Before the manumis- sion was executed the master died, bequeathing to the slave his freedom and peculium. Is the money paid for his freedom to be included in the peculium ? If the testator, on receiving it, at once credited it to himself as money received, it was no longer peculium; but it, pending the formal manumission, he continued to regard it as the property of the slp,ve, it rem,ains pccuUum, and must be given up to the slave. (D. 40, 1, 6 ; D. 33, 8, 8, 5.) A father bequeathed to his daughter, who was subject to bis potestfts, her peculium. After the will was made he recovered sums due to the daughter and credited them to his own account. This is presumptive evidence that he did not reckon them part of his daughter's peculium, but it is open to her to prove that he had pot fhat intention. (D. 34, 4, 31, 3.) RIGHTS OF LEGATEE. 9 1 I 2. Increase and decrease oipeculium. \fa.pecultum is left as a legacy, then without doubt all that is added to it or lost from it, in the life of the testator, is so much gain or loss to the legatee. But if after the testator's death, and before the inheritance is entered on, the slave acquires something, Julian says that if it is to himself when manumitted that the pea/lhim is left, then all that is acquired before the inheritance is entered on goes to the legatee, because the legacy vests from the day the inheritance is entered on ; but that if it is to any outsider that the pecrtlium is left, those acquisitions do not go with the legacy, unless the increase is one to property forming part of the peculiiim. (J. 2, 20, 20.) Julian says that all additions up to the entry of the heir go to the slave if he is - legatee, but that the pecuUum is, so to speak, arrested at the time of testator's death, when another person is the legatee. Nevertheless, if the pecuUum consists of slaves {vicarii) or cattle, the offspring of such slaves or cattle horn after the death of the testator went to the legatee. But the legatee could not claim what accrued from the lahour of the slave, or gifts made to him. (D. 15, 1, 57, 2.) The distinction was based on the presumed -nail of the testator. When the testator manumitted a slave and gave him his peculium, it was to be supposed that he meant the whole of it to go to him, hut where he left it to another there was no reason why the rule applicable to other legacies should be departed from, although in this case also the legatee would get everything if he could prove that the testator meant him to have it. (D. 33, 8, 8, 8.) If the slave gets his freedom, not at once but conditionally, the peculium is reckoned with all accretions up to the moment when he becomes free. (D. 15, 1, 57, 1.) 3. When a maniimitted slave gets his peculium. Unless, too, the peculium is left him as a legacy, it is not due to a manumitted slave ; and this although if his master manumits him in his lifetime it is enough if it is not taken away from him. So the late Emperors Severus and Antoninus decided by a rescript. (J. 2, 20, 20.) The same Emperors decided by a rescript that the slave's peculium is left him when he is ordered to be free if he gives in his accounts and out of it pays those that are outstanding. (J. 2, 20, 20.) Freedom was bequeathed if a slave rendered his accounts and paid 100 aurei. It was implied that he was not to give more. Brit a clause that the manumitted slaves should be inexcussi (literally, released from accounts) did not imply a gift of the peculium, but signified only that the accounts were not to he scrutinised too closely, and that the slaves were not to pay for their carelessness or neglect. (D. 33, 8, 23, 2.) IT. Legacy of Dowry (Dos). A legacy of a dowry to a wife included only what could be recovered by an .actio de dote. If a husband leaves his wife her dowry, the legacy takes effect ; because a legacy is something fuller than an action for dowry. (J. 2, 20, 15.) But if he leaves as a legacy a dowry he has not received, the late Emperors 9 1 2 LEGACY, Severus and Antoninus decided by a rescript that if the legacy is uncon- ditional it does not take effect, but if a fixed sum of money or some deter- minate object or deed of dowry is pointed out to. be first taken as a legacy, then the legacy takes effect. (J. 2, 20, 15.) Julia gave a dowry to Gaius on' his marriage witii Ber daughter Seia, and stipu- lated for the return of it. Gaius bequeathed the dowry to- his wife. She cannot recover it jmless it was clearly proved thait the testator intended his heirs te pay the amount to his wife as well as to repay it to her mother. (D-. 33,. 4, 16.) A husband bequeathed to his wife "so much as he had got, namely aO'awei.'" He had got really only 40. Held that 50 was due by the legacy.. (Dv 33, 4, 6, pr.)' A husband got slaves for his wife's dowry, and bequeathed to her money in lieu of them. The slaves died in the husband's- lifetime, and the wife survived him., .Held that she was entitled, to the money bequeathed. (D. 33, 4,- 8.), (C.) TJsufniet, etc. If a usufruct is giv&n simply, it is' regarded asa single legacy held for life, but if it is given frorn day to-day {in dies sinffulos} or in annual instalments, it is regarded as a number of succes- sive legacies, according to the interpretation, put upon- annuity, (D. 7, 3, 1, pr.) A usufruct may be bequeathed of all the- testator's effects, moveable or immoveable. (D. 33, 2, 37.) It was often difficult to determine whether a testator meant to give a legatee a usufruct or the- owuership.- " I bequeath to Gaius Seius the annual produce of my farm.-" TKTs is a legacy of a usufruct. (D. 33, 2,, 41.) "I bequeath to my wife the rents (redUus) of my farm for life.'' This is-not as usufruct, it is only an annuity for life ;- that is, not at right in- rem, but- only a^ right in personam. (D. 33, 2, 38; C. 33, 2, 22 ; D.- 33, 1, 21-, pr.) " I bequeath to Sempronius a sixth of the proceeds of sale of the fruits and vege- tables of certain land," This is not a usufruct,-but only a legacy of an annuity to the- extent of one-sixth. (D. 7, 1, 58, l.y " I desire that my slave Scorpus should work for my concubine- Sempronia." This is a legacy of the usufruct of Scorpus simply. (D. 33, 2, 24,- 1.) A testator appointed his sons heirs, and- bequeathed to his wife apparel, her- toilette materials, wool, flax, linen, and other things, and added, " I wi^h the ownership o£ these things above mentioned to- revert to my daughters or the survivors of them." This does not limit the wife's interest to !i usufruct,, but makes her a- trustee for. the daughters on her death, (D. 33, 2, 39.); 0; Legacy of Rights jn pemsonam.. I. Annuity, An annuity is a right to an' annual or monthly sum for life-, or for a fixed or indefinite time. (D., 33, 1, 18, pr. ;. D, 33, 1,. 23.) It is contrasted with usufruct, 1. A usufruct is one legacy, however long it may last.- An annuity fs regarded as. a number of successive legacies for as many years as the annuitant lives. (D. 3&, RIGHTS OF LEGATEE. 913 2, 10.) The payment is unconditional, but each sunoeeding payment is subject to the condition "if the annuitant lives," so that on the death of the annuitant it expires. (D. 33, 1, 4 ; D. 33, 1, 12. ) The same construction was adopted in pacta [D. 2, 14, 52, 3), but the opposite rule prevails in annuities created by stipulation. (D. 39, 635, 7.) In stipulatio the juris vincitZum uould not he broken by mere lapse of time. ' If you make a stipulation of this sort, " Do you undertake to give me 10 aurez a year as long as I live .' " the obligation is understood to be simple and unconditional, and is binding for ever. For a debt cannot be due for a time only. But your heir, if he claims payment, will be repelled by an exceptio pacti. (J. 3, 15, 3.) 2. An annuitant is entitled to payment for the whole year if he lives only u, part of the year (D. 33, 1, 22) ; so that if the annuitant lives but one year and a day, two years' payment will be due. (D. 33, 1, 5.) The usufructuary is entitled only to what he gathers. (D. 33, 1, 8.) 3. A usufruct dates from the entry of the heir, an annuity from the death of the testator ; so that if the heir should not enter for years, the annuity would still be due from the testator's death. (D. 36, 2, 12, 3.) 4. Prior to Justinian a usufruct was lost by any change of status, and testators used to guard against this by providing that as often as the legatee should suffer a change of status, the usufruct is re-granted to them. But an annuity was not lost by change of status so long as the legatee was free. (D. 33, 1, 8.) II. Legacy of securities {cldrograplia). A legacy .of the written security (c/nrograpJium) implied a legacy of the amount due by the testator's debtor (D. 30, 44, 5 ; D. 32, 59), but a legacy of the amount due does not imply a gift of the chirograph. The duty of the heir is not to pay the amount, but simply to allow the legatee to sue in his name. (D. 30, 44, 6 ; D. 30, 105.) Things both corporeal and incorporeal can be left as legacies. Therefore what is due the deceased can be left to anyone, so that the heir must supply the legatee vi'ith his actions, unless the testator in his lifetime exacted the money, — for in this case the legacy is extinguished. (J. 2, 20, 21.) III. Legacy of release of a debt to a debtor. 1. When there is one debtor only. If a man leaves a release to his debtor, the legacy is valid, and neither from the debtor nor from his heir nor from anyone else in the position of his heir can the creditor's heir make a demand. On the contrary, he may be summoned by the debtor to release him. A testator, too, can order that for a time the heir shall not make a demand. (J. 2, 20, 13.) The release here referred to is the formal release by acccptilatio, (D. 34, 3, 3, 3.) The heir of the debtor is not released, if the testator indicates an intention that he should not. (D. 34, 3, 20, pr.) Thus, " Let my heir refrain from demanding the debt from Lucius Titius alone." (D. 34. 3, 8, 3.) ^ M 9^4 - LEGACY. 2. When there are several debtors. If the correal debtors are not partners, the release of one does not release the others ; and hence the debtor released can defend himself only by exceptio pacti, and cannot demand an acceptilatio, because that would release his co-debtors as well. But if the correal debtors are partners, the release of one is the release of all, because otherwise the person released could be sued by the other partners if they were com- pelled to pay. In this case the proper mode of release is acceptilatio. (D. 34, 3, 3, 3.) 3. Sureties. The legacy of a release to a principal releases ako the surety, otherwise the principal would be bound to pay the surety, and his release be illusory. (D. 34, 3, 10.) But a release of the surety is not a release of the principal. (D. 34, 3, 2, pr.) If, again, the surety has intervened gratuitously, and has no action against the principal debtor in the event of his being obliged to pay the debt, the release of the principal does not operate in his favotir. (D. 34, 3, 5, pr.) IV. Legacy of a sum due to a creditor. On the contrary, if the debtor leaves his creditor what he owes him, the legacy is void if there is no more in it than in the debt, because the creditor has nothing more by the legacy. But if the debt is due on a certain day, or conditionally, and the legacy is unconditional, the legacy is valid, because it is to be paid forthwith. If, however, in the lifetime of the testator, the day comes or the condition is fulfilled, Papinian wrote that none the less the legacy is good, because it once wa.s in force ; and this is true. For the opinion of those that hold a legacy extinguished because it has come into a case in which it could not begin, has not been adopted. (J. 2, 20, 14.) A testator bequeathed to his wife 50 aurei, which he said he had received from her as a loan on a written security. If there was a real loan, the legacy was void (D. 34, 3, 28, 13) ; but if the wife was defeated in suing for the debt she could recover the legacy. (D. 34, 3, 28, 14.) Gains has stipulated with Maevius for Stichus, and Titius has bequeathed Stichus from Maevius, his heir, to Gaius. Can Gaius sue both for the stipulation and the legacy ? Certainly, because Titius does not by will release Maevius. But if there was no valuable consideration for the stipulation, Maevius can protect himself by the rule that he is not compelled to give the same thing twice ex causa lucrativa. (D. 30, 108, 4.) Titius bequeathed Stichus to Gaius. Sempronius bequeathed the same Stichus to the same Gaius, but on trust to give Stichus to Julius. Maevius was heir to Titius, and also to Sempronius. Held that he must give Stichus and also his value to Gaius, because Gaius was obliged by one will to give up Stichus. (D. 30, 108, 5.) Maevius bequeathed a farm to Seius and Sempronius conditionally. The heir of Maevius bequeathed the same farm to Seius under the same condition. Was this legacy a discharge of the debt due by the heir to Seius ? If the condition happened, part of the farm would be due to Seius twice over. Papinian said this was most unlikely, and that the intention of the heir of Maevius was to bequeath to Seius the part that went to Sempronius by the first will. (D. 31, 66, pr.) D. Legacy op Hereditas. A person could not bequeath his own universal succession to a legatee, but he could bequeath the whole of an inheritance acquired from another person. (D. 32, 29, 2 ; D. 31, 88, 2.) He could also bequeath a part of his own universal succession. CO-LEGATEES. 9 1 5 in which ease the legatee was called legatarius paHiarius. If no part is mentioned, the legatee gets half the inheritance. (D. 50, 16, 164, 1.) The heir was bound to divide the property with the legatee, or give an equivalent. (D. 30, 26, 2.) CO-LEGATEES. If the same thing is left as a legacy to two persons, either jointly or severally, and both come to the legacy, it is split between them. If one of the two fails, either because he despises the legacy, or because he dies in the lifetime of the testator, or in any other way fails, the whole belongs to his co-legatee. A legacy may be left jointly, as when one says, " To Titius and Seius I give and leave the slave Stichus ;" or severally, as "To Titius I give and leave the slave Stichus, to Seius I give and leave Stichus." But if he said expressly " the same slave Stichus," the legacy is understood to be equally several. (J. 2, 20, 8.) According to the law as settled by Justinian, the difference between those two forms was as follows : — When two persons were co-legatees conjunctiin, i.e., united in the same disposition for the same object (elsewhere called re et verbis, D. 50, 16, 142), each had a right to take the share of the other, if it became vacant, before the title to the legacy vested {dies cedit). They need not take this part unless they pleased ; but if they did, they must accept with it the burdens that may have been imposed on it. If there are several co-legatees, and some refuse, the others may take the vacant shares. When the legacy is disjunctiTn [i.e., the same thing given pru indiviso by different dispositions), and all accept at the time when the legacy vests, they take in equal shares. One cannot demand the thing bequeathed, leaving to the others to exact the value of it, unless the testator has expressly so appointed. If, however, some do not take, the person in whom the legacy vests gets the whole. The proper interpretation of a disjunctive gift is that the testator gives the whole to the legatee first mentioned, and subsequently encroaches on the legacy by appointing additional legatees for the same thing. Hence if these or any do not take, the legatee gets his whole bequest undiminished ; in other words, the accession of their parts is independent of the will of the legatee. Hence also, the accepting legatee is not necessarily subject to the burdens imposed on the lapsed shares. The question in each particular case depends on the testator's intention, but the object of a disjunctive legacy was that each legatee should bear his own burdens solely, and if the testator wished a different result, there was nothing to hinder him doing so by explicit language. (C. 6, 51, 1, 1). In the same constitution Justinian abolished the old law relating to cnduca (C. 6, 51, 1,2), but left intact the law relating to legata ereptitia ; i.e., those which were taken away from unworthy {indigni) legatees. (C. 6, 51, 1, 12.) When a house was bequeathed to testator's freedmen, and by the same will a certain portion of it to Tortunius, it was held that the legacy of the house to the other freed- men was diminished just to that extent. (D. 32, 41, 1.) Justinian confirmed this interpretation ; and generally when a thing is left to one, and afterwards any part of it to another, the first legacy is held to be pro tanto reduced. (C. 6, 37, 23. ) A testator leaves a usufruct to "Attius, Seius, and my heirs." Attius gets one- third, Seius one-third, and the heirs, whatever their number, the remaining third. (D. 7, 2, 7.) DONATIO MORTIS CAUSA. There is also another mode of acquisition — namely, gift. Of gifts there are two kinds — in prospect of death, and not in prospect of death. (J. 2, 7, pr.), 9l6 LEGACY. A gift in view of death is one made because the approach of death is sus- pected, when a man gives something away on condition that if the common lot of man befalls him, he that received it shall have it ; but that if he survives the giver shall take it back, or if he repents of giving it, or if he to whom it is given dies first. These gifts in prospect of death have been brought down to the model of legacies in every respect. Men learned in the law had long held it doubtful whether it ought to be made like a gift or like a legacy. Of both cases it gave some of the characteristics, and some sought to drag it to the one kind, some to the other. But we settled that in nearly every point it should be numbered with legacies, and that it should proceed according to the form given it in our constitution. In short, a gift in prospect of death is when one wishes to have the thing himself rather than that he to whom it is given should have it, but that the latter should have it rather than his heir. So too, in Homer, Telemachus makes gifts to Peiraeus : — "Peiraeus, for we know not at all how these deeds shall be, if the haughty suitors should slay me by stealth in the halls, and divide among them all that was my father's, I wish you to have these things and enjoy them rather than one of them. But if among them I shall plant slaughter and an evil fate, then to me in my joy bring these things to my home in thy joy." (J. 2, 7, I.) A gift mortis causa is not complete until the death of the donor, and is revocable during his life. (D. 39, 6, 32 ; D. 39, 6, 16 ; D. 39, 6, 30.) It may be made not only during sickness, but in view of old age or of any peril to life. (D. 39, 6, 3-6.) A gift in anticipation of death {donatio mortis causa) is completed by the delivery of the thing to the donee, or to any one for him to be given to him, even after the donor's death. Justinian required five witnesses, whether the gift was in writing or not, as in wills and legacy. (C. 8, 57, 4.) If the donor recovers or escapes the apprehended peril, he can sue the donee by utUis actio in rem or condictio (D. 39, 6, 30 ; D. 39, 6, 29), but must pay all necessary and beneficial expenditure incurred by the donee while the thing was in his possession. (D. 39, 6, 14.) The object of a gift mortis causa need not be property. Titia gave to Ageria the written obligations of her debtors Maevius and Septicius, requesting her, if she (Titia) died, to give them to the debtors ; if she survived, to return them to her (Titia). She died, leaving Maevia her heir. Ageria delivered the chirographs to the debtors. Maevia cannot recover the debts. (D. 39, 6, 18, 2.) A nephew, creditor to his uncle for a sum, and desiring to release him on his death (nephew's), wrote that the chirographs whereon they were should be void. On the death of the nephew, the uncle could defeat his heir by the plea of fraud {doli mali exceptio). (D. 39, 6, 28.) Generally spealiing, as stated in the text, gifts mortis causa are assimilated to legacies. (D. 39, 6, 37, pr.) The differences between them resulted from the circum- stance that a donatio did not depend in any manner upon the validity of a will, and was equally good whether the donor died testate or intestate. (D. 39, 6, 25, pr.) But the donatio resembled legatum in the following points:— (1.) It was subject to the deduction of the Falcidian Fourth. (C. 8, 57, 2.) (2.) It was rescinded by the insolv- ency of the testator (D. 3.5, 2, 66, 1) ; or (3) if the donee died before the donor. (D. 39, 6, 23.) But a substitute might be made for such a case, after the analogy of wills (si ipse caperenon potest). (D. 39, 6, 10.) (4.) A donatio mortis causa was re- voked if the donor suffered capital punishment. (D. 39, 6, 7.) (5.) A Senatus Can- sultum made every one who was by law incapable of taking a legacy equally incapable of receiving by donatio mortis causa. (D. 39, 6, 35, pr.) But every one that could DONATIO MORTIS CAUSA. 917 take a legacy could also take by donatio mortis causa. (D. 39, 6, 9.) (6.) Those who could make a will could give a donatio mortis causa (D. 39, 6, 15) ; but even persons who could not make a valid will were allowed to make donations mortis causa. This a, JUius famUias could do with the consent of his father, although such consent gave no validity to a will matte by him. (D. 39, 6, 25, 1.) INVESTITIVE FACTS. In order to determine whether a given person was a legatee, it might be necessary to consider a multiplicity of circum- stances. These we may arrange in the following order ■.^^— A. Making of Legacies. (a.) Simple Legacy. (b.) Modality of Legacies. (c.) Restrictions on Legacy. B. Revocation of Legacies. A. Making of Legacies, (a.) Simple Legacy. T. The old legatum could be made only by will. (D. 35, 1, 38.) Hence if the will became invalid, or the heirs named in the will refused to take, the legacies fell to the ground. So a trust contained in an ineffective will failed. (D. 32, 11, 1.) Even legacies left to the Emperor by an imperfect will were disallowed. (D. 32, 23.) If, however, an imperfect will was held to be binding as codicilli on the heirs ab intestato, the legacies were valid. (C. 6, 42, 29.) We have already seen (p. 829) under what circumstances a will was allowed to take effect as codicilli. It was not a duty of persons appointed heirs by will to accept the inheritance in order to prevent the failure of the legacies. (D. 29, 4, 17.) Suppose, then, the person appointed heir by will could also get the inheritance ab intestato, was he allowed to renounce under the will, and thereby get rid of the legacies? This was frustrated by an edict of the Pr«tor, by which an heir, if he evaded the wishes of the deceased, was nevertheless compelled to pay the legacies, just as if he had taken under the will. (D. 29, 4, 1, pr.) This stringency was, however, exercised only when the heir had deliberately retused or neglected to take under the will (D. 29, 4, 1, 6), and with the object of defeating the legatees. (D. 29, 4, 21.) If the heir took ab inlesiato, not knowing that he could take under a will, the edict did not apply. (D. 29, 4, 1, 4.; 9l8 LEGACY. A legacy before the appointment of an heir was formerly void ; because of course wills owe all their force to the appointment of the heir, and there- fore his appointment is, as it were, the source and foundation of the whole will. On the like principle no grant of freedom could be made before appointing an heir. But we thought it unworthy of the law to follow the mere order of writing (a thing even antiquity itself thought fit to revile), and to despise the testator's wishes. By a constitution of ours, therefore, we have amended this fault too, so that it is lawful, either before appointing an heir, or in the midst of appointments of heirs, to leave a legacy, and much more freedom, whose use is still more to be favoured. (J. 2, 20, 34.) II. Who could be charged with the payment of a legacy? 1. At first no one except an heir taking under a will could be required to pay a legacy. (Ulp. Frag. 24, 20.) When codicilli were introduced, the heir ab intestato could be charged, and under the latitude sanctioned by trusts, legatees also, and donees mortis causa. (C. 8, 57, 1.) Lastly, any person what- ever, although neither heir nor legatee, that received a benefit from the deceased by his death, could be required to pay a legacy. (D. 32, 1, 6.) A person could not, after accepting any benefit from the deceased, repudiate a trust imposed upon him. (D. 34, 1, 15, pr.) But no trust could be imposed on one who ought to have been appointed heir, and was either passed over in silence (D. 32, 2 ; C. 6, 42, 31) or disinherited (D. 30, 126, pr.), although such persons might succeed ab intestato. Money was deposited by Titius with Gaius. Titius by his will charged Gaius to give the money to Sempronius. According to a rescript of Antoninus Pius, the heir of Titius cannot demand the money from Gaius, who must give it up to Sempronius. (D. 30, 77.) A father, emancipating his son, gave him all his property except two slaves, stipu- lating that the whole should be restored on demand, or on the son's death, and that meanwhile the son would not impair the property. On his death-bed the father wrote a letter to his son, charging him to pay certain sums to certain persons, and to manumit the slave Lucrio. It appears that at first, since the son was not an lieir or legatee, the letter could not make him a trustee. But by that rescript of Antoninus Pius, debtors could be subjected to trusts, and the letter of the father was tantamount to a demand of a portion of the property in terms of the stipulation. (D. 32, 37, 3.) A testator bequeathed to his mother her own farm, charging her on her death to give it to his wife, Flavia Albina. Aiter testator's death, the mother acknowledL;eil before a magistrate her willingness to -obey the son's injunctions, and to deliver the farm to llavia Albina, provided she got the year's rent. She never delivered the land nor received the rent. Could she sell the farm ? Yes ; because what was bequeathed to her was already her own, and the trust, therefore, failed, but she was bound by the trust if she had accepted any other benefit under the son's will. (D. 32, 37, pr.) If a person that takes nothing under a will is charged with a legacy, he cannot, except the legacy be for aliment, call upon the heir to give him the means of performing the trust. UNCONDITIONAL BEQUESTS. 919 Titiiis is appointed heir, and tlie testator charges Gaius-Seius (who is not made heir) to pay ]0 aurei to each of testator's foster-children out of the property Seiua shall recover from testator's inheritance ; also out of the proceeds to give them main- tenance, the balance to be given to Numerius. This trust gives Gaius-Seius no right to act as heir and sell the testator's property, but he can compel Titius, saving the ITalcidian fomrth to give him enough to pay the aliment. He cannot exact the balance in favour of Numerius. (D. 34, 1, 9, pr.) 2. No person can be burdened with a trust or legacy for more than he has actually received through the bounty of the testator (D. 30, 26, pr. ; D. 30, 78 ; D. 30, 96, 2 ; D. 30, 122, 2), even when he has refused or neglected to demand what has been left to him. In this case, however, he is bound to transfer to the legatee his right of action against the heir. (D. 31, 70, pr. ; D. 32, 8, pr.) Seius left his inheritance to Maevius on trust after the death of Maevius for Titius. Maevius appointed Titius his heir on trust to surrender his inheritance, and also the inheritance of Seius, on his death, to Sempronius. Seeing that Titius was entitled to the inheritance of Seius on the death of Maevius, could he be compelled to surrender it to Sempronius ? If the income he derived from the estate of Maevius, before his death, was equal in value to the inheritance of Seius, then he has got the equivalent of it, and must restore all, on his death, to Sempronius. (D. 31, 77, 31.) A testator bequeathed land to Gaius on trust after his death to give it to Sem- pronius ; and he also charged Gaius to pay Titius 100 aurei. Seeing that nothing else was left Gaius, must he pay the 100 aurei ? If Gaius lived so long that the income of the land amounted to 100 aurei, he must pay it to Titius ; but if not, and the legacy is to take effect on the death of Gaius, it fails altogether. {D. 30, 114, 3.) Gaius must give security for payment of the legacy in the event of his obtaining enough to satisfy it. (D. 30, 114, 4.) A legacy of 100 aui'ei on trust, after death to give 200 aurei, is good as a trust only for 100 and interest. A legacy of 100 aurei on trust to give a farm, if the legatee accepts the money, is good for the farm, although he alleges that the farm is worth more. (D. 31, 70, 1.) Titius has a usufruct of a farm of which Gaius is owner. Titius gives up the farm to Gaius, before his death, as a gift mortis causa. The advantage derived from the farm during the lifetime of Titius is sufficient to support a trust imposed upon Gaius. (D. 32, S, 3.) To Titius is bequeathed a nsufruct of land, and out of it he is to give aliment to freedmen. On the death of Titius the usufruct is extinguished ; hia heirs cannot be required to go on paying aliment. (D. 34, 1, 20, 2.) 3. Tn certain bequests legatees cannot be charged to pay any legacies. 1°. When the bequest has a value that cannot be measured in money. Thus a trust cannot be charged on a slave who receives only his freedom by will (D. 50, 17, 106), nor on a person charged to manumit a slave, although he thereby acquires the valuable rights of patronage. (D. 30, 94, 3.) If, however, the liberty of the slave is deferred to a future day, the profits from his labour previous to that time formed a fund on which a trust might be imposed. (D. 32, 3, 1.) 2°. No trust can be charged on a creditor that receives the amount due to him by willj imless he receives some advantage over and above the debt. (D. 32, 7, 2.) Thus 920 LEGACY. =■■ trust may be charged on a legacy of a dowry, in so far as the wife gains by a speedier payment. [D. 33, 4, 2, pr.) III. Words that create a legacy. This depended entirely on the intention of the testator, according to the true con- struction of the words employed. " I believe that you will give," was held binding. (D. 30, 115.) " I commend him to you," was not considered enough to impose a trust, according to a decision of Antoninus Pius. (D. 32, 11, 2.) "I do not doubt that whatever my wife gets she will give up to her children." This was held to be valid, according to a rescript of Marcus Aurelins, on account of the confidence arising from the relation between husband and wife. (D. 31, 67, 10.) " A legacy of 100 aurei was left to a freedman, and the testator added, " I know that everything I leave you (Pamphilus) will come to my children, knowing as I do your affection for them." Tlie heirs of Pamphilus must give the 100 aurei to the children, although the testator's intention was hardly expressed with sufficient clear- ness. Here, again, the special relation of the parties governed the construction. (D. 32, 39, pr.) " My son, I ask you to manage well the lands bequeathed to yon, in order that they may go to your children." This is a bequest of the lands to the children after the death of their father, the legatee. (D. 32, 11, 9.) A testator bequeathed to Felix his liberty and the usufruct of certain land, saying, " I think you will get the ownership of it if you keep on good terms with my heir ; and also do you, my heir, do everything to maintain an amicable relation." This did not create a trust of the ownership. (D. 33, 2, 32, pr.) A widow on her marriage gave a mandate to her two sons by her first husband, that they should stipulate for her dowTy in every event liy which the marriage could be dissolved ; so that even one of the sons could demand the whole dowry. During the marriage (me of them died, and his mother wrote a letter to the surviving brother, requesting him to sue for only half the dowry, and to be satisfied with that. She afterwards died. Held that the son could recover only half the dowry, and that an implied trust was created in respect of the other half for the husband, who took by survivorship. (D. 32, 37, i ; D, 32, 11, 4.) A mother deposited a written gift of certain lands in a temple without the know- ledge of her son, and afterwards wrote a letter to the keeper of the temple to this eiiect, " I desire the written expression of my will to be delivered to my son after my death. " This imposes a trust on the heirs ab intestatn on behalf of the son as legatee of the lands contained in the instrument of gift. (D. 31, 77, 26.) But such a direc- tion was not held to create a trust, except in the case of a son or other near relation. (D. 39, 5,31,3.) A father gave a dowry and other property to his daughter on her marriage. He appointed her as heir along with her brothers, if she brought the dowry and other property into hotchpot.' She did not enter on the inheritance, and the wiU was con- strued as a trust in her favour for the dowry and other property. (D. 37, 7, 8.) A grandfather bequeathed 100 aurei to each of his daughter's children, and said that if it had not been for some misfortunes — one a, bad debt of their father's for 15 aurei— he would have given them larger sums. These grandchildren became heirs to their father, and so were liable for the debt. Held that this declaration by their grandfather was an implied release of the debt. (D. 44, 4, 17, 1.) A woman appointed heirs her son and his sons, substituting them reciprocally for one another, 8h« reiiuested her son to emancipate his sons, but did not ask him to give up the inheritance to them. The son entered on his mother's inheritance. Held UNCONDITIONAL BEQUESTS. 921 that he must both emancipate his children and give up their share of the inheritance, otherwise the first part of the will could have no eflfect. {D. 35, 1, 92.) Titia appointed her children Sempronius and Maevia heirs in equal shares, and requested Maevia to manumit by will her slave Stichus, because she intended to leave so many slaves to her by codicUli. She bequeathed no slaves by codiciUi. Held that Maevia could not claim any slaves under that general clause, and that she was, there- fore, not bound to manumit her slave Stichus. (D. 31, 34.) " Out of the 100 aurei I have bequeathed to Titius, let my heir give 50 to Seius." There was no such legacy to Titius. Held that these words of description did not amount to a legacy of 60 to Titius. (D. 35, 1, 72, 8.) A father appointed his daughter heir, and substituted her son, and bequeathed 200 aurei to the daughter's husband, saying that he would be content with that, because he had made his daughter and her son heirs, and recommended them to share all his property with him. The daughter bequeathed the whole inheritance away from her husband. Held that he was a legatee only for the 200 aurei. (D. 36, 1, 78, 8.) IV. The intention of the testator must be declared with reasonable certainty. Two things must be certain: (1) the object bequeathed, and (2) the person to whom the bequest is made. This certainty may be impaired or destroyed in two ways. The legacy may be perfectly clear, but the testator may have bequeathed what he did not intend to bequeath, or to a person he did not wish to be legatee, through some error. Again, the language of the testator may be obscure or suscep- tible of more than one meaning, or not susceptible of any clear, probable meaning. There may be mistake or ambiguity. The testator has either certainly done what he did not intend to do, or he has not clearly signified what he did intend to do. The sources of error are comparatively few, but the sources and varieties of ambiguity are endless. For convenience, there- foi'e, the subject of interpretation is reserved for separate examination — a course the more expedient, because many of the examples belong to the department of Rights of Legatee rather than to the Investitive Facts. Here then attention will be confined to three things: (1) certainty in the object; (2) certainty in the person of the legatee ; and (3) essential error ; that is, such error as is fatal to the legacy. 1. Certainty in the object of the legacy. A legacy was good if there were any distinct means of ascertaining the object of the bequest. A testator bequeathed Stichus. This is intelligible enough, but it turned out that the testator had several slaves of that name. It was open to any legatee to show which Stichus was intended ; and failing such evidence, the heir could give whichever he pleased, but he must give one Stichus. (D. 30, 32, 1.) A testator bequeathed an annuity without saying for what sum. According to Mela, the legacy was void for uncertainty, but Nerva said that the sum might be determined by evidence, either from the amount the testator had been in the habit of 922 LEGACY. allowing the legatee, or from tlie rank and dignity of the legatee. It was for the judge, according to the latter opinion, to impart certainty and completeness to the legacy. This was also the opinion of Ulpian. (D. 33, 1, 14.) A testator manumitted a young slave Stichus by will, and charged his heir to pay for teaching him a trade, by which he might be able to maintain himself. The testator did not specify any trade. But Valens (deciding against Pegasus) held that it was for the Prsetor or an arbiter to supply the omi.«sion, having regard to the wishes of the deceased, and the age, position, disposition, and talent of the slave. (D. 32, 12.) A testator left a legacy to the town of G-raviscas (not saying tor how much) for the repair of the road leading from that place to the Via Aurelia. Unless the sum required is enormous, or the estate of the testator small, in which cases the presump- tion was that he had not intended to give his whole property to the repair of a road, the judge would determine the exact sum to be given, keeping in view the value of the inheritance. (D. 31, 30.) 2. Certainty in the person of the legatee. A legacy left to an indeterminate person was of no effect. Now a person appears to be indeterminate when a testator adds him with an indeterminate notion of him in his mind ; as, for instance, if the legacy were left thus : " To the man that comes first to my funeral, let my heir give ten thousand sestertii." The rule of law is the same if he gave a legacy generally to all — " Whoever comes to my funeral." In the same case is what is left thus, " Whoever bestows on my son his daughter in marriage, to him let my heir give ten thousand sestertii." So also a legacy of this nature, " Whoever, after this will is written, shall first be named consuls,'' is held equally to be a legacy to an indeterminate person ; and, in fine, there are many other examples of this sort. (G. 2, 238.) But a legacy is rightly left to an indeterminate person if he is determin- ately pointed out, as, " Of my kinsmen as they now are, whoever comes first to my funeral, let my heir give him ten thousand sestertii" (G. 2, 238.) Freedom, too, it is held, cannot be given to an indeterminate person, for the lex Fufia Caninia orders slaves to be freed by name. (G. 2, 239.) A tutor also must be determinate when he is appointed. (J. 2, 20, 25 ; G. 2, 240.) To indeterminate persons it was not allowed of old to leave either a legacy or a trust. Not even a soldier could leave anything to an indeter- minate person, as the late Emperor Hadrian decided by a rescript. Now a person seemed to be indeterminate when the testator added him with an indeterminate notion of him in his mind ; as, for instance, if one were to say, " Whoever bestows on my son his daughter in marriage, to him let my heir give such and such a farm.'' A legacy, too, left to the first persons to be named consuls after the will was written, was held to be equally a legacy to an indeterminate person ; and in fine, there were many other forms of this sort. Freedom, too, it was held, could not be given to an indeterminate person, for the received opinion was that slaves must be freed by name. But a legacy was rightly left if the person was determinately pointed out : that is, to an indeterminate person from among determinate persons, as, " Of my kinsmen as they now are, if one takes my daughter to wife let my heir give him such and such a thing." But legacies or trusts left to inde- UNCONDITIONAL BEQUESTS. 923 terminate persons and paid by mistake could not be demanded back ; so the sacred constitutions had provided. (J. 2, 20, 25.) This rule was extended to a number of cases (such as that of alieni posthumi, if conceived in the Hfetime of the testator or person whom they succeeded ah intestato) where the legatees were perfectly certain, until the hardship of such technical rigour led to an amendment of the law. (C. 6, 48.) A testator manumits Stiohus by wiU. He has more than one slave named Stiohua. Held that none of them can get the benefit of the bequest unless proof is given to show which was meant. (D. 40, 4, 31 ; D. 34, 5, 27.) So if a legacy is left to Stiohus, and there are two of that name, whichever proves that he was intended, becomes the legatee. A testator bequeathed in his will house-room {habitatio) to all his freedmen whom he should name in codiciUi. He named none. The legacy fails. (D. 33, 2, 18.) A legacy is given to each of two called Titius. The testator revokes his legacy to Titius, without saying which. The legacies of both are revoked if neither can prove that the other's legacy alone was intended. (D. 34, 4, 3, 7.) 3. Error. Mere clerical errors, such as the omission of single words, dare (D. 30, 106), or volo (C. 6, 42, 10), do no harm, particularly if the meaning of the testator can be made out from the context. If the writing is illegible or unintelligible, such part only is struck out ; what is legible remains valid. (D. 50, 17, 73, 3.) The addition of statements not essential to the legacy, if they are erroneous, do not impair- the legacy. Superfluities do no harm. (D. 50, 17, 94.) An error in the object of the bequest (in corpore) is fatal. A testator wishes to bequeath plate ; but what he writes or dictates (it is im- material which) is gai-ments. The error is fatal. {D. 28, 5, 9, 1.) A testator wishing to leave a legacy of garments used the words " supeUex " (furni- ture), thinking that that word covered garments. The error is fatal, because it is an error, not in the name of a person, but in the name of a thing. (D. 30, 4, pr.) A testator left a legacy of 200 when he meant only 100. Held that 100 was due, because it is in the 200. (D. 30, 15 ; I>. 28, 5, 9, 4.) Suppose the testator wrote 100 when he meant to give 200, the legacy was valid, but was the amount to be 100 or 200? The answer given is 200. (D. 28, 5, 9, 2.) If a testator made a mistake in the name, the after-name, or the first name of a legatee, provided the person was agreed on, the legacy none the less takes effect. The same rule is observed in regard to heirs, and rightly. For names have been discovered in order to point out men, and if in any other way it is understood who they are, it makes no difference. (J. 2, 20, 29.) Nearly akin to this is the rule of law, that a false description {demonstratio) does not annul a legacy. If, for instance, one leaves a legacy thus : " Stichus my slave home-born I give and leave," then even although he is not home- born but was bought, yet as the slave meant is agreed on, the legacy holds 924 LEGACY. good. Agreeably to this also, if he describes him as " Stichus the slave I bought from Seius," and he was bought from somebody else, the legacy holds good if the slave meant is agreed on. (J. 2, 20, 30.) _ A demonstratio is a statement — an adjective clause — not necessary to determine the object of the legacy. This is gener- ally the case when the qualifying or descriptive statement is added to the name of a person, the name being sufficient to mark the legatee or other object of the legacy with certainty. The rule, then, may be expressed thus : — when a part of the description is sufficient to identify the object or person, and part of the description is unnecessary, the truth or falsehood of this superfluous addition is not material. But if the whole of the description is necessary and part of it is false, the legacy fails. In this case the description is called " deter minatio." A testator had two slaves — Philonioua a baker and Flaccus a fuller. He bequeathed to his wife Flaccus the baker. If the testator is proved to have known the names of the slaves, Flaccus will be the legacy to the wife ; but if not, she gets Philonicus the baker. (D. 34, 5, 28.) " I bequeath to you'the sum Titius owes me." Titiua owes nothing, and as there is nothing to determine the sum except that circumstance, the legacy fails on account of uncertainty in the object. {D. 30, 75, 1.) *'I bequeath to you 10 aurei, the sum I owe to Titius." The testator owes nothing. This is a valid legacy tor 10 aurei, because, rejecting the second clause, there is a definite legacy in the first clause. The recital is in any case nugatory, because a testator cannot bequeath a sum he owes. (D. 30, 75, 1.) " I bequeath to you the 10 aurei Titius owes me." Here the language of descrip- tion is manifestly essential, because what the testator means to bequeath is not 10 aurei, but the debt of Titius. If there were no debt, the legacy fails ; because even if there were a debt the heir is not bound to pay the money, but only to transfer his right of action against the creditor. (D. 30, 75, 2.) A testator bequeathed all his lands, extending to the plafce called Galas, on the borders of Galatia, under the charge of his first bailiff. Part of the land under this bailiff adjoined Cappadocia, not Galatia. Held that the erroneous reference to the boundary is immaterial, since the land is sufficiently ascertained by the description that it is under the charge of a particular bailiff. (D. 82, 35, 1.) A testator bequeathed the two polished plates he had bought in the place where image-vendors are. The testator bought two plates as described, but they were en- graved, not polished. He made his will only three days before his death, and had bought no other plates. Held that the description " polished " is immaterial, since without it the plates can be identified. (D. 32, 102, 1.) "Let my heir give to Titius what is due to me by the will of Sempronius. " The testator after making his will made a novation of the debt, so that it was no longer due by the will of Sempronius, but by the promise of the heir of Sempronius. The description thus became inaccurate. Nevertheless, the description as it stood was sufficient to identify the object of the legacy, which was accordingly valid. (D. 31, 76, 3.) " To Pamphila I wish to be given 400 aurei, made up as follows : — So much from Julius my steward, so much from my property in camp, and so much from cash in possession." The testator survived many years, and at his death there was no money UNCONDITIONAL BEQUESTS. 925 answerins the description given in the legacy. The legacy wag valid, because the description was merely of the nature of an instruction to the heir, Rhowing whore he could with convenience get the money. Its falsity was therefore immaterial. (D, 30, 96, pr.) A testator and his brother were joint-owners of certain property. The testator made his daughters heirs, and saying that the property wag valued at 2000 aurei, requested them to accept from their uncle Lucretius Pacatus 1000 aurei for their share. The testator survived several years, and the property greatly increased in value. Were the daughters bound by the statement of value to accept 1000 aurei from their uncle ? It was held that they were entitled to their half of the property according to its true value at the time of testator's death, as the figures mentioned by him were merely descriptive, and not intended to restrict the bequest. {D. 31, 89, 1.) Much more an untrue ground {falsa caitsd) does no harm to a legacy ; as when one says, " To Titius, because in my absence he looked after my busi- ness, I give and leave Stichus ; " or, " To Titius, because by his advocacy I was cleared of a capital charge, I give and leave Stichus." For although Titius never managed any business for the testator, and although his advo- cacy never cleared him, yet the legacy takes effect. If, however, the ground were put forth conditionally — in this way for instance, "To Titius, if he has looked after my business, I give and leave a farm" — the rule of law is different. (J. 2, 20, 31.) Causa here means the motive assigned by a testator for his liberahty. This is manifestly less necessary for the determina- tion of the object of a legacy than the " demonstration' and consequently its falsity is even less material. A causa is dis- tinguished from a condition by its relating to some past or present act or event which the testator does not regard as doubtful. A condition relates either to a future act or event or to a past act or event of which the testator is doubtful. A testator bequeathed a farm to his wife ; tor, said he, it was on her account I got it. The reason stated was not correct, but the legacy is good, as there is no doubt as to the object of it. (D. 33, 4, 1, 8.) A testator appointed his two sons heirs, and gave one of them a prelegacy of a farm, saying that his brother had obtained an advance in cash. The prelegacy is good even if no advance had been made. (D. 35, 1, 17, 2.) But if the testator had said that the prelegacy would be given if the other brother had had the advance, then the legacy would fail, since the condition failed. (D. 35, 1, 17, 3.) " I wish 1000 solidi to be given to Endo, because he was the first born after his mother obtained her freedom." Endo is entitled to the legacy, although unable to prove that he was bom after his mother's manumission. (D. 40, 4, 60.) " I inform my heir that I owe Demetrius my uncle 3 denaria, and that Seleucus my uncle deposited with me 3 denaria, and I desire these sums to be forthwith returned and paid to them. " The legacy is void if the sums were really due, because a legacy could not be made of a sum due to a creditor ; but if not, the sums will be due as legacies, notwithstanding the error in the recitals {falsa causa). (D. 31, 88, 10.) But if the person charged with a legacy can prove that the testator would not have left the legacy but for his erroneous belief, then he can defeat the legatee, on the ground that his claim is against good conscience {doli exceptio). (D. 35, 1, 72, 6.) 926 LEGACY. Paetumeius Androsthenes appointed Pactiimeia Magna his heir, and substituted her father Paetumeius Magnus for her. The father was killed, and the rumour was that the daughter also was dead. Thereupon the testator made a new will, appointing Novius Kufus his heir, saying that he did so because he could not have the heirs whom he wished. {Quia heredes quas volui habere viihi continere non potui Novius Rufus heres esto.) Paul states that on the petition of Paotumeia, the rumour of whose death was false, the cause was tried, and resulted in her obtaining the inheritance, as the recital showed such to have been the testator's intention. She was, however, liable for the legacies contained in the second will, just as if she had been named heir therein. {D. 28, 5, 92.) Titius appointed as heirs his mother and Sempronius, substituting Cornelius to both. The mother died, Sempronius was deported, and it appeared, therefore, that Cornelius would be sole heir. To him Titius wrote as follows : — " Titius to Cornelius his heir, greeting. I request you, Cornelius, since my mother's share has devolved on you, and also the share of Sempronius, once my curator, now suffering deportation, and you are heir-presumptive of all my property, that you will give Gains Seius one-third of the inheritance." Sempronius was pardoned, and along with Cornelius entered on the inheritance. This trust could not be charged to him by implication, but Cornelius was bound to give Gains Seius one-sixth of the inheritance. The testator's recital was true in regard to one-half, and turned out to be erroneous in regard to the other half ; and under the circumstances of the case it was held that his intention was best carried out by reducing the burden of the trust in proportion to the benefit derived by Cornelius from the will. (D. 36, 1, 75, pr.) " I order to be restored to my wife Sempronia by my heirs 100 aurei I have borrowed from her." Sempronia sued on the alleged loan, but failed to prove it. It was held that she could demand the money as a legacy. (D. 82, 93, 1.) If, however, the testator said she had sworn to return the money, the recital would be sufficient evidence of the loan, and it could be recovered as a debt. (D. 32, 37, 5.) Modus. — This term may be considered here along with demonstratio, determinatio, and causa. When a provision in a will was intended to impose a duty on a legatee or heir, and not to suspend the vesting of the legacy, it was called modus. Security for its performance may be demanded from the legatee by the heir before payment of the legacy. (D. 35, 1, 40, 5 ; D. 34, 3, 26 ; D. 35, 1, 80 ; D. 32, 19.) It has this in common with suspending facts or conditions, that if illegal it was regarded as not written (D. 35, 1, 37), or the testator's wishes might be carried out cy pres. A testator left land to a city, out of the rents of which certain games were to be annually celebrated in his memory. The games prescribed were not permitted by law in that place. Modestinus said it was not right that the land should go to the heir, for whom it was never intended. He therefore said the heirs should meet the heads of the city, and fix on a scheme by which the memory of the testator might be preserved by lawful celebrations. (D. 33, 2, 16.) When a legatee fails to carry out the whole injunctions of deceased, he must resign a proportion of the profits to the heirs (D. 33, 2, 17) ; but if the legatee is prevented by circum- stances out of his power, he can retain the legacy. (D. 30, 92, 1 ; D. 31, 88, 3.) LEGATUM OPTIONIS, 927 At first the lieir was the only person that could require a legatee to perform a modus ; but Gordian enacted that anyone interested in the performance of the duty might call upon the legatee to observe the terms of bequest. (C. 6, 45, 2.) V. In certain legacies the election of the heir or legatee is necessary to vest the legacy. 1. Legacy of choice (^Legatum opiionis). A legacy at a man's option — that is, where the testator had ordered the legatee to choose from among his slaves or other property — involved in itself a condition ; and therefore unless the legatee himself made the choice in his lifetime, he did not transmit the legacy to his heir. But under our constitu- tion this, too, has been remodelled and put on a better footing ; and full leave has been given the legatee's heir to choose, although the legatee has not done so in his lifetime. As greater diligence, too, has been used in handling the matter, this addition has been made in our constitution : — if there are several legatees to whom the option is left, and they differ as to the choice of the object, or if one legatee has several heirs, and they differ among themselves about choosing, and one desires to choose one object, another another, — then, that the legacy may not be lost (the rule brought in by most of those learned in the law, contrary to all good feeling), fortune is to be judge of the choice, and the case is to be finally settled by lot, so that the opinion of him to whom the lot comes is to prevail in the choice. (J. 2, 20, 23.) In the constitution referred to, Justinian observes that the person that has the election obtains the thing chosen, and compensation is to be made to his co-legatees, or in the case of the heirs of a single legatee, to the co-heirs, of the value of their share. In the case of slaves Justinian fixed the following scale of maximum prices. (C. 6, 43, 3, pr.) :— Not exceeding Slaves, male or female, under 10 years of age, 10 solidi. „ „ above „ unskilled labourers, 20 „ „ „ „ „ skilled „ 30 „ „ „ „ „ notaries, 50 „ „ „ „ „ doctors and midwives, 60 „ „ eunuchs under „ 30 „ „ „ above „ unskilled labourers, 50 „ „ „ „ ,, skilled ,, 70 ,, If the choice were left to a third person, and for any reason that person failed or refused to make a choice within a year, the legatee himself was allowed by Justinian an option. He was not, however, to choose the best, but must content himself with a medium specimen of the kind from which he is allowed a choice. (C. 6, 43, 3, 1.) When a choice was allowed of slaves without specifying the number, Antoninus Pius in a rescript states that the legatee might take three. (D. 33, 5, 1.) An election once made cannot be altered (D. 30, 5, pr.), unless some of the things have been concealed from the legatee, in which case he has another choice. (D. 33, 5, 4.) A right of selection implied a right to inspect prior to making the choice ; as, eg., to taste wine. (D. 33, 6, 2, 1.) The time within which the choice must be made, if not named by the testator 928 LEGACY. might be fixed by the Praetor ; but even after the time had elapsed, tlie legatee could make his choice if the heir had not sold the things in question. (D. 33, 5, 6.) 2. Alternative legacy. Such a legacy as this takes effect : — " Let my heir be condemned to repair such a one's house," or "to free such a one from debt." (J. 2, 20, 21.) " I give and bequeath Stichus to Titius if he does not choose Pamphilus." " I bequeath Stichus or Pamphilus to Titius, whichever he pleases." This is a single legacy with a choice to the legatee, unless the choice is expressly given to the heirs of the testator. (D. 33, 5, 9, pr. ) "I bequeath 10 aurei to Sempronius ; or if he do not take them, I give him my slave Stichus. " In this case there are two legacies, the second of which is conditional upon the refusal of the first. (D. 31, 8, 1.) 3. Legacy of a thing in general terms. If a slave or other property is left in general terms, the choice lies with the legatee, unless the testator has said otherwise. (J. 2, 20, 22.) When the choice was with the heir, he must give a slave of whom the legatee could retain the possession {ut eum habere liceat), and therefore one that was not liable as noxa; but the slave need not be healthy. (D. 30, 45, 1.) Also the heir must not give a slave that steals ; he must select a slave in good faith. (D. 30, 110.) VI. When it is uncertain whether the legatee or the testator died first. In cases of apparently simultaneous death of two or more people, as by shipwreck, fire, or in battle, it often was material, in determining the devolution of an inheritance or the fate of a legacy, to ascertain which died first. The same rules apply both to inheritance and legacy. The rule, subject to exceptions presently to be stated, was, that when there was no evidence to show which of two or more persons died first, the law would not presume that one died before the other. (D. 34. 5, 18, pr.) This rule operated, there- fore, in favour of the person in possession, or the person that did not require to invoke tlie aid of the law. A gift (which was valid unless revoked in his lifetime) was made by a husband to his wife. Both husband and wife perished together. It was held that the gift was valid, because the donor did not survive to reclaim the gift. (D. 34, 5, 8.) A mother stipulated with her son-in-law for the return of her daughter's dowry to her if the daughter died before the death or divorce of her husband. The mother and dauiihter perished together. The mother's heir could not recover the dowry, because there was no evidence that the mother survived the daughter ; and according to the law, if she died before the daughter, her heirs had no claim to the dowry. (D. 34, 5, 16, pr.) A husband bequeathed her dowry to his wife, and both perished together. If the wife survived the husband for a moment, her heirs could recover the legacy ; but in the absence of proof of that fact, the heirs of the husband could not be sued for the dowry. (D. 34, 6, 17.) MODALITY. 929 Exceptions. — The exceptions to the above rule are dictated by a desire to prefer certain claimants to others. 1. When a child above the age of puberty perished along with a parent, and there was no evidence to show which sur- vived, it was presumed that the child survived the parent. (D. 34, 5, 22.) When a father and son were killed in battle, the rival claimants for the father's property were the mother as heir to the son, and the agnatic collaterals as heirs to the father. If now the son survived the father, he became his father's heir (without the necessity of any acceptance), and the mother succeeded to both. On the contrary, if the father survived, the property went away from his wife to his agnatic kinsmen. To avoid a result at variance with popular feeling, the son was presumed to survive the father. (D. 34, 5, 9, 1.) That this is the true reason of the rule, and not any abstract idea of the probability of a son being stronger and surviving, is evident from another case. When the father was a freedman, and the patron, therefore, was entitled to succeed him, the presumption was reversed, and it was held that the father survived the son in order that the rights of the patron might be secured. (B. 34, 5, 9, 2.) 2. When a child under the age of puberty perishes along with a parent, the child is presumed to die first. (D. 34, 5, 23..) It was agreed between a father-in-law and a Gon-in-law, that if the daughter died leaving a child a year old, the son-in-law should retain the dowry ; but if the son died first, the husband should retain only a portion of the dowry. The mother and son perished in a shipwreck'. Held that the father shoiild retain only part of the dowry as agreed upon; (D; 23, 4, 26, pr.) 3. A person is burdened with a trust if he dies' leaving no children surviving him. Both he and his only son perished together. It was presumed that the son died first,, and thereby the trust took effect. This is a presumption in favour of a trust. (D. 36, 1, 17, 7.) 4. A female slave was to get her freedom if her first child was a son. She had twins — a boy and a girl. If there was no evidence to show which was born first, it was presumed to be the boy, in order that the mother may get her freedom and the daughter be freeborn. (D. 34, 5, 10, 1.) (b.) Modality of L egacies. Place of Performance. — When a thing is bequeathed, it is to be given to the legatee where it is found at the testator's 3 N 93° LEGACY, death, or wliere it is afterw.ards removed in good faith by the heir. (D. 30, 47, pr.) Hence if a slave runs away before the testator's death, the cost of pursuit falls on the legatee (D. 30, 108, pr.) ; but if after the testator's death, on the heir. (D. 31, 8, pr. ; D. 30, 39, pr.) If the testator expressly adds a place where the legacy is to be given, his injunctions must be observed. (D. 30, 47, pr.) This intention may be gathered from the nature of the legacy, as when a testator bequeaths grain warrants {tesserae frumen- tariae) to his freedmen for their maintenance. These were orders for the delivery of so much grain from the national granaries, 'and could be bought and used only in Rome. It was held that although the greater part of the testator's property was in the provinces, his heir must deliver these warrants in Rome. . (D. 5, 1, 52, 1.) Time of Performance. — If no time is fixed by the testator, and the legacy is unconditional, the legacy may be demanded as soon as the heir enters upon the inheritance (D. 31, 32, pr.) ; but if the heir does not dispute the legacy, he must be allowed a moderate time for payment before an action can be brought against him. In case of dispute the length of delay to be granted was determined by the Pi-setor. (D. 30, 71, 2.) The legatees are not bound to wait for the result of a trial in which the genuineness of the will is unjustly attacked, but they must give security to restore the property in the eveut of the accusa- tion proving well founded. (C. 6, 37, 9.) A testator may, however, give the heir a specified time for performing, which was done by a clausula prorogationis. This clause was, not applied to, specific gifts, but to legacies aires fungibiles, i.e., quae numero pondere mensurave constant} The instalments must be equal (D. 33, 1, 3, pr.), unless the testator has otherwise determined. (P. 33, 1, 3, 2.) Postponed and Conditional Legaqies {Diss, Conditio). The testator may name ,a day on which the legatee is to be paid. As has been already explained (p. 587), -a distinction was made in the Roman law- between the time -when a right vests and the time when its performance may be required. The ■ Quas pecunias Ugavi, quibus dies adposittisnon est,eas heres meus. annua bima triima die daio. (D. 30, 30, pr.) CONDITIONS. 931 former was expressed by the phrase dies cedit, the latter by the phrase dies venit. (1.) After the vesting {dies cedit), payment may be made of the legacy, although it cannot be demanded until the day named {dies venit). But if the right has not vested {dies non cedit), payment, if made, can be recovered as the discharge of what is no debt. (D. 12, 6, 16, pr.) This distinction is equally true, both for contract and for legacy. (D. 35, 1, 49 ; D. 35, 1, 1,1.) Titius was charged to give certain property to his nephews, subject to a condition. These nephews were under the potesias of their father. Titius could not get a valid discharge until the condition was fulfilled ; for it might happen that before the condition was fulfilled, the nephews might be sui juris, and so acquire for their own benefit, and not for their father. Again, some of them might die, and the shares of the survivors be thereby augmented. Titius was therefore not allowed, by anticipat- ing payment, to vary the rights of the parties. (D. 30, 114, 11.) A wife made her husband her heir,- and Appia his substitute. She charged him to give the whole to Appia on his death ; or if Appia died before- him, to Valerian, her nephew. The husband might give Appia the property in his lifetime, but if he survived Appia, he ]nust answer for the whole of it to Valerian. (D. 32, 41, 12. ) (2.) If ■ the legatee dies after the vesting {dies cedit), but before the day of demand, his heir is entitled to the legacy; but if the legatee dies before the vesting of the legacy, his heir takes nothing. This point makes a cardinal difference between contract and legacy. After a contract had been made, although the creditor died before the day of vesting {dies non cedit), his rights -passed -to his heir. (D. 36,' 2, 5, pr.,; D. 36, 2, 3.) The reason for this difference is given ■ as follows ; — A person in making a -contract is understood to act with a view to the benefit of his heir as well as of himself. But a testator dis- tributes his property with regard to the favour in which the legatees stand with him. It is for them his bounty is intended. Their heirs are necessarily unknown to. him, for if the legatee dies leaving a-will, one set of pei-sons may succeed ; and if he dies intestate, quite a different set. There can therefore be no general presumption ■ that a testator intends his bounty for those unknown persons, the heirs of his' legatee ; and it is more reasonable to suppose that if the legatee dies before the vesting of the legacy, the testator would desire his portion to go to the co-legatees, also objects of his bounty, rather than to the heirs of the legatee. After a legacy vests, it is simply property, and as such descends to the heirs of the legatee. 932 LEGACY. (1.) When the legacy is unconditional {legatum purum), and no day is fixed for performance, the right of the legatee vests (dies cedit) at the moment of testator's death. (C. 6, 51, 1, 1.) Performance, however, cannot be demanded {dies non venit) until the heir enters on the inheritance. If the legacy is conditional, but the condition is illegal, the right of the legatee also vests- at the time of testator's death. (D. 36, 2, 5, 3 ; I>, 36, 2, 5, 4.) Exception'. — When a tisnfruct is bequeathed, ft does not vest {dies non cedit) until the heir enters. (D. 3&, 2, 2. ) The reaaon is, that as a usufruct expires with the life of the legatee; notMng is- to be gained by throwing baelt the day of vesting to the time of testator's death. (D. 36, 2, 3.) The sole purpose of making the day of vesting retroactive, since nothing can' be claimed until the heir enters, is, that in the event of the legatee dying between the death of testator and the entry of the heir, he may transmit his- own rights to his heir. Perhaps- a better reason is that a usufruct can hardly be said to- vest until the right to- actual enjoyment accrues. Hence it appears that until the day of demand {dies venit) the right of the usufructuary does not vest {dies non eedit), (D. T, 3,-1, 2.)' (2.) When a legacy is unconditional, and a day (dies) is fixed by testator, the legacy vests {dies cedit) at the testator's death, but the demand must be put off until the day named {dies venit). The day may be remote, as 100 mouths ; but if it is certain, the legacy vests at once on- the death of the testator. (D. 36, 2, 21, pr.; D. 36,2,5,,!.) (3.) When the legacy is conditional it does not vest, and so is not transmitted to the heirs of the legatee until the condition is fulfilled (D. 36, 2, 5, 2)., unless, of coiirse, the failure of the condition is caused by the heir.. When that happens, perform- ance may generally be demanded; that is, on the performance of the condiliou at once dies cedit and dies venit. (D, 35, 1, 41.) Conditions, I. What IS a condition ? {conditio). A condition has two nvA.xks—^futuriti/ and uncerlainty. It suspends the operation of an investitive faet until a future and uncertain event has or has not happened, 1. Condition is distinguished, from dies. Both relate to a future event ; but dies relates to a certain, condition to an uncertain, event. The uncertainty of an event may, however, mean one of two things ; either that the event is certain, as the death of Titius, but the time uncertain, or the event itself is uncertain, as that Titius, aged two years, will reach puberty. In the law of contract there is no condition, unless the event CONDITIONS. 933 itself is uncertain. Thus a promise to give on his death by a debtor, is not a conditional promise; the dies is future, but it will certainly happen, although it is uncertain when. In this case, then, dies cedit when the contract is made, dies non venit until the death of the promiser. (D. 12, 6, 17.) In the law of wills and legacies an exception occurs. If the event is the death of the heir, it is held not to be an ineertus dies, but a conditio. In this event only is the saying true, dies ineertus conditionem in testamenlo facit. (D. 35, 1, 75, pr.) " Let my heir, when Titius is dying, give him 100 aurei." This is unconditional, as in the case of contract. (D. 35, 1, 79, pr. ; D. 36, 2, 4, 1.) " Let my heir, when dying, give Titius 100 aurei. This is a conditional legacy, in opposition to the case of csntract. (D. 35, ], 1, 2 ; D, 36, 2, 4, pr.; D. 35, 1, 79, 1.) The purpose of this illogical distinction is to prevent the possibility of an heir of a legatee taking when the legacy has never vested in the legatee. This appears by a consideration of the tw« cases. When the death of the legatee is the event upon which the legacy Is payable, it is considered to vest in the legatee -n-ith his last breath. By this momentary vesting his rights pass to his heirs in the ordinary way of devolution. His heirjB take from him, not from the testator. When the death of the heir was the event upon which the legacy depended, the legatee might die before the heir ; and thus, when the event occurred, no legatee be in existence to whom payment could be made. In such a case by no possibility could the legatee be entitled ; and thus his heirs would take directly from the testator. It was considered, however, that the testator never naeant to extend his liberality to the heirs of the legatee. (D. 35, 1, 79, 1,) But although for this purpose the death of the heir was held to be a condition, still, contrary to the rule governing conditions if the heir chose to pay the legacy in his lifetime, repayment of it eould not be demanded although the legatee died before him. (C. «, i2, 12 ; D. 32, 41, 12.) Titia appointed her son, who had children, as heir on trust to surrender the whole of her property to his sons or their children, on demand {quwm ipsi petisscnt). The demand is not a condition of the vesting, but simply fixes the time [dies] when the trust must be performed. (D. 35, 1, 85.) Seius Saturninus left Valerius Maximus his heir on trust to give the inheritance to his son Seius Oceanus on his attaining his sixteenth year. Before reaching that age Oceanus died. Mallius Seneca, uncle of Oceanus, claimed the inheritance of Satur- ninus as next of kin to Oceanus. Maximus resisted the claim on the ground that Oceanus having died before the vesting of the legacy, it did not pass to his heirs, and that he was therefore entitled to hold the property discharged from the trust. It was held that the clause, " on attaining his sixteenth year," was not a condition, but merely specified the time for performance. This judgment rested on the view that in delaying the trust for his son until he reached sixteen, Saturninus consulted his interest, and not the benefit of Maximus, and that he had no intention to make the rights of hia son depend on the hazard of bis sixteenth year. Mallius, therefore, got the property. (D. 36, 1, 46.) A testator bequeathed 10 aurei to his daughter jEIia Severina, which she was to receive on her attaining her legal majority. She died before reaching majority, but 934 LEGACY, after the testator. Her heirs are entitled to the legacy after the lapse of the time that would have brought her, if she had lived, to her majority ; i.e., when she bad completed her twenty-five years. (C. 6, 53, 5.) A testator left 100 aurei to Titius, adding, "Let my heir give him the money bequeathed if my mother dies." The use of the present tense would seem to show that the legacy was unconditional, and that the death of the mother simply fixed the time for performance. Ofilius, taking that view, said ' the heirs of the legatee were entitled although Titius died befors the mother,' but after the testator. Labeo and Javolenus, however, said it was'^a condition; it was so in' terms,- and there was no sufficient reason to believe that the testator meant anything else. (D. 35, 1, 40, 2.) " When Titius is thirty years old, let Stiohus be free, and let my heir give him a farm." Titius died before thirty. The legacy of the farm fails, but the gift of liberty was construed as unconditional; the arrival' of Titius' at thirty years merely fixing a time during which, the gift of freedom. was to be. postponed. (IK '■40, A, 16 ; D. 40, 7, 19.) A testator desired his heirs to manumit Stichus, and charged Seius, if Stichus con- tinued to live with him, to ■supply Stichus with food and raiment ; and also'when he (Seius) reached his -twenty-fifth year, to buy a commission [militia) for him. Seius died before reaching twenty-fivej It was held that the heirs of Seius>must buy the commission afterthe time that would allow. Seius to reach twenty.-five.- ■ (Di 34, 1, 18, 12.) 2. Conditio is distinguished from Btodus: ■ Modus is -when a duty is- imposed on a legatee by a testator to do something after the legacy vests — as to build a tomb, or to execute a public work, or to give up part of the legacy to another. (D. 35, -1, 17, 4.) - A condition: is. an essential ip-re- liminary to the vesting of a legacy. A testator gave liberty to his slaves Saccus, Eutychia, and Hirene, on condition- that they should every alternate month burn a lamp in his tomb, and make a sacrifice for the dead. This is not a condition, but a duty imposed on.the slaves on attaining, their freedom, ' which the judge can compel them to perform. (D. 40, 4, 44.) " Let Pamphilus be f 1*06, provided that (('(««<) he render his accounts to my children.'' Julian said that the meaning' of the testator was clear. He did not intend that the accounts should be rendered satisfactorily before Pamphilus got 'his liberty, but that he should be manumitted, and compelled to give (in account to his sons-. (D. 40, 4, 17, 2.) "Let my hefr give to Maevius whatever sumt he receives from Titius." By this legacy the right of Maevius is not dependent on the actual recovery of the sum by Titius ; the testator meant to impose a duty on the heir, not to make the legacy con- ditional ; and therefore Maevius can, upon the entry of the heir, compel him to trans- fer his right of action against Titius. (D. 31,' 50, -2.) 3. Conditio Extrinsecus. When a legacy depends on' some event determined by the la-w — as the aditio liereditatis (D. 3B, 2, 7, pr.) — or incidentally prescribed by the testator, that event, does not make a con- dition, but simply delays the demand of the legacy. (D. 35, 1, 99.) If before such event happens the legatee dies, his heirs are entitled to the legacy if the event subsequently happens (D. 36, 2, 6, 1.) CONDITIONS. 955 " Lot Titius be heir. If Titius enters on my inheritance, let him give 10 aurei to Maevius." It Maevius dies before the entry of the heir, and the legacy ii interpreted as conditional, the heirs of Maevius would not be entitled. But although the testator in express terms made the legacy depend on the entry of Titius, it was not considered as a condition, because every legacy had to await the entry of the heir, .and therefore the heirs of Maevius- are .entitled. (D. 36, 2, 22, 1.) Titius bequeaths to Gains a farm, part of his wife's dowry, and a sum of money in lieu of it to his wife: Before the wife' made her election, Gaius died. Were his heirs entitled ? It the wife elected to take'the farm, neither Gaius nor his heirs could get it ; and so, in" point of fact,, the acceptance of the peciftiiar-y legacy was a condition without which Gaius was not entitled to- the farm. If it were a condition, the heirs of Gaius could not claim the farm, because Gaius died before acceptance, and there- fore before the condition was fulnlled; It was held, however, that the testator did not mean the legacy to stand or fall by that event, and that his intentions are most effectually carried out by construing, the legacy as simply delayed until the wife makes her election. (D. 36, 2, 6, I.') ' II. Fulfilment or Failui-e' of Conditions. A condition may be an event independent ofthe will of the legatee, or it may be an act or forbearance required of him. When the condition is an event independent ol the will of the legatee, cases: of difficulty seldom arise; but if the condition is an act or forbearance of the legatee, questions may arise as to the sxifficiency of'performance. (a.), Firsfccase : Performance of Acts by Legatee. 1. By whom a conditional act may be performed. If the condition were that" the legatee should render a per- sonal service, he alone could satisfy the condition ; but when it was the payment of money, anyone could pay it on behalf of the legatee, and so fulfil the- condition. (D. 40, 7, 39, 5.) When the condition was that something should be done by two or more legatees, could one do the whole; and if he did, did he acquire all the rights? It depends on whether the per- formance can be divided or not. The same thing is bequeathed to two persons if they give the heir 100 aurei. One of them by giving 50 gets the half ; and if the other does not give 50, can get the other half by paj'ing an additional 50. (D. 35, 1, 54, 1.) If Stichus and Pamphilus give 10 aurei they shall' be free... Either by paying 5 aurei gets his freedom, and if the whole is paid both are free. (D. 40, 4, 11, 1.) Freedom is bequeathed to two slaves if they render proper accounts (si rationes reddiderint). If their accounts are separate, each gets his freedom by proving his accounts and paying the balance he owes ; but if the accounts are mixed, neither gets his liberty until the accounts of both are -made up, and the balance due by both paid. (D. 40, 4, 13, 2; D. 40, 7, 13, 2-.) Freedom is given to two slaves on ' condition that they build a house or put up a statue. If one does the whole, he gets his freedom and the other remains a slave ; if both join in the work, both are free. (D. 40, 4, 13, pr. ; D. 35, 1, 112, pr.) 2. To whom the act may be performed. 93^ LEGACY. The rule in this case was stringent. If anything was required to be done or given to a person specified by the testator, it could not be done or given to any other person, not even to the heir of the person specified. To this rule there were two limitations : (1) if th« legatee could prove that the testator meant to give him greater latitude (D. 40, 7, 20, 4):; and (2) in bequests of fr-eedom. {D, 35, 1, 51, 1.) If money was to be given to the heir, and the heir died, the slave could obtain his freedom by giving the money to the heir's heir ; or if there were no such heir, then without giving a-Dything at all. ((D. 35, 1, ■94, 1.) If the money was to be given to a person other than the heir, and that person died, the slave got liis freedom with- out paying anything, (D. 35, 1, 94, pr.) If the legatee must give money to two persons, he leamnot •divide the pa,yment. A farm is left to a legatee on,.conditioii.«f his paying 16 anrei to two heirs. By paying 5 to one heir, the legatee takes nothing ; if one of the heirs refuses to accept 5, the legatee can pay the 'full 10 to the other, and get the farm. (D.. 33, 1, 23.) "Likewise if Titius pays Syraph.orus fuid Januarius 100 aurei, I bequeath a farm to him." Symphorus dies. In strictness the legacy would he void because of the impossibility of satisfying the condition ; but this was considered to be inconsistent with the testator'^ wishes, and it was held that by paying half {i.e., 50) to Januarius, Titius could recover half the farm. (D., 35, 1, 112, 1.) 3. In certain cases, where it ris impossible io comply exactly with the terms of the condition, a partial , compliance or non- oomplianoe is accepted as sufficient. 1°. When the legatee is prevented doing what he is asked by the person to whom he is asked to do it, the condition is regarded as fulfilled. {D. 35, 1, 81, 1.) The same rule obtains in stipulations, when the stipulator prevents the promiser fulfilling a condition. (D. 35., 1, 24,) A slave is bequeathed his freedom if he goes; to Capua. The heir prohibited the slave from going. The slave was at once thereby made free. (D. 40, 7, 3, 3.) A. is appointed heir it he gives 10 aurei to Ifitius. Titius refuses the money. A. is heir. (D. 28, 7, 3.) Maevia appointed her grandson Publius STaevjus heir. He was above the age of puberty. By her will she bequeathed an annuity,, of 1 aurei to Lucius Titus if he undertook the management of the property of iher grandson, the heir. After a time Maevius refused to allow Titius to manage his "property. If he wss not compelled to this course by the misconduct of Titius, he must continue to pay Titius his annuity. {D. 33, 1, 13, pr.) Slaves got their freedom and a bequest of aliment so long as they dwelt with the heir. For a time they did so, but were driven away by his cruelty. They were still entitled to aliment. (D. 34, 1, 13, 2.) CONDITIONS. 937 An heir was charged to manumit Stichus, Dama, and Pamphilias aftpr payment of testator's debts. The heir purposely put off paying the debts in order to retain them in slavery. It was held that the slaves were entitled to their freedom withooat waiting for the payment of the debts. (C 40, 5, 41, 1.) This is an instance of an heir refus-. ing to fulfil a condition, which came to the same thing as if he prevented the legatee performing a condition. 2°. When the legatee is prevented fulfihiHg a -condition by a person to whom the act is not to be performed, tlie condition is also regarded as fulfilled. ■" Let Titius be heir if he erects statues in a towji. " A site was refused. Tititis was entitled to the inheritance. (D. 85, 1, 14.) "Let my son be heir if he adopts Titius ; if he does not adopt him, let him be dis- inherited." Titius refused to be adopted. The son is heii;. (D. 20, 8, 11.) A testator bequeathed freedom to Stichus and Pamphila, and if they married, s, legacy of 100 aurei. If Stichus reused to paarry Eamphila, ..she could .claim the half of the legacy. (D. 35^ 1, 31.) 3°. When the legatee is prevented fronfi fulfilling a, condition by something else than the will of ihe heir or other person, the rule is not so simply. (1.) If the fulfilment of the -condition laj -en'tirely in the power of the legatee {conditio potestiva), and if the perfo,rmane legatee gives tlie heir 50 aurei, is nugatory. (E. 35, 5, i65.) "If Titius gives security to my heir to give Maevius 100 aurei, let my heir give Titiiis I'OO mirei. " This is a valid legacy, and is .equivalent to a, legacy of 100 aurei to Titius on trust for Maevius. (D. 3Q, 8i, pr.,) A legacy of .a farm supposed to be.yvorth lOO.o-m'eiwas made to Titius, on con- dition of his giving t}ie heir 100 cmxei. The legacy is valid, because the farm may have a special yalue to pTitius. i(D. 31, 54..) 2. The condition "si, volet." The condition '' if the heir pleases " -mates a legacy nugatory, just as a -contract cannot 'be made if the promiser is bound only according to his own good pleasure. Rut if the language does not imply that .the choice is perfectly arbitrary, as if it be " if you think fit " (si fueris arhit,ratvs, m putaveris, si aestimaveris, si utile iibi fuerit liisiim), the .condition is good, at least in bequests of freedom, and is interpreted to mean tlie .discretion of a fair and 'honest man (" or again, " The day before my heir or legatee shall die.'' But in a like way we have corrected this too, and have given effect to legacies of this kind after the analogy of trusts ; that even in this case legacies might not be found to be in a worse position than trusts. (J. 2, 20, 35.) 4. Impossible and illegal conditions. When the condition cannot be fulfilled, or is forbidden by the law to be fulfilled,, it is regarded as- a superfluity, leaving the legacy valid and unconditional. (D. 35, 1, 3 ; D. 28, 5, 50, 1.) The legacy vests (dies eedit) at the death of the testator. (D. 36, 2, 5, 3; D, 36,2, 5, 4,> (c.) Eestrietiou on Legacy. I. In respect of the object of a legacy. In describing the rights and duties a)ising from bequest, we have shown by particular examples the range of things that might be the objects of a legacy. Not only every right of 942 LEGACY. property, but rights arising from contract, and even a hereditas, might be bequeathed. The hmits, then, to legacy are simply the limits to property. It has also been mentioned that a testator could by way of trust bequeath what did not belong to him to a legatee. Not only what belongs to the testator or his heir, but what belongs to another, can be left as a legacy. In that case the heir is forced to buy it up and supply it; or if he cannot buy it up, to give its value. If, however, the thing is such that it cannot be bought or sold, not even its value is due : — as if a man leaves the Campus Martius, or a basilica or temples, or things set apart for the pubUc use : for the legacy is of no force. In saying that what is another's can be left as a legacy, we must be understood to mean if the deceased knew that it was another's, but not if he did not know ; for perhaps if he had known it was another's he would not have left it ; and so the late Emperor Pius decided in a rescript. The truer view also is, that the man that brings the action (the legatee, that is) ought to prove that the deceased knew the thing was another's, not that the heir ought, to prove he did not know it was another's ; because the necessity of proving his case rests always on him that brings the action. (J. 2, 20, 4.) If a man leaves what is .his own in the belief that it is another's, the legacy takes effect ; for. what rests on truth is more effectual than what rests on opinion. If, further, he thought it was the legatee's, it is agreed that the legacy takes effect, because the wishes- of the deceased canbe fulfilled. (J. 2, 20, II.) If a man leaves as a legacy what belongs to the legatee, the legacy is void ; because what is his private property cannot become any more his ; and although he has alienated it, neither -it nor its < value is due. (J. 2, 20, 10.) 11. Who may not be legatees. A legacy can bd left to those only with whom there^ is ' iestamenti /actio. (J. 2, 20, 24.) Those that cannot be heirs cannot be legatees ; but can an heir be also legatee under the same will*? A sole heir cannot be legatee, because he would at the same' time be both creditor and debtor : as legatee he would be creditor, and as heir debtor. But if there are several heirs, one of them may be charged with a legacy in favour of the others. (D. 30, 116, 1.) This gives rise to a curious result when the heir, is made; co-legatee along with other persons not heirs. A fann is bequeathed, to Titius (.pne of two cb-heirs), and to Seius, who is not heir. Titius is entitled to half the farm, Seius to the other half. But since there are two heirs jointly liable, Titius can claim one-half of his half from his co-heir. Can he claim the other half of the half from himself ? No, for then he would be at once creditor and debtor. He can claim, therefore, only one half of his share from the co-heir, and thus Seius gets in addition to, his own half, a half of, the share of Titius. (D. 30, 34, U.) RESTRICTIONS. 943 A farm is beqiieatlied from Titius and Seius, co-heirs, to Titius, A. and B., as co- legatees. If Titius were not heir, he, along with A. and B., would be entitled to a third of the farm. But this third, as it happens, is due in equal parts from himself and Seius. He cannot get the part due from himself ; therefore he gets only the half of his third, i.e., one-sixth of the whole. The other half is divided equally between A. and B., who thus each get one-third plus one-twelfth, or five-twelfths, Titius getting two-twelfths. (D. 30, 116, 1.) Titius and Gaius are co-heirs, Titius having one ounce and Gaiue eleven ounces. A farm is given them as a legacy. In what proportion will they enjoy the legacy ; Titius as lieir cannot owe to himself any part of the farm, but Gaius can owe him eleven-twelfths of the farm. Gains cannot owe himself any portion of the farm, but Titius, as heir for one-twelfth, may owe him one-twelfth. Thus Titius gets eleven- twelfths of the farm, and Gaius one-twelfth, and they talce the legacy in shai-es inversely as their shares of the inheritance. (D. 30,- 34, 12.) A slave could not be a legatee, except for aliment. An annuity for aliment was left to. a person who was condemned to the mines, but afterwards pardoned by the Emperor. Held that he was entitled to payment for the time he was a convict, as well as for future years. (D. 34, 1, 11.) A slave is to be freed after a certain time, and meanwhile a legacy of aliment is given. Held that before he attains freedom, he may, according to a rescript of Severus Antoninus (D. 33, 1, 16), claim the allowance. (D. 30, 113, 1.) Even if the slave dies before the time fixed for his .manumission, what has been given him as an allowance cannot be demanded back by ^njheir.from the co-heir who made the allow- ance. (D. 10, 2, 39, 2.) Can tlie slave of a sole heir be legatee? Whether a legacy we leave to a person in the potestas of the man we appoint our heir is a good one, is questioned. Servius approves of the view that it is good, but thinks the legacy disappears if he is still iii potestate at the time when the legacies usually vest. Whether, therefore, the legacy is unconditional, and in the lifetime of the testator he ceases to be in the potestas of the heir, or whether it is conditional, and' that happens before the con- dition is fulfilled, in either case he holds the legacy is due. Sabinus and Cassius, on the other hand, think a legacy can rightly be left conditionally, but not unconditionally. Although, they say, he might in the testator's life- time cease to be in the potestas, of the heir, yet on this ground the legacy ought to be understood to be void, that it would have no force if the testator died at once after making the will ; and it wjould be absurd to say that it took effect because he dragged out his life longer. The authorities of the opposing school, again, think that not even conditionally can the legacy be a good one ; because we can owe nothing to those .we have in our potestas any more conditionally than unconditionally. (G. 2, 344.) Whether a legacy we leave to a slave of our heir is a good one is questioned. It is agreed that an unconditional legacy is void, and that it goes for nothing that in the testator's lifetime the legatee went out of the potestas of the heir ; because since the legacy would have been void if the testator -had died at once after making his will, it ought not to take effect merely because the testator lived longer. A conditional legacy, however, is a good one ; so that we must -ask carefully whether at the time the legacy fell diie the slave was notin the pcHestasoi the heir. (J. 2, ao,-3?v) 944 LEGACY. On the contrary, it is agreed that through a person in your potestas, if he is appointed heir, a legacy can rightly be left to you. If, however, you become heir through him, the legacy vanishes ; because you cannot owe yourself a legacy. But if the son is emancipated or the slave manumitted or transferred to another, and himself becomes heir or makes another heir, then the legacy is dufe. (G. 2,. 245.) On the. contrary, if a slave is appointed heir, there is no doubt that even an unconditional legacy to his master is a good one. For even if the testator died at once after making the will, yet the legacy iS' not understood to vest ia him that is heir; because the inheritance is distinct from the legacy, and through the slave another can be made heir, if before be enters on it by his master's orders he is transferred to the jiotesias of another, or by being manumitted is himself made heir. In these cases the legacy is good. But if he remains in the same case, and enters by order of the legatee, the legacy disappears. (J. 2, 20j 33.) III. UiilawfLtl objects,, or purposes, or conditions. 1. A thiijg cannot be acquired twice by a lucrativa causa: If what belongs to another is left as a legacy, arid in the testator's lifetime; the legatee becomes its owner, then if the ground of its OAvnership is purchase, he can under the will obtain the price by an action ; but if the ground of his ownership is gainful {lucrativa) — if it is a gift for instance, or any other like ground — he cannot bring an action. The rule handed down- is this, that twa grounds of ownership both gainful cannot meet in the same man- with regard to the same thing. On this principle, if under two wills the same thing is due to the same man, it malces a difference whether he obtained the thing or its value under one will. If he obtained the thing he cannot bring an action, because he has the thing on a ground that is gainful ; but if he obtained its value, he can bring an action. (J. 2, 20, 6.) To acquire a thing lucrativa causa is to obtain it without a valuable consideration.- If a man has another man's farm left hirli,-and buys the ownership of it without the usufruct, and the usufruct comes to him, and thereafter he brings- an action under the will, Julian says he can rightly bring the action and demand the farm, because in bis demand the usufruct holds the place of a servitude. But it falls within the duty of- the judge to order the value, less the usufruct, to be made good to him.. (J. 2,-20, 9.). In this case tie assumption is that the usufruct is- obtained without valuable con- sideration. In strict law, this was immaterial in an action/ brought for ownership, the usufruct being viewed as- a. servitude. But although technically a servitude, the- usufruct was substantially a fragment of the ownership, and therefore- the legatee was allowed to recover only the value of the reversion^, i.e., deducting the usufruct or life- interest 2. Legacy left by way of penalty. To leave a legacy, or to revoke it, or to transfer it by way ot a penalty, was useless. A legacy is left by way of a penalty when it is left in- order to coerce the heir, and to make him do or not do something.- An- instance is if a man writes thus ; " II my heir bestows his daughter in marriage on Titius ; " or, on the contrary, " If he does not bestow ber, let him give RESTRAINTS ON ALIENATION. 945 lo aurci to Seius ;" or if he writes thus, " If my heir alienates the slave Stichus ; " or, on the contrary, " If he does not alienate him, let him give Titius lo atirei" So much was this rule observed that very many imperial constitutions point out that not even the Emperor himself will accept a legacy left him by way of penalty. Even under a soldier's will such legacies did not take effect, although in other cases the wishes of soldiers in drawing up their wills are closely observed. Nay, even a grant of freedom, it was held, could not be made by way of a penalty. More than that, not even an heir could be added by way of a penalty, as Sabinus thought ; as if one were to speak thus, " Let Titius be heir. If Titius bestows his daughter on Seius in marriage, let Seius also be heir ; " for it made no diiiference in what way Titius was coerced, whether by giving a legacy or by adding an heir. But of such niceties as these we do not approve. We have therefore settled generally that what is left or revoked or transferred to others, although by way of a penalty, is to differ in no point from all other legacies as regards the giving or revoking or transfer, except, of course, things impossible or forbidden by the statutes, or otherwise disgraceful ; for dispositions of this sort by testators the views of my times do not sufl'er to take effect. (J. 2, 20, 36.) 3. Restraint on the liberty of the legatee. A legacy was made to a person on condition that he should always dwell in the same city, near the tomb of the deceased. The legacy is valid, but the condition is void. (D. 35, 1, 71, 2.) But such a restriction maybe imposed on freedmen who get a legacy of aliment ; so that if they neglect the testator's injunctions, their aliment may be stopped. (D. 34, 1, 18, 5.) 4. Restraint on alienation of property. In terms of a rescript of Severus and Antoninus, a general or absolute prohibition of alienation of property left by legacy Avas void ; but if the restriction was made in the interest of children, freedmen, heirs, or any specified person, it was upheld — without prejudice, however, to the creditors of the testator. (D. 30, 114, 14.) Julius Agrippa in his will enjoined his heir not to mortgage nor in any manner alienate his burial-ground and suburban residence. His daughter was heir, and died, leaving a daughter, her heir, who in turn died, appointing certain persons not in the family her heirs. All this time the property in question had never changed hands. Julia Domna was niece to Julius Agrippa. Could she claim under the will of Jiilius Agrippa against the heirs named in his granddaugliter's will, on the ground that the condition against alienation had been broken? JS'o, because the prohibition in the will was absolute and unqualified, not limited by any object— as, to keep the property in the family. (D. 32, 38, 4.) A mother appointed her sons heirs, and enjoined them " on no account to alienate the lands they would obtain from her, but to preserve them to their own family, and to give reciprocal sureties to that effect."^ Held that this restriction was void on account of its being absolute and unqualified. (D. 32, 38, 7.) ^ Praedia quae, ad cos ex honis mcis perventura sunt, nulla ex causa aialienent, sed conservent siiccessiojd buac, deque ea re invicem sihi caverent. 946 LEGACY. A father appointed his son Titius heir. Titius had three sons. The father bequeathed a farm to Titius on trust not to alienate it, but to keep it in the family. Titius died appointing as heirs his two sons and a stranger to the family. Held that the third son could under the will of his grandfather demand » third of the farm. (D. 30, 114,1.5.) A father bequeathed a farm to his son, forbidding him, during his life, to sell, give away, or pledge the land ; adding, that if he acted against his will the farm should go to the Exchequer ; for the prohibition was imposed in order that the farm should never go out of the family. On account of the limit, during his life, it was held that the son couldLhequeath the property even to persons not in his family. (D. 32, 38, 3.) A testator bequeathed land with a shop to fifteen of his freedmen by name, and added, " I wish them to have and hold on the condition and terms that no one of them shall sell, give away, or in any other manner dispose of his share. If anything is done against this injunction, then I wish the portions so dealt with to belong to the town of Tusculum." Some of the freedmen sold their shares to two of the joint-tenants, and these two dying, left Gaius Seius (who was not one of the freedmen) their heir. This was not a forfeiture to the town of Tusculum, because it is consistent with the will that a freedman might sell to his fellow-freedman (although not to a stranger) ; and a freedman was not forbidden to leave what he had bought, but only what he had acquired from the will of the deceased patron. (D. 32, 38, 5.) A testator appointed heirs his son and his son's children, who were emancipated, and said, " My will is that my houses be neither sold nor mortgaged by my heirs, but that they remain intact for ever to them and their children and grandchildren. If any of them desires to sell or mortgage his share, it shall be lawful for him to sell or mort- gage to his co-heir. Whatever any of them does against this will shall be null and void." The son borrowed money from Flavia Dionysia, and the houses being in the hands of tenants, delegated to her the rents due to him. Was this a violation of the trust ? No ; a conveyance of the rents was not a sale or mortgage within the meaning of the trust. The creditor Flavia acquired no right in rem, but only a right in per- sonam against the tenants ; and what the testator forbade was an alienation of the son's interest, which was a right in rem. (D. 31, 88, 15.) When property is settled in the manner shown in these examples, the trust is kept alive so long as there is any person in the family to take under it ; but the last member of the family can dispose of it freely. (D. 31, 78, 3.) This amounted to a very strict entail, as in the event of any attempt being made to defeat the trust, the person next entitled could recover the property from a purchaser or anyone in whose possession it was. (D. 31, 69, 3.) Emancipated children claimed under trusts for a "family;" and failing direct descendants, the agnates were entitled (D. 31, 69, 4), and even the freedmen. (D. 31, 77, 11.) According to Justinian, the next of kin could claim after the children, then even a son-in-law or daughtei--in-law, if the marriage was dissolved by death, and after them the freed- men. But a testator might bequeath the property in a narrower tine if he pleased. (C. 6, 38, 5.) "Dearest wife, I beg you to bequeath nothing to your brothers. There are your sisters' sons, to whom you may leave your property. You know that one of your RESTRAINTS ON MARRIAGE. 947 brothers robbed and murdered our son, and the other also has done me harm." The wife died intestate, leaving one of these brothers her heir. Held that a son of one of the sisters could exclude him under the trust contained in her husband's will, {D. 31, 8S, 16.) 5. Capiatortae Insiitutiones or Scripiurae. To appoint a person your heir in order tbat he might appoint you his heir, is illegal. (D. 30, 64 ; D. 28, 5, 71, 1.) This pro- hibition was introduced by a Senatus Consultum, the name of "wiiich has been lost; and the object was to prevent rich men being entrapped into making needy adventurers heirs by the plausible device of making reciprocal bequests of all their property to each other. Hence if the bequest or appoint- ment was the result of mutual affection, and there was no fraud, the Senatus Consultum did not apply. (D. 28, 5, 71, pr.) " Let Titius be my heir if he shall have shown and proved that Maevius was appointed heir by him in his will." This is void, although a third person, Maevius and not the testator, is the person to be named. (D. 28, 5, 72, 1.) " Por whatever part Titius has appointed him heir, for the same proportion let Maevius be nvy heir." This is valid, because it refers to "• past, not to a future appointment, and therefore cannot have any fraudulent effect. (D. 28, 5, 72, 1.) (i. Conditions as to taking oaths. When a bequest is made, subject to the condition of taking an oath, to do or not to do something, the Pr^tor's edict releases the legatee from so much of the inj unction as requires him to take an oath. (D. 28, 7, 8, 6.) The reason, says Ulpian, is, that while many are ready enough to take oaths to the discredit of religion, others are fearful of the divine displeasure even to the point of superstition. In respect of one class, oaths are useless ; in respect of the other, they are unfair. {D. 28, 7, 8, pr.) An exception was made in favour of bequests of freedom, as it was considered that the most scrupulous slave could not hesitate to take an oath for his freedom. (D. 40, 4, 12, pr.) 7. Conditions in restraint of marriage, in addition to the usual objections, were specially obnoxious as inconsistent with the lea; Julia, which imposed disadvantages on the unmarried state. When a legacy or appointment of an heir was hampered by a general restriction that the legatee or heir should not marry, the appointment or bequest was valid, and the restric- tion null and void. But a narrower restriction might be imposed. (D. 36, 1, 65, 1.) "I bequeath a farm to Maevia on her death, if she shall not have married." Although she marries, she can at once demand the legacy. (U. 35, 1, 72, 5.) An annuity was left to a widow on condition that she did not marry while her children were alive. The condition is void ; but if it were restricted to the time when the children were under the age of puberty, it would be effective, and her marriage before that time would forfeit the legacy. (D. 35, 1, 62, 2.) 94^ LEGACY. A legacy to Maevia " if she does not marry Lucius Titius '' is valid. (D. 35, 1, 64, pr.) A condition, " if she does not marry Titius, or Seius, or Lucius," is also binding. (D. 35, 1, 63, pr.) A condition, "if she does not marry any one at Aricia," is void, if it was unlikely that the legatee would gtt a husband at any other place ; and therefore marriage w.ith a man at Aricia did not forfeit the legacy. {D. 35, 1, 64, 1. ) A legacy was left by a husband to his wife on condition that she did not marry again ; and that if she did, she should hold the legacy iu trust for another. Gains (D. 32, 14) says the condition is valid, and the widow, on marrying, must give up the legacy. Julian, on the contrary, says that the wife is entitled to the legacy, free from the trust. (D. 35, 1, 22.) A testator bequeathed to Titia 200 aurd if she did not marry, and 100 if she did. She married. Was she entitled to 100 aurei because she married, and also to 200 because the condition was void? She got only 200. (D. 35, 1, 100.) "If Seia marries with the consent of Titius, I bequeath her a farm." Whether *ritius dies before or after the testator, and whether he consents to her marriage or not, Seia can claim the farm. (D. 30, 54, 1 ; D. 35, 1, 72, 4 ; D. 35, 1, 23, pr.) A legacy to Seia "if she marries Titius." This condition is illegal if Titius is a person she could not honourably marry, for in that case the condition is equivalent to a prohibition of marriage ; but if that is not so, the condition is valid. (D. 35, 1, 63, 1.) The conditions, "if the legatee marries," or "if the legatee has children,'' are valid, but are remitted when the legatee becomes a monk or nun. (Nov. 123, 37.) 8. Conditions against morality are treated as null. (D. 28, 7,9.) " If the legatee does not redeem his father from captivity, or does not give a main- tenance to his parents or patrons." Such a condition is void. (D. 28, 7, 9.) A trust to adopt a person is not valid. (D. 32, 41, 8.) But a condition to eman- cipate a child is valid. (D. 35, 1, 92.) " If the legatee throws the remains of testator into the sea." Such a condition raises a violent presumption against testator's sanity. If that presumption is clearly rebutted, the condition is to be disregarded. (D. 28, 7, 27, pr.) " If the heirs give security to deliver legacies to persons who are by law incapable of taking legacies." The condition is void, and even if a promise be given to the legatees, it cannot be enforced. {D. 28, 7, 7.) Regula Catoniana. A legacy that, owing to one or other of the restrictions stated, would have failed if the testator had died at the moment of mating his will, is not confirmed by the subsequent removal of the impediment. (D. 34, 7, 1, pr.) Thus, as we have seen, if something belonging to the legatee is bequeathed to him, he cannot claim the legacy, because he has sold the thing, and at the time of testator's death it is no longer his. So if a bequest is made of statues or columns that at the time of the will are fixtures, and cannot therefore be bequeathed separate from the land, the legacy fails, although before testator's death such a separation may take place. (D. 30, 41, 2.) This does not REVOCATION. 949 apply, however, to conditional legacies (D. 35, 1, 98), nor to those that vest (like usufruct) at the entry of the heir, and not at the death of testator. (D. 34, 7, 3.) In certaiu cases, the acquiescence of the heir makes up any defect. Thus if codicilli are set aside, but the heir accepts them and pays something under them, and allows slaves therein desired to be manumitted to remain free, they are entitled to full manumission. (D. 40, 5, 30, 17.) Demetrius charged his heir (his mother) to give a freedman a monthly allowance of food and an annual allowance of clothes. She observed the wishes of the deceased for a long time (in such case not less than three years). Held that she must continue to do so, and pay all arrears. (C. 6, 42, 1.) An heir cannot be compelled to perform a defective trust (C. 6, 42, 23) ; but if he does so, the money or property cannot be demanded back. (C. 6, 42, 2.) B. Revocation of Legacies. The peculiarity of wills and legacies is, that while made in the lifetime of the testator, they do not take effect until his death. Hence it is necessary to the final eifect of a legacy that it be not revoked or rescinded. The revocation of a legacy may take place in several ways, which may be arranged under two heads, (a.) By the Act of Testator; (B.) By Events. (A.) Eevocation by Act of Testator. I. Ademptio. In the time of Justinian any legacy could be revoked by any expression of testator's wish to that effect. (D. 34, 4, 3, 11.) The revocation of legacies, whether they are revoked in the same will or in codicilli, is valid, whether it is made in contrary words, as when a man has left a legacy in the form, " I give and leave," he may revoke it by saying, " I do not give, I do not leave ; " or by words not contrary, that is, by any other words whatever. (J. 2, 21, pr.) Eevocation may be implied. 1. From a serious quarrel arising between the testator and legatee after the making of the legacy. A testator gave his freedman a legacy, and by a subsequent will described him as "pessimus" (D. 34, 4, 18), or "ungrateful" {ingratus). (D. 34, 4, 29.) This is an implied revocation. Seia left to Titius five pounds of gold. Titius accused her of having conspired to murder his father. After this accusation Seia wrote codicilli, but did not revoke the legacy. She died before the conclusion of the trial. It w;n sho\vn, however, that she was no party to the death of Titius' father. Held that the legacy was revoked. (D. 34, 4, 31, 2.) 2. By the testator's subsequent dealings with the property bequeathed. 95° LEGACY, If a testator leaves what is his own, and afterwards alienates it, Celsus holds that if he did not sell it with the intention of revoking it, it is none the less due ; and so the late Emperors Severus and Antoninus decided by a rescript. The same Emperors decided by a rescript that if a man, after making a will and leaving lands as a legacy, pledges those lands, he must not be held to have revoked the legacy, and that the legatee, therefore, can bring an action against the heir to have the lands released by the creditor. If, again, a man alienates part of what he has left as a legacy, the part that is not alienated is due in any case, but the part that is alienated is due only if it was alienated with no intention to revoke the legacy. (J. 2, 20, 12.) We are told that alienation created a presumption of revocation, which it was for the legatee to rebut. (D. 34, i, 15.) If the alienation was prompted by necessity, the burden of proving an intention to revoke lay on the heir. {D. 32, 11, 12.) If, however, the testator made a gift of the object bequeathed, the legacy was extin- guished. (D. 34, 4, 18.) A father left his daughter gardens with all their stock. He afterwards gave some of the slaves belonging to the garden to his wife. Tliis was a revocation of the legacy so far as these slaves were concerned, even if the gift to the wife should not be valid. (D. 34, 4, 24, 1.) 3. Scoring out the name of a legatee by the testator is evidence of inteution to revoke. (D. 34, 4, 16.) But (1) revocation is not presumed, when in a subsequent imperfect will the testator does not repeat the. legacy because he may have intended to revoke the first will only in the event of the second taking effect. (D. 32, 18.) (2) A revocation of a legacy is not conclusive proof of an intention to revoke a trust imposed on the legatee. If, there- fore, no such intention existed, the heir must execute the trust. (D. 34, 4, 19.) II. Translatio Legatormn (Transfer). 1. A change in person of legatee. A legacy can be transferred also from one to another ; as when a man says, " The slave Stichus that I left to Titius, I give and leave to Seius." Whether he does this in the same will or in codicilli, in both cases the legacy to Titius is revoked, and it is at the same time given to Seius. (J. 2, 21, i.) If the second legatee is incapable of taking, as if he is a slave of the testator (D. 34, 4, 20), and the legacy thus fails, the first legacy is nevertheless revoked, because it was the inteution of the testator to deprive the legatee of what he had at first intended for him. (D. 30, 34, pr.) If, however, the second legacy is conditional, and the first unconditional, it was presumed that the testator did not mean to revoke the first, unless the condition of the second was fulfilled. (D. 34, 4, 7.) REVOCATION. 95 1 " Let my heir give Titius a fni-in. If Titi\is alienates that farm, let him give the same farm to Seiiis." This is not a, revocation of the legacy to Titius, but the heir may require security from Titius, because if he should attempt to alienate it, the heir would he compelled to make it good to Seius. (D. 34, 4, 3, i.) " I give and bequeath a farm to Titius ; if Titius shall die, I require my heir to give it to Sempronius." This is a good legacy to Sempronius, even if Titius should be dead at the time of the will. (D. 34, 4, 3, pr.) " Let my heir give 100 aurei to Titius ; if he does not, then to Sempronius." If, from any cause, the legacy does not vest in Titius, then, and then only, is the sum due to Sempronius. (D. 34, 4, 3, 3.) 2. A change in the person charged with a legacy, as " What I charged Titius to pay, let Seius pay." (D. 34, 4, 6, 1.) 3. When the object of the legacy is changed. A testator appointed his two daughters heirs equally. To one he gave a pi-e-legacy of a farm on trust to pay 20 aurei to the other ; afterwards he gave to the other half the farm. Held that this second bequest was a revocation of the gift of 20 aurei. (D. 32, 39, 2.) 4. When an unconditional legacy is subjected to a condition. When a testator leaves 100 aurei unconditionally, and the same amount subject to a condition, it is a qiiestion of his intention, whether the second attaches a condition to the first, or vrhether the two are independent. (D. 34, 4, 9.) A testator bequeathed a farm to Titius on trust for Seius. Afterwards in codicMi he bequeathed the same farm to Titius without repeating the trust. Held that the latter writing is to be preferred to the earlier, and that the trust is not due. (D. 34, 4, 28.) (b.) Revocation by Events. I. The failure of the will in which the bequests are contained. The legacies fall with the will, unless there is clear proof that the testator meant to bind the intestate as well as the testa- mentary heirs. II. The death of the legatee before the legacy vests (dies ccdit). (D. 35, 1, 59, pr.) III. Interitus rei. — The loss of a thing, or its destruction in any manner save by the act or fault of the heir, falls on the legatee. (D. 30, 26, 1 ; D. 30, 53, 5.) Whether a change of species — as of wool into garments, timber into ships, and the like — was such a destruction of the original as to vitiate the bequest, was a moot point between the Proculians and Sabinians. According to the Proculians, a change of form was a change of thing (D. 32, 88, pr.) ; but according to the Sabinians, the legacy was due if the substance 952 LEGACY. bequeathed were still in existence, whatever the change of form. (D. 30, 44, 2 ; D. 30, 44, 3.) DiVESTrTrvB Facts. — Legacy was in its nature a mode or form of acquisition, and therefore divestitive facts are out of place. A legatee could, of course, release an heir, as he could release any other debtor. One divestitive fact, however, existed — time or condition. If a legacy were bequeathed until a certain time or event, the legatee continued to be entitled until the time or event came. Originally such legacies were disallowed (D. 30, 55) ; but Jus- tinian sanctioned the restriction of legacies or trusts by time. (C. 6, 37, 26.) Remedies. A. Eights of Heir. A legatee has no right to take possession of the things bequeathed without the consent of the heir ; and if he does so, he may be compelled to return the things by the Interdict Quod Legatorum. (D. 43, 3, 1, 2.) The heir must, however, be ready to give security for the payment of the legacy, in the event of the inheritance being solvent. (D. 43, 3, 2, 1.) B. Rights of legatee. I. Simple, unconditional legacy. 1. If the bequest is of a specific thing, the legatee can recover it by the ordinary action {^er vindicationem) given to an owner. (0. 6, 43, 1.) 2. If the bequest is not specific, the legatee may sue the heir or person charged with the legacy as a debtor. 3. In any case, the whole property of the deceased is held to be mortgaged to the legatees, who have thus another resource, the actio hypothecarm or utilis Serviana. (C. 6, 43, 1.) When there are several heirs, the legatee must sue each for a part of the legacy proportional to his share, and cannot compel the solvent heirs to pay for the insolvent. (D. 31, 33, pr.) II. When the legacy is not due at once, or is conditional. 1. When a legacy was not payable until a future time or event, or the law inter- posed delay to a suit for a legacy actually due, the heir or person charged might be required to promise by stipulation for the performance of the bequest, and that he would not maliciously destroy or make away with the property. (D. 36, 3, 1, pr. ; I). 36, 3, 15, pr.) If the heir refused, the legatee could demand to be put in posses- sion custodiae causa. (D. 36, 3, 1, 2.) The heir might be released from the necessity of giving security by the testator (Satis a Scio ^'x^tre meo exirji veto.) (D. 36, 3, 18, pr. ) By a constitution of Zeno, confirmed by Justinian {Nov. 22, 41), a parent charged with a legacy for a child was not bound to give security, unless upon a second marriage, or by the express injunction of the testator. (C. 6, 49, 6.) 2. In the event of there being no person to give security, the legatee could be put in possession, to see that the produce was only gathered, and not made away with by the heir. (D. 36, 4, 5, 22.) INTERPRETATION OF WILLS AND LEGACIES. 953 INTERPEETATION OF WILLS AND LEGACIES. Every question of interpretation is a question of the existence of a right, duty, investitive fact, etc., and might, therefore, properly find a place under one or other of these respective heads ; but it is convenient to gather together instances from various departments to illustrate the general principles of in- terpretation, so far as such exist. In one sense, indeed, the Avhole law of legacies is a law of interpretation, for it rests upon nothing except the will of the testator ; and the nature and extent of the rights and duties of the legatee, and the question whether a valid interest is vested in him, are simply questions of interpretation. Nevertheless, there are some general rules that relate more to the manner of interpretation than to the results, and these will now be discussed under the following heads : — A. When the testator's intention is clearly and sufficiently expressed, but if literally interpreted involves illegality, or absurdity, or injustice. B. When the testator's intention is clearly, but not com- pletely, expressed. C. AVhen the testator's intention is ambiguously expressed. The rules to be stated, unless when the contrary is expressed, are to be understood as applicable to the interpretation both of wills and legacies. A. When a testator has expressed his intention in language clear and sufficient, his intention is to be carried out. (D. 32, 25, 1.) The language of the testator is to be construed in its ordinary sense, and if that sense yields an intelligible meaning, no evidence is admissible to show that the testator used the words with any peculiar signification. (D. 30, 4, pr.) A testator bequeathed furniture (supiilex). He was accustomed to consider silver and garments as included in that word. Servius held that these things could not be included in a legacy of "furniture" simply ; the language must be construed accord- ino' to ordinary u&age, .and not follow the idiosj'ncrasies of individuals. Tabero dis- agreed with this rule, as it might defeat the testator's intention ; but it was approved by Celsus, and inserted in the Digest. (D. 3D, 10, 7, 2.) A testator bequeathed a nsufruct of land to his wife, charging her after her death to give the land to his heirs. Now, as the wife is left only a usufruct, which dies with herself, it is impossible that she can fulfil the trust. Is then the usufruct to be 954 WILLS AND LEGACIES. enlarged into ownership in order that the trust may be effectual ? Ko, the testator's meaning is plain ; he gives only a usufruct, and it is not to be enlarged, although the effect of interpreting it literally is to defeat the trust. (D. 33, 2, 25.) To the rule, as here laid down, there are two general heads of exception — (1) when the directions of the testator are illegal, but his wishes could be carried out in accordance with law ; and (2) where it can be proved that his real intention differs from the apparent scope of his words. I. When a disposition is expressed in a form conflicting with law, but may be carried out in a legal manner. (D. 34, 5, 24.) A father dying left a son and daughter, and charged his daughter by his will that she should not make a will until she had children. This command was illegal, because a testator could not prohibit a legatee making a will. The Emperor, in construing this case, said the testator meant that his daughter should be at liberty to prefer her children to her brother as heirs, but no other persons ; just as if he had said that she should, in the event of her dying without children, give up her property to her brother. The words, therefore, were construed as a trust. (D. 36, 1, 74, pr.) Titius left his property to Gaius, charging Gaius to make Maevius his heir. This charge was illegal, as no one could prescrilje to another person who should be his heir, but it was construed as a trust to give the property to Maevius on the death of Gaius. (D. 30, 114, 6; D. 36, 1, 17, pr.) A testator appointed two heirs, his son and daughter. He requested the daughter to take as a prelegacy froiti herself the villa of Gaza, and his son to take certain lands aho from himself as a prelegacy. A legacy could not be charged by an heir on him- self ; but this disposition is read as it the words {from himself ) were omitted, in which case the prelegacies would be valid. (D. 31, 34, 1.) II. When the literal rendering of a will conflicts with or varies from the proved intention of the testator, the intention is to be preferred to the words. 1. In determining the person by whom or to whom a legacy is to be given, regard is to be had more to the nature of the legacy than to the names mentioned. Julianus Severus died leaving several heirs, and bequeathed to his foster-son 50 aurei, to be paid by Julius Maurus, his tenant, out of the rent due by him. He also left a legacy to Maurus. Held that the heir, and not Maurus, was charged with the legacy, as the object of the testator was simply to point out the source from which the legacy was to be paid. (D. 32, 27, 2.) A legacy to a fUiusfamUias, if he continues in his father's potestas, is held to be a direct bequest to the father. (D. 35, 1, 42.) On the other hand, a legacy to a filius- ■ familias to be paid to him {ut ipsi solvcUw) cannot be sued for by the paterfamilias. (D. 36, 2,14, 2.) A testator charged his heir to pay the taxes of Titius. Titius is the legatee, not the tax gatherer, as it was for the benefit of Titius the legacy was made. (D. 32, 11, 22.) A testator bequeaths 10 aurei to Titius to discharge a debt of that amount due by testator to Sempronius. Is Senipronius entitled to the legacy ? No, because he has his action against the heir, and it ia nothing to him that the testator has directed a legatee to pay it. The heir is the real legatee, and he can sue Titius to force him to INTERPRETATION. 955 pay the nmount to Rempronius. (D. 30, 49, i.) If in the above case Maevina were surety for the testator, he also could compel Titius to pay the debt. (D. 30, 49, 5.) Maevius is surety for Titius. Maevius bequeaths a sum to a legatee to pay the debt for which he is surety. Titius and the heir of Maevius, or either of them, can compel the legatee to pay the debt. (D. 30, 49, 7.) Maevius is surety for Titius to Sempronius. Maevius bequeaths the debt to Sempronius, Semprouius is not legatee, but Titius is, for the amount of the debt. (D. 30, 49, 6.) A testator requires one of several co-heirs to pay all the debts due by hira. The creditors cannot sue on the will, but the co-heirs can. (D. 30, 69, 2 ; D. 34, 3, 7, 3.) When one of several joint-debtors is released by way of legacy, it is a question of intention whether this is a release of the debtors that are not named. If the debtors are partners, and one cannot be released without the other, it is presumed that the testator, in releasing one, meant both. (D. 34, 3, 3, 4.) But if the joint-debtors are not partners, and so one may be released, leaving the rest bound, the presumption is that only the debtor that is named is released, but that presumption may be rebutted by evidence of the testator's intention to release all. (D. 32, 11, 20 ; D. 32, 11, 21.) A testator left as heirs his tutor, his brother, and others. To the tutor he bequeathed 10 aurei, of which he had been out of pocket for the brother. Held that the tut07' was not a legatee, because the sum left was only the amount of his debt, and a legacy to a creditor is in vain {D. 34, 3, 28, 10), but the brother is legatee for the sum. (D. 34, 3, 28, 11.) 2. The coutext may show that the testator's intention differs from the literal rendering of his will. Titius appointed as heirs Seia his wife and Maevia. Seia had one-twelfth, and Maevia eleven-twelfths. He stated that his body was to be delivered to his wife, to be buried by her in a particular iield, and a monument was to be built to the value of 40 aurei. The share of Seia came to 150 aurei, and it was held that although the construction of the tombstone was specially charged to Seia, the testator could not have intended her to pay so much as 40 out of 150 aurei; and the true construction of the will was that Seia should pay one-twelfth, and Maevia eleven-twelfths of the 40 aurei. (D. 32, 42.) " I charge my sons, if either of them dies without leaving children, to give his share of my inheritance to his surviving brother ; and if both die without leaving chil- dren, I wish my property to go to my granddaughter Claudia." The first that died left a son, the surviving brother left no children. If the words are read strictly, Claudia will get nothing ; but it was held that the true meaning was that Claudia should take the share of whichever brother died childless, and therefore she gets one- half of the inheritance. (D. 36, 1, 57, 1.) 3. Evidence, outside the will, may show that the testator's words, if construed literally, would defeat his intention. A testator bequeathed to a person above fourteen and under twenty-five a legacy when he should have reached puberty. It was held that by puberty the testator meant full age ; namely, twenty-five. (D. 32, 50, 6.) A testator bequeathed to his concubine a farm, with its bailiff, his wife {contu- bernalis) and children. Do children include grandchildren ? Generally not (D. 50, 16, 220, 1), but in this case it was held to include grandchildren, in order to prevent their separation from the mother, because if the literal construction were adopted, the bailiff's children would go with him to the legatee, and his children's children would belong to the heir. It was presumed that the testator did not wish to break up the family. (D. 32, 41, 5.) 956 WILLS AND LEGACIES. A testatrix by will manumitted Dama and Pamphilus, and bequeathed them a fai-m, to go after their death to their children (filii). By her will she also charged her heirs to manumit Pamphila, the natural daughter of Pamphilus. Pamphilus, after his legacy vested, made a will appointing Maevius heir on trust to surrender his share of the farm to Pamphila as soon as she was freed. Held that Pamphila took directly under the will of the testatrix under the name of "children," although, being born in slavery, she could not be u legitimate child of Pamphilus. (D. 31, 88, 12.) A testator bequeathed to " his f reedmen " the allowance of food and other things he had been accustomed to give them. One of the freedmen was away four years on his own business, with the permission of testator, and of course during that time received nothing ; but to him, as to the other freedmen, the testator gave a legacy of 5 aurei. Held that, notwithstanding his absence, the freedman was entitled to participate in the legacy of food, etc. (D. 34, 1, 19.) Titia on her death bequeathed to all her freedmen and freedwomen the allowance of food and clothes she had been accustomed to make to them in her lifetime. As her accounts showed, only three of them were in receipt of such allowance at the time of her death ; nevertheless, all get the benefit of the legacy. (D. 34, 1, 15, 2.) A testator charged his heir to pay to all his freedmen a certain amount in lieu of maintenance. Two of his freedmen, Dama and Pamphilus, the testator had, two years before his death, and before the making of the will, driven from his house, and ceased to give them food. They could not claim the legacy unless they proved that the testator's feelings towards them had afterwards become more friendly. (D. 31, 88, 11.) B. The will of a testator may be expressed clearly, but may not go far enough to enable it to be carried into effect ; or the testator may have declared that his dispositions are not complete. 1. A testator gives clear and sufficient terms, but indicates his intention at a future time to modify his gift, or make it conditional. " Let Titiiis be heir, subject to the conditions afterwards stated." No such con- ditions were stated. The appointment of Titius is unconditional. Justinian gave this decision in accordance with the opinion of Papinian, given in the following case. Villages {vici) were left on trust for the State ; the villages had distinct boundaries. The testator said that in another document he would specify the boundaries, and the conditions of the annual games he wished to have celebrated, and died without doing 60. Nevertheless, the legacy is valid. (C. 6, 25, 8 ; D. 31, 77, S3.) 2. When one of several co-heirs is asked to give anything to his co-heirs, and the shares in which these are to take are not specified, they take the shares ia proportion to their shares of the iuheritance. (D. 36, 1, 78, 4.) Maevia appointed heirs her son Gains for five twelfths, her daughter Titia for three-twelfths, and her son Septicius for four-twelfths, on trust as to Septicius, if he died under twenty without leaving children, that his share should go to the other two. Septicius died under twenty withoutleaving children. His share is not divided equally between Gaius and Titia, but in the proportion of five to three. Gains gets five- eighths and Titia three eighths of the share of Septicius. (D. 36, 1, 78, 5.) INTERPRETATION. 957 3. When the kind or quantity is left undetermined. A legacy of a number of coins {mimcrus nummorum), without speoiry!ii{» what coins, is not void for uncertainty, but evidence is admissible to show what coins the testator meant. The most decisive evidence is the habits of the testator, and next the custom of the country. Regard is also to be had to the disposition of the tes- tator, the rank of the legatee, or the affection or relationship subsisting between them ; and finally, to the context. (D. 30, 60, 3.) The presumption is in favour of fixing the sum as low as possible. (D. 32, 75.) When the kind of thing- is clearly expressed, but the quantity is not, the general rule is that the legacy is to be made as little onerous as pos.sible to the heir. A legacy is left to Titius of as much as one heir gets. Held that the measure is the quantity taken by the heir that has the smallest share. (D. 32, 29, 1.) A testator left to a person his Cornelian farm. It appeared that there were two of the same name. Held that the legatee must be content with the smaller, unless he can prove that the testator meant him to have the larger one. (1>. 30, 39, 6.) But in other cases, from the nature of the bequest, or from the relation between the testator and legatee, it was held that the testator meant to give as much as the words would carry. Seia in her will said that if she lived she would do it herself, but if fhe died she requested her heirs to set up a statue, weighing 100 lbs., in the temple of her native place, with her name upon it. In the temple the statues were of bronze or silver. As Seia did not specify the materia], it was held from her purpose of piety that she meant the best, and therefore the statue was to be of silver ; not of gold, because such statues were not in that temple. (D. 34, 2, 38, 2.) Pompeius Hermippus appointed his son Hermippus heir for nine-twelfths, and his daughter Titiana heir for three-twelfths, giving each certain lands by way of pre- legacy. If Hermippus died without leaving children, other lands were to be given to Titiana. Afterw.ards the testator made codicilli, giving Titiana certain lands in full satisfacti(m of her part of his inheritance and of what was left in his will. The property of Herinippus fell to the Eiscus. Titiana took under the codicilli, and the question arose whetlier she would also take the lands she was to get not directly under the will, but in the event of her brother dying without issue. It Avas held that the codicilli excluded her only from what she would have taken under the will in her brother's lifetime, not from what she was entitled to only on his death. (D. 32, 27, 1.) 0. When the testator's intention is obscure or ambiguous. Ambiguity arises from various sources, some from the snares of language, others through the negligence or uncertain views of the testator. We may divide these sources under three heads : — 1. When ambiguity arises from the language or gi-ammatical construction adopted by the testator. II. When the operative words are clear, but doubt is cast 9S8 WILLS AND LEGACIES. upon them through some inconsisteut and iinuecessary state- ment. III. When the ambiguity arises from conflicting dispositions of the testator. I. Ambiguity arising from language or grammatical con- struction. 1. Words importing the masculine gender, include the femi- nine gender; but words importing the feminine gender do not include the masculine gender. (D. 50, 16, 116 ; D. 50, 16, 163, 1 ; D. 32, 93, 3.) Thus, horse includes mare (D. 32, 65, 6) ; "gill" does not include "boy" (D. 32, 8, pr), nor daughter, son (D. 31, 45, pr.). 2. The past or present tense does not include futurity, but in some legacies, as of aliment, farm stock, etc., words of the present or past tense are regarded as spoken from the death of testator, not from the making of the will. A bequest by a testator to his wife of whatever he had given her or bought for her use, does not include gifts made after the will. (D. 32, 33, 1.) A legacy of release to a debtor, as " whatever he owed," does not include sums borrowed after the making of the will. (D. 34, 3, 28, 2.) 3. The conjunction " and " is often read as " or," and con- junctive terms are taken disjunctively. " If Stichus and Dama, my slaves, be mine at the time of my death, then let Stichus and Dama be free, and have a certain farm to themselves." Stichus was sold or manumitted by the testator. Dama, although verbally conjoined with him, is en- titled to hie freedom and the bequest. (D. 32, 29, 4 ; D. 28, 7, 2, 1.) Gaius Seius is heir for six-twelfths, Lucia Titia for three-twelfths, and others for three-twelfths. The testator charged Gaius Seius and Titia on their death to give to Titius and Sempronius one-half of what he left them. Both Gaius and Titia entered, and Gaius died first. Titia must at once give up what is due out of the share of Seine, and on her death what is due out of her own. Here, after their death, is read as after the death of each so much is to be given. (D. 36, 1, 78, 7.) But the context might show that the trust was due only on the death of the survivor. (D. 33, 2, 34, pr.) 4. The alternative conjunctions " aut," " vel," and " sive " have often other meanings, even conjunctive. " I give and bequeath to my wife her ornaments or {seu) whatever I have got for her use." Here " or " {sive) is equivalent to " and." (D. 34, 2, 30.) A woman bequeaths lands to her husband on trust, if he had children, to them after his death ; if he had none, then to his or (sive) her next of kin, or (aut) even to their freednien. This does not give the husband any power of choice, but simply indicates the order in which the classes named shall be entitled to the property. {D. 31 77,32.) " If a son or daughter is born to me, let such be heir ; if neither a son nor daughter is born to me, let Seius be heir." If a son and daughter are bom, both are heirs although " or " is used. But the birth of either excludes Seius. (D. 34, 6, 13, 6.) INTERPRETATION. 959 5. The position of an adjective or adjective clause coming after several substantives may create ambiguity. A woman made a legacy ia these terms : " Quisquia mihi hares erit, Titiae vestim meam, mundum ornamentaque muliebria damnas esto dare. " The adjective "muUeh-ia" was in this instance held to apply to " ornamenta " only. (D. 34, 2, 8.) " Uxori meae vestem, mundum muliebrem, ornamenta omnia, aurum, argentum, quod ejus causa factum paratumque esset, omne do lego." The words italicised were held to apply to each substantive, and not merely to aurum and argentum. (D. 32, 100, 2.) 6. Ambiguity from the position of a clause. "Fundum Seianum heres meus Attio cum Dione Maevii servo dato." Here the slave of Maevius may be either joint-legatee with Attius, or may be himself bequeathed along with the Seian farm. The latter was considered to be the probable meaning of the testator, unless some particular reason existed for his making a legacy to the slave of Maevius. (D. 3i, 5, 13, 1.) 7. A doubt often existed whether a condition was not meant to extend to other clauses than that with which it is immedi- ately connected. The answer depended on the nature of the circumstances and on the context. A testator appointed a, filiusfamilias, Titiiis, one of his heirs, unconditionally, and gave a legacy to him, saying in the same will, "As I have appointed Lucius Titius heir, so I wish him to accept the inheritance, if he is released from his father's potestas." This condition was held not to apply to the legacy, which, therefore, could be demanded from the co-heirs. (D. 36, 2, 27, pr.) A testator beqiieathed a house to his freedmen, in order that they might dwell in it and keep up his name, and that the longest liver of them should have the whole ; and he added this much in addition {hoc amplius), "I wish to be given to them the Sosiau farm." The bequest of the farm was subject to the same restrictions as the bequest of the house. (D. 35, 1, 108.) A freedman appointed two heirs equally, his patron and his daughter — as to the daughter on trust, for certain female slaves of the patron, on their manumission ; and in default of his daughter, the freedman substituted these female slaves as his heirs. The daughter refused to enter, and these slaves entered by order of the patron as sub- stitutes. Afterwards they were manumitted. Could they claim the half of the freed- man's property ? Yes, because the substitution was held to be subject to the same condition as the trust, that it was to take effect on their manumission. (D. 31, 83.) A condition is held to be repeated when it is necessary to the validity of the subsequent legacy. " Let my heir give Stichua my slave 5 aurei ; and if Stichus serves my heir for two years, let him be free.'' Here the legacy of 5 aurci would be void if it were to take effect before the slave's freedom. Held, therefore, that it was due, subject to the same condition as the freedom. (D. 32, 30, 2.) Seius was substituted as heir, and a legacy given him in the event of his not being heir ; and also a legacy of 15 aurei was given to his wife. Held that the condition — if Seius is not heir— does not apply to his wife. (D. 31, 89, 2 ; D. 35, 1, 39, pr.) "Let Stichus, if his accounts are correct, and his wife (contubemalis) be free." Stichus died before his accounts were settled. Held that his wife got her freedom 960 WILLS AND LEGACIES. immediately. (D. 35, 1, 81, pr.) Julian states that she got her freedom only if she paid the balance due by Stichiis, if any balance was due. (D. 40, 7, 31, 1.) II. A second great head of ambiguity arises from the tes- tator saying too nauch. 1. A sum is certain from general terms, but the testator adds precise figures that are not coextensive with the general terms. A testator bequeathed to his wife 50 aurei, the same quantity as he had got with her. The real sum he had got was 40. Held that the figures were the object of the legacy, and the rest mere description. The woman, therefore, was entitled to the full sum named. (D. 33, 4, 6, pr.) " To Lucius Titius I give and bequeath the three pounds of gold that I was aceu«- tomed to allow him in my life." What testatrix really allowed Titius was 40 aurt'i a year, and a certain weight of silver on festive days. Titius may compel the heirs to continue the allowance, although three pounds are mentioned. (D. 33, 1, 19, 2.) In this case precisely the opposite interpretation was adopted, the intention of the testatrix being to continue her allowance. 2. When an accessory is given in the form of a qualifying clause, it does not restrict the extent of the principal gift. A bequest of all one's slaves, with their pecidium, includes not merely those that have a, peculium, but also those that have not. (D. 30, 52.) A bequest of gold, with the gems, and pearls in it, includes the gold that has no pearls or gems in it. (D. 34, 2, 11.) ?i. An explanatory clause does not restrict the operative Avords. A testator bequeathed certain articles of gold and silver to Seia on trust to give them on her death to certain of his slaves ; for, he added, the usufruct of these things in your lifetime will be enough for you. The explanatory clause would make Seia a usufructuary, and so defeat the trust to give the articles to certain slaves ; but it was held not to restrict the bequest of the ownership conferred directly before the explana- tory clause. (D. 34, 2, 15.) If, however, the operative words had given a usufruct, and the explanatory words had disclosed a trust, the trust would have failed. (D. 7, 5, 12; D. 34, 2, 15 ; D. 33, 2, 25.) A testator bequeathed to his freedmen and freedwomen his lands in the Isle of Chios, in order that they might out of the proceeds obtain the allowance of food and clothes he had made to them in his lifetime. Modestinus held that this clause ex- plaining the object of the legacy did not restrict the operative words, and that there- fore the freedmen take the land as joint-owners, so that before the legacy vests, the shares of predeceased freedmen vest in the survivor?, and after the legacy vests in the heirs of deceased freedmen. (D. 34, 1, 4, pr.) 4. When to the bequest of a class of things the testator adds either sub-classes or individuals, generally the addition is treiited as a superfluity, and therefore not restrictive. (D. 33, 10, 9, pr.) But the context may show that the testator added them restrictively. A testator bequeathed a stocked farm {fundus instrvctus) with the furniture and slaves. These things are included in a legacy of stocked, farm but they do not restrict the words " stocked farm." (D. 33, 7, 12, 46.) INTERPRETATION. 96 1 Seia was appointed heir, and if she became heir, a prelegaoy was given her of stocked farms, with their bailiffs and the arrears of rents of tenants. Afterwards in codiciUi he added that he wished Seia to have the farms bequeathed "just as they are stocked," with implements of husbandry, furniture, cattle, bailiffs, the arrears of tenants, and storehoi^ses. It was clear when the testator made the codiciUi that he had forgotten the will, and in this case the words "fundus instructus " were held to cover only the classes of things specially enumerated. (D. 33, 7, 20, pr.) " My villa, in the state in wliish I possessed it, with the furniture, tables, slaves, both urban and rural, dwelling there, the wines that shall be found there at my death, and 10 aurei" were the object of a legacy. Although (ita ut ipse possedi) would be equivalent to donius instructa, the foUowmg words show what the testator meant, and the legacy does not include books, glass vessels, or clothes. (D. 33, 7, 18, 13.) A testator bequeathed a stocked farm, and to the same legatee certain of the slaves attached to it by name. It was considered that the specific bequest of certain of the slaves showed, in the first place, that the testator did not think slaves were included under the desigTiation "stocked farm ; " in the second place, that he never- theless wished to give the legatee some of the slaves attached to the farm ; and in the third place, none except those specially mentioned. (D. 33,, 7, 18, 11.) A testator bequeathed to _a legatee specifically two statues of marble, and then " all his marble " {omne marmor). There was a difference of opinion among the jurists as to the effect of this bequest. The view adopted by Labeo, Cascellius, Pomponius, and Javolenus, and in the Digest, is, that, only the two statues are due, as the words " all marble " must be restricted to those named. Ofilius and Trebatius, whose opinion was overruled, said that all the marble statues, as well as those mentioned, were included in the legacy. (D. 34, 2, 1, pr. ; D. 32, 100, 1.) A legatee was .charged to give food to the testator's freedmen, and afterwards the testator said, " To you I commend Prothymus, Polychronius, and Hypatius, that they may live with you, and obtain food from you." This specig^l, commendation does not take away the legacy of food from the other freedmen, hut. is simply a request for special regard to.-those named. (D. 34,;1, 5.) A testator bequeathed generally to his freedmen and freedwomen food and house- room. He bequeathed 10 aurei to Basilica, one of his freediwomen, to remain at five per cent, interest with two of her freedmen until she was twenty-five, meanwhile the interest to be paid her for aliment. Held that she was not entitled to aliment under the general bequest to the freedwomen. (D. 34, 1, 16, 2.) A testator gave .an annuity, during his life, to Marcus, a man of learning. In his win he charged his wife to see that none of his friends were jn want, and, moreover, to give 80 aurei to Marcus. Could Marcus, as one of the friends, claim the annuity in addition to the 80 aurei ? Yes, on account of the supposed liberality of the testator to a learned man, and the smallness of the legacy, which would not have been an equivalent for. tbe amount. (D. 33,, 1, 19, 1.) ITT. Ambiguity arises when the testator makes several dis- positions that cannot be carried out, each in its integrity. Where two injunctions of a testator are irreconcilable, neither is to, be given effect to. (D. 50, 17, 188.) If, however, one of the injunctions is contained in codiciUi of later date, that one is to be preferred. (C. 6, 42, 19; D. 30, 12, 3.) But in. a gift of freedoru, that which favours manumission, not that which is later, is preferred. Thus if a slave is ordered to be free, and afterwards bequeathed as property, the bequest is 962 WILLS AND LEGACIES. void (D. 31, 14, pr.), unless a- clear intention to revoke the gift of freedom is proved. (D. 40, 4, 10, I ; D. 40, 5, 50.) " Let Titius, when he can, be tutor." " Let Titius be tutor if the ship comes from Asia." These conditions were contained in the same document. The latter condition must be fulfilled before Titius is tutors i.e., not the least onerous, but the most recently written condition, umst be fulfilled. (D. 26, 2, 8, 3.) " I give and bequeath Stiohus to Sempronius. If Sempronius shall not manumit Stichus within a year, let the said Stichus be free." Here the legacy to Sem- pronius is qualified by the subsequent conditional gift of freedom. Sempronius, if he manumits Stichus within the time, becomes patron ; but if he does not, Stichus is free under the will, and the testator is his patron. (D. 40, 4, 15-) "Let Tithasus, if he ascends the Capitol, be heir." "Let Tithasus be heir." The unconditional appointment is preferred to the conditional, from the anxiety of the Homan law to prevent the failure of wills, (D. 28, 5, t)7.) 1. When the conflict arises from mistake. Sempronius Proculnsmade two counterparts of his will, a usual custom to preserve the will in case of one copy being lost. In one of the two counterparts the amount of legacy written to Titius was 100 aurei, in the other 50. Prooulus held that the heir deserved most consideration, and that the legatee should take only 50. (D. 31, 47.) 2. When the same thing was beqneatlied twice over to the same person, the question was whether it was intended as a repetition of the bequest, or as a double bequest. When the same thing is bequeathed twice over in the same document from the same heir to the same legatee, the heir owes the thing only once. If it is not a specific thing that is bequeathed, but a sum or quantity, the presumption is the same, although it may be rebutted by clear and convincing evideace of the testator's intention to double the amount. (D. 30, 34, 3.) When the same sum is bequeathed in the same will from two different heirs to the same legatee, it is held to be due separately from each, unless a contrary intention is proved of the testator. (D. 31, 44, 1.) When a legacy is given by will, and the same amount after- wards from the same heir in codicilli, the burden of proving that the testator did not intend the second legacy to be additional falls on the heir, not on the legatee. (D. 22, 3, 12.) When the same thing is given in the same will to the same legatee, but from two different heirs, one must give the thing, and the other its value. (D, 30, 53, 2.) But when a farm, part of a dos, was bequeathed specifically, and afterwards generally the dos to a wife, it was held that the farm was due only once, not twice. (D. 33, 4, 1, 14.) INTERPRETATION. 963 When different amonnts are bequeathed by the Bame or different instruments to the same legatee, the nature of the legacy is to be considered in determining whether the second is in addition to or in derogation from the first. A testator freed certain slaves by will, and bequeathed them 10 aurei a month for maintenance. Afterwards he bequeathed to all his freedmen 7 aurei a month for maintenance, and 10 aurei a year for clothes. It was held that the second legacy rescinded the first (D. 34, 1, 18, pr.) Paula appointed CaUinicus one of her heirs, and bequeathed 10 aurei to his daughter Jubentiana on her marriage. In codicilU she bequeathed to Callinicus 100 aurei^ with- out saying hoe amplius. Both legacies, it was held, were due, particularly as nothing was left to his daughter by the codidUi. (D. 32, 27, pr.) S. When the ownership of a thiug is bequeathed, and the usufruct of it. A farm is bequeathed to Titius, and by the same testator the usufruct of it. If the legatee chooses the ownership, the usufruct is included ; if he chooses the usufruct, he does not get the ownership. (D. 33, 2, 10.) A farm is bequeathed to Titius, and the usufruct erf it to Gains. The correct interpretation of this is, that during their lives Titius and Gaius have the usufruct jointly ; after the death of Gaius, Titius or his heir is owner. (D. 33, 2, 19.) 4. A bequest may be made to two persons of things by class names, which to a certain extent may cover the same ground. " I give and bequeath to Titia my weavers, except those I have bequeathed to another by this will. To Plotia I bequeath all the slaves born in my house, except those I have bequeathed to another." Some of the slaves answered the description of both classes ; they were weavers, and also bora in testator's family. These must be equally divided between Titia and Plotia. (D. 30, 36, pr. ; B. 32, 9-9, 5. To Titius "clothes" are beqTieathed, to Titia "women's clothes." Titius gets clothes after deducting women's clothes. (D. 34, 2, 1, pr.) To Titius. a legacy of provision is given ; to Gaius, of wine. Titius gets the provision left by testator, less the wine. (I>. 33, 6, 2, pr.) Stichiis is n>anumitted by will, receiving his pecuiium (which includes a female slave) as a legacy. The testator bequeaths all his female slaves to his wife. Held that this did not include the slave contained in the peeuliuraj and it was immaterial which legacy was fiir&t mentioned, (D. 33, 8, 15,) Stiehus is manumitted by will, receiving his pecalium as a legacy. His peculium includes, infer alia, Pamphilus. Pamphilus is m;anumitted by will. Held that the gift of freedom should be preferred to the legacy of pecnlium. (I>. 40, 4, 10, pr.) A testator bequeathed to all his freedmen their wives and children, except those he desired to belong^ to bis wife, or bequeathed to her individually. He afterwards bequeathed to his wife certain lands with everything on them, and slaves both rural and urban, and stewards (actorea), excepting only those manumitted by him. Eros and Stiehus managed that property to the time of testator's death (as adores). They were children of Dama, who was manumitted by the testator. I>o Eros and Stiehus therefore go to the testator's wife under the description of adores^ or to Dama under the description of their children ? Eiom a regard to natural affection, it was held that Eros and Stiehus should be given to Dama. (D. 32, 41, 2.) A testatrix manumitted Eellcissimus and Felioissima, bequeathing to them the Fundus Qargiliarms. She bequeathed to her son Titius all that she had got from his 964 WILLS AND LEGACIES. father and uncle. She got the Fundus Gargilianus from his father. Could Titiua claim it, or part of it? Seeing that nothing was left the two manumitted slaves except this farm, it was held that the general words of the legacy to Titius could not deprive them of the farm specifically bequeathed to them. (D. 32, 41, 3.) A testator, inter alia, manumitted his stewards, and bequeathed theii peculium to them ; to certain of his freedmen he gave legacies, and to all a bequest of food and raiment. After the will a daughter was born him, and in codicilli he required all the legacies to abate to the extent of a third in favour of his daughter Petina. It was held that the bequest of food and raiment did not abate, as presumably it was not beyond what was required, and therefore could not suffer abatement. (D. 34, 1, 18, 3.) BOOK IV. CIVIL PEOCEDUEE. BOOK IV. LAW OF PROCEDURE. The history of Romfin Civil Procedure presents a very striking picture of the extremely slow growth of Civil Juinsdiction. In modern times, the right of the State to obedience is in theory unqualified; its absolute sovereignty is recognised as amoral and political axiom. But this authority, so familiar to us that we no more feel inconvenience from its pressure than we do from the weight of the atmosphere, would have received but scant recognition from the men that laid the foundations of Roman greatness. At the time of the XII Tables, the State did not as yet claim to decide civil disputes, although it sanctioned the use of force to bring an alleged wrongdoer before the tribunals. At an earlier period, as we may infer from the peculiarities of the oldest form of legal procedure — the sacra- inentum — even this limited authority was denied. The earliest type of judicial proceedings is a mock combat followed by a reference to arbitration. The first judges were simply arbitra- tors. Civil jurisdiction sprang out of arbitration. The coercive authoiity of the State grew out of the voluntary submission of the subject. That is the keynote to the history of Civil Pro- cedure in Rome. The development of this theme occupies the greater portion of the present Book, PROCEEDINGS IN A CIVIL ACTION. PAET I.— THE SUMMONS. {In Jus Vocatio.) The first step to be taken by an aggrieved party, is to bring the person of whose conduct he complains before a court of justice. Looking at this subject historically, three epochs are to be distinguished : — 968 LAW OF PROCEDURE. First, the Law of the XII Tables. At this time the sum- mons is a private act of the complainant, and disobedience to the summons is not an offence against the law. The whole length that the XII Tables go to is to legalise the exercise of force by a complainant to drag an unwilling defendant before the court. Second, The ■ Edicts of the Praetors. • The summons is still a private act of the complainant, but disobedience is made a wrong, and the principle is now established that it is the duty of a citizen to be ready to answer in the courts of- justice any complaint brought against him. Third, The Imperial Coustitutions; The summons is issued, on the application of a complainant, by officers of a court of justice. This change was al§o made the means of giving notice to the person sued of the wrong alleged to be done by him. First— Summons according to the XII' Tables.. The first of the Xll Tables contains the provisions already enumerated. (See p. 17.) This mode of summons continued down to the golden age of literature and the classical age of jurisprudence, and we find in Plautus, Terence, and Horace examples of the formal sum- mons — te in.' jus voco, ambula in jus, in jus eamus, sequere ad' tribunal. Apparently, by the law of the XII Tables, the defendant, if he were the stronger, or had friends to help him, could resist arrest without exposing himself to any punishment. Moreover, force could be lawfully employed only when witnesses were called to testify to the refusal of the defendant to obey the summons. A person on being summoned could avoid an immediate resort to the court by giving bail for his appearance. The bail was called vindex, and by taking upon himself the respon- sibility of the defendant, released him from arrest. "For one of the better classes (adsidui), let a man of the better classes be a vindex ; for a citizen that is a mere workman (proletarius) , anyone that will." Cicero says adsiduus means a wealthy man (Gic. Top. 2, 10) ; but it is thought by some that adsiduus means a person that had land, and proletanus a man that had no land of his own. THE SUMMONS. 969 Second — Edicts of Prastor. The PrsBtor left the mode of summons as regulated by the XII Tables, but introduced tlie folio-wing important changes : — I. He made it an offence for a person duly summoned to refuse to obey. (D. 2, 5, 2, 1.) A person summoned was not allowed to refuse on the ground that the court to which he was summoned had no jurisdiction. That was a plea that could be listened to ' only before the court itself. (D. 2, 5, 2 ; D. 5,1,5.) IL He made it an offence to rescue' a person summoned, or in any manner to cause his escape (D. 2, 7, 4, 2), or even to cause such delay that the coniplainant lost his action by pre- scription. (D; 2, 7, 4,- pr.) A mere ' attempt, however, at rescue, if unsuccessful,' did not entail a penalty. (D. 2, 7, 5, 2.) The amount of the penalty was the valufe of plaintiffs claim, as estimated by himself (D. 2, 7, 5, 1), and payment of the penalty still left defendant exposed to the original claim. (D. 2, 7, 6.) III. In place of the vindex, the practice under the Praetorian jiu'isdiction was to have a cautio judicio sisli. This was either the giving of a surety (fidejussor), or if' the complainant was satisfied therewith, a mere promise of the defendant to appear by stipulation. What was the differenc'e between the vindex and the fidejussor? We can scarcely answer as to the degree of liability of each, but probably the vindex was hampered by restrictions and liabilities that made the introduction of simple sureties an improvement. In one respect we note a difference. The Praetor ignored the distinction set iip by the XII Tables between adsidui and proletavii' and required any person to be accepted as a surety who had: means to answer the defendant's default. (D. 2, fi, 1.) An exception was allowed by the Praetor, ia the case of persons connected closely together {neoessarii). Thus a freedman that summoned a patron, the children or parents of a patron, or^ a freeman that summoned his own children, or wife, or daughter-in-law, .must accept any surety that offered himself. (D. 2, 8,.2, 2.)i The surety, in the event of the failure of defendant to appear on the day named before the magistrate, without good excuse (D. 2, 11, 5 ; D. 2, 11, 2, 1 ; D. 2, 11, 4, 2), must pay the value of the claim in dispute, even when it is a penalty of two, three, or four fold (D, 2, 5, 3), un- less he has promised only fur a particular sum. (D. 2, 8, 2, 5.) 970 LAW OF PROCEDURE. Anyone that by himpelf ov his agents interfered to prevent a defendant appearing in court on the day agreed upon (D. 2, 8, 8), was liable to an action for damages. (D. 2, 10, 1, pr.) The measure of damages is the loss sustained iu consequence of the non-appearance of defendant, which might be the whole value of the suit, if it were lost by lapse of time. (D. 2, 10, 3.) An example of the acts eo punishable was, if a person spoke an unlucky word, and so deterred the defendant from appearing, even although the blame might seem to rest rather on the defendant's own superstition. (D. 2, 10, 1, 2 ) IV. The Prtetor enabled a complainant to get justice when the defendant kept out of the way to avoid a summons. There were apparently two reasons why the law of the XII Tables, or rather the primitive law of Rome, did not provide a remedy for this case. In the first place, the attitude of the law was to recognise no litigants until they were actually in the presence and invoked the interference of a magistrate. The utmost length the law went was simply not to punish force, when it was exercised in accordance with the XII Tables, for the purpose of bringing a wrongdoer into coiu-t. But, in the second place, it was a characteristic of early Roman procedure, that the tribunals did not attempt to lay hold of anyone's property, but only of their person. Whatever the exact import of this may be, there is no doubt of the fact, that by the original law of Rome no magistrate gave execution against a man's property, but only against his person. The exception (pignoris capio) proves the rule. But if a wrongdoer kept out of the way of his adver- sary, the only remedy open to him was to seize the defendant's propei-ty, since he could not get at his person. It was the Prastor that introduced execution against property. He inserted in his edict a notice to the effect that if a defendant concealed himself to evade a summons {latitare fraudationis causa), he would order his goods to be seized and sold. (D. 42, 4, 7, 1; D. 42, 4, 7, 13.) The concealment must be for some time. (D. 42, 4, 7, 8.) V. Last of all, the edicts of the Prsetor specify the cases where a summons could not be served. 1. Persons that cannot be summoned. (i.) Lastly, we irrnst know .that he that summons another to court can carry through the affair by force, and drag thither him that has been summoned. By the Prsetoi-'s edict, therefore, the persons to whom deference is due (ascendants, for instance, a patron, and a patron's descendants or THE SUMMONS. 97 I ascendants) one may not lawfully summon to court without the Praetor's leave. Against him that acts contrary to this there is a fixed penalty. (G. 4, 183.) In beginning any action, the first step proceeds from that part of the edict in which the Praetor treats of tlie summons to court. The first thing, indeed, is to summon your adversary to court, before the magistrate in other words that is, to lay down the law {jus dicere). In that part of the edict the Pr£etor pays such honour to ascendants and patrons, as also to patrons' and patron- esses' ascendants and descendants, that their descendants and freedmen cannot lawfully summon them to court, unless they have first asked and obtained leave from the Preetor himself. If without this any one takes out a summons, the Praetor has fixed the penalty to be inflicted upon him at 50 solidu (J. 4, 16, 3.) (2.) No magistrate having the imperium could be summoned. (D. 2, 4, 2.) So neither they nor their dependants nor freed- men could sue on contracts ; but in the case of delicts, they were allowed to sue up to the litis contestatlo, but no further- (D. 1, 18, 16.) (3.) Women could be summoned, but no force could be used to compel them to go into court. (C. 1, 18, 1.) 2. No man can be summoned while inside his house; but if he allows the complainant to enter, or shows himself so as to be seen from the public street, he may be summoned ; but in no case can the complainant drag him out of his own house- (D. 2, 4, 19 ; D. 2, 4, 21 ; D. 50, 17, 103.) Cicero thus expresses the Roman feeling on the subject : — " What is there more hallowed, what more fortified by every sense of duty, than each citizen's home ? Here are his altars, here his hearths, here his household gods; here his sacred things, his worships, his cere- monies are all contained. This refuge is so hallowed by all, that to force away any man thence is impious." (Cic. Pro. Domo. 41.) 3. A priest in the act of worship, a bridegroom during the performance of marriage, a judex hearing a cause, a person pleading before a Pr^tor, one performing funeral-rites for a parent (D. 2, 4, 2), or following a dead body (D. 2, 4, 3), or whose presence is required in a Court ,of Justice (D. 2, 4, 4), cannot be summoned. Third — The Summons under the Imperial Constitutions. When the Prsetor made a neglect, or refusal to obey a sum- mons an actionable wrong, there was no longer any necessity to drag a defendant by the neck {obtorto collo). Still the sum- mons remained a private act of the aggrieved person. It would 972 LAW OF PROCEDURE. appear that the further development of procedure in the direc- tion of a public summons took place by the following steps : — The ancient practice of oral summons, followed by the acceptance of a vindex, seems to have given way in favour of a mode that may be described as a reciprocal promise of two persons having a dispute, with or without sureties, to appear on a' given day before a magistrate. This was called vadimonium. The terms vades and subvades are said to have been contained in the XII Tables, and they have been interpreted thus : vades, the sureties given by defendants ; subvades, the corresponding sureties given by complainants ; for obviously it was the interest of the de- fendant to compel the complainant to appear, lest he should lose his time by going to the court. Gaius describes vadimonia as the means of securing the reappearance of parties in court after their first appearance ; and it is possible that the fairness of a plan that provided for the appearance of both parties led to its use in the preliminary stage of the summons, and to the disuse of the one-sided course of giving a vindex. At all events, by the end of the Republic, vadimonia' seem to have been a regular way of beginning a civil suit. From a somewhat obscure passage in Aurel. Victor, (de Caesar, 16) we may gather that the old vadimonia were abol- ished by Marcus Antoninus,- and a new system {denimtiandae litis) introduced. This was a step in the direction of' simplicity. The complainant simply gave notice of his demand to the defendant, and a day was fixed for appearance. Probably the non-appearance of the complainant made a forfeiture of the claim, and the non-appearance of defendant doubtless entailed some penalty. Constantine (a.d. 322) required the denuntiatio litis to take place before a judge (C. Th. 2, 4, 2), and notice of the demand was sent to the defendant by a public officer. (G. Th. 2, 4, 4.) A defendant wilfully disobeying the summons could be fined. The denuntiatio litis was probably a very formal proceeding, and like all such, liable to miscarry. It disappeared before the practice, which was fully established by the time of Justinian, of a written summons (Libell-Us Conventionis). If a passage in a- constitution of Diocletian and Maximian (C. 2, 2, 4) has not been altered by Trebonian, in' ' accordance with a practice not unusual with hint, the written- summons {libellus conventionis) was already knofWH in their day. Ap- parently the summons contained a precise statement of the THE SUMMONS. 973 demand of the complainant, signed by himself, and requiring an answer in five days. (Vet. cujusd. Jur. Consult. 6, 2.) The period afterwards was ten days, extended by Justinian to twenty. (Nov. 53, 3, 1.) Justinian ordered that the complain- ant, if his claim were substantially just, should not be defeated because it varied from the grounds set forth in the summons. (0. 7, 40, 3.) The officers that served the summons were paid accordiug to the amount of the demand. An action for thrice the amount hes when a man has inserted a greater amount than the true one in the writ of summons, so that on this ground the viatores — that is, those that carry out the suits — exacted a larger sum on account of their customary doles {Sportula). Then for all the loss the defendant has suffered by reason of them he will obtain thrice as much from the plaintiff; only the thrice as much includes the simple loss he has suffered. This was brought in by a constitution of ours that shines brightly in our Code ; from which it is far from doubtful that an actio C07tdictitia under the statute will flow. (J. 4, 6, 24.) This is the condictio ex lege which could be brought to enforce any statutory pro- hibition or order. Justinian empowered the judge to refuse the summons unless the complainant gave security to prosecute the suit, or to pay one-tenth of the demand as costs to the defendant. (Nov. 112, 2.) Another enactment required complainants that have taken out a summons to proceed within two months, or pay double the loss sustained by the defendants in consequence of the delay. Thus the summons advanced from the rude form of a legalised use of force, through various intermediate stages, in which Prsetors, Jurisconsults, and Emperors took part, until at length, in the reign of Justinian, it became an act of public authority, and gave the defendant formal notice of the claim made against him. PAET II.— FEOM APPEAEANGE TILL JUDGMENT. First Periqd— COMPULSORY REFERENCE TO ARBITRATION. First— PROCEEDINGS IN JURE. A. Leois Actiones. The oldest form of- civil procedure in Rome — the legis actio sacramenti — professes to be a voluntary arbitration. It was not really voluntary ; for if it were so, there could be no civil 974 LAW OF PROCEDURE. jurisdiction ; but there can be little doubt that what it Avas in later times in form, it was in earlier times in substance. The authority of the State in civil matters was first established when a defendant was not allowed to refuse arbitration ; in other words, when the reference to arbitration was made com- pulsory. Such indeed appears to be the true character of the famous distinction in Roman civil procedure that existed throughout the most important period of legal history and coloured the whole law — that, namely, between proceedings in jure and proceedings in judicio. With few exceptions (see " Transition to Cognitiones Extraordinariae"), -aniW. the reign of Diocletian, the determination of a civil dispute involved two stages — in the first {in jure), the Prsetor or other magistrate appointed an arbitrator, prescribing with more or less rigidity the question upon which he was to pronounce a decision ; and in the second (in judicio), the arbitration itself took place before an arbitrator (judex). This division of labour, which some modern writers have shown a disposition to exalt as a highly scientific arrangement, but which may be viewed rather as an imperfect and inchoate form of civil procedure, lasted until the reign of Diocletian, who made the immense change of committing the trial of civil causes to State-paid lawyers. This step was in harmony Avith the whole course of development of Roman civil procedure ; it was one of the steps by which the State assumed to itself the exclusive control from first to last of civil causes. The proceedings in jure passed through two stages : in the earher, the reference to arbitration was ORAL; in the latter, WRITTEN. To the first stage belong the legis actianes ; to the second, the formulae. The interest of the first is purely historical ; the interest of the occond is more practical : to the formula must be traced the shape and peculiarities of much of Roman law. The phrase " legis actio " has given rise to m'uch comment, for it is employed hj Gaius to designate not merely proceedings that may strictly be called " actions," but proceed- ings to enforce judgments {per manus injection em), and even pro- ceedings of the nature of a wholly extrajudicial remedy {pig- noris capio). The actions the ancients had in use were called legtf actiones, either because they were laid down by statutes, since the Prator's edicts, by which many actions were brought in they had not yet in use, or because they were suited to the words of the actual statutes, and were therefore LEGIS ACTIONES. 975 observed as unchangeable equally with statutes. Hence, when a man brought an action for his vines that had been cut down in such a way that he named them vines, the answer was that he had lost his case, for he ought to have named them trees; because the statute of the XII Tables, under which an action for vines that had been cut down was open to him, spoke generally of trees that had been cut down. (G. 4, n.) Of the legis actio there were five forms, — Sacramento (by wager) per judicis postulaiionem (by demanding s. judex), per condictionem (by formal notice), per tnanus injectionem (by laying hands on a man), and per pignoris capione7n (by taking a pledge).. (G. 4, 12.) But all these legis aciiones by degrees grew hateful. For the excessive subtlety of the ancients who then established the laws brought things to such a pass, that a man tliat made even the most trifling mistake would lose his suit. By the lex AeSuiia, therefore, and the leges Jultae, these legis aciiones were taken away, and a change effected so that we should carry on our suits by regularly-framed words,, that is, hy formulae. (G. 4, 30.) (P. 39.) In two cases only was legis actio allowed — ift the cases of threatened damage {danmum iii/ectum) and of a trial before the Ce?i(uinviri. Accordingly, even to this day, when a trial is to be before the Centtimviri, the proceed- ings begin with the legis actio, called sacramentmn, before the Prcetor Urbanus (City Praetor) or P eregrinus . But as for threatened damage, no one wishes to proceed by a legis actio, but rather binds his adversary by a stipulation, as is set forth in the edict ; and thus has a more advantageous and fuller right than hy pignoris capio. (G. 4, y). Actio Sacramenii. The proceedings in the Sacrammtum toot place before the Praetor. There remains a tradition that the legis actiones were celebrated in the presence of the Pontiffs {collegium Pontificum) (D. 1, 2, 2, 6) ; but within the historic period the initiation of actions belonged to the secular tribunal, first of the Consuls, and afterwards of the Praetors. Festus informs us that the word signifies the money staked as a wager, which was the cardinal feature of the proceedings ; and he adds that the stakes for- feited were required and used for the bronze of the vessels em- ployed in sacred rites. The actio sacrci?nentz viiLS general,, for in all case's for which no other action was provided by statute, an action sacramenti was brought. The action was as dangerous on account of an untrue oath, as at this time is the action for a fixed sum of money lent because of the J^^KjrC (undertaking), in which the de- fendant runs a risk if he rashly denies it, and because of the answering stipu- lation {restipulatio), in which the plaintiff runs a risk if what he demands is not due. The man that was beaten made good the amount of the sacramen- tum by way of a penalty. It went to the State, and securities on that account were given to the Prjetor ; not as now, w hen the penalty of the spo?isio and answering stipulation goes as gain to the party that wins. (G. 4, 13.) The penalty was either fifty asses or five hundred ; the latter in the case of 976 LAW OF PROCEDURE. things worth a thousand asses or more, the former in the case of those worth less, when the action was brought Sacramento. So the statute of the XII Tables provided. But if a man's freedom was in dispute, although as a slave he would be most valuable, yet the amount to be wagered was fixed at fifty asses, a provision of the same statute to favour the coming forward of persons to claim his freedom. . . (G. 4, 14.) I. Proceedings when the dispute was concerning the owner- ship of a moveable. If the action was for a thing, then moveables and moving things, if only they were such that they could be brought or led into Court, were claimed in Court {injure vindicabantur) after this fashion. The claimant held a rod ; then he grasped the actual thing — the slave, for instance — and said as follows : — "This slave I say is mine ex jure Quiritiian, in accordance with the fitting ground therefor, as I have stated ; and so upon thee I have laid this wand," and at the same time laid the rod on the slave.' The opposing party said and did the same in like manner. After both had claimed him, the Prastor said, "Both let go the slave ;" they Jet him go. The one that first had claimed him then asked the other, " I demand that you tell me on what ground you have claimed him; ; " and he .answered, " I fully told my right as I laid on the wand." Then the one that first had claimed him said, " Since you have claimed him wrongfully {injuria), I challenge you to wager five hundred asses; '' and the opposing party too said, " In like manner I challenge thee ; " or else they named fifty asses as the wager. Next followed all the same as in an action against the person. Thereafter the Prsetor gave an interim decision (vindieiae) in favour of one of them — made him, that is, the possessor in the meantime, and ordered him to^ give sureties to his opponent {praedes litis et vindidaruni), for the thing, that is, and its fruits. Other sureties also the Praetor himself used to receive from both parties for the sum wagered, which went to the State. A rod they used as if in place of a spear, a token of lawful ownership ; because men used to believe those things specially theirs that they had taken from the enemy. Hence, in proceedings before the Centumviri, a spear is set up in front. (G. 4, 16.) This very vivid description of the oldest civil procedure in Rome has been for- tunately preserved to us from a part of the MS. of Gains, where niuch is illegible. We may recognise in the proceedings ss thus described .several stages, of which three are stated at length. 1. The proceedings begin with la mock contest, each of the claimants laying hold of the object in dispute and claiming it. This is known as the consertio manuum or vindicatio; and the exercise of force is called by Aulus Gellius vis civilis et festucmia- 2. Summons to peace — " Both let go.'" 3. Each challenges the other to stake a sum npon the truth of his assertion. 4. After that the Prietor decides which shall have the possession of the disputed ' Hunc ego hominem ex jure Quiritinm meum esse .aio secundum suam causam, sicut dixi ; ecce tibi, vindictam imposui . . . mittite ambo hominem . Postulo anne dicas qua ex causa vindicaveris. . . Jus feci sicut vindictam imposui. Quando tu injuria- vindicavisti, D aeris Sacramento te provoco . . . et ego te. LEGIS A CTIONES. 977 property, pending the settlement of the wager by reference to & judex. The technical phrase is dicere vindicias. Up to this point there is not strictly either plaintiff or defendant ; there are simply two persons quarrelling ; but after the Prsetor assigns intermediate possession to one of them, that one is practically made defendant, and his rival is forced into the position of plaintiff. But the person constituted possessor was bound to give sureties for the restoration of the object in dispute (lis), and also for the profits derived from it pending the trial (vindiciae), in the event of his losing his wager. The sureties were called praedes, and seem to have been appointed in the presence of the Prcetor by oral interrogation, as in the judicial stipulation. (Varro, De Ijatina Lingua, 6, 74.) They were called praedes litis et vindiciarum. 6. The question referred to an arbitrator was, which litigant was right in his wager, Saeramentum esse justum vel injustum. It is presumed that the successful litigant then applied for the restoration of his stake, and if he had not possession, and was refused possession, that the Prsetor wwuld grant execution, and compel the pos- sessor to deliver up that which was no longer his^ *'It is impossible," say» Sir Henry Maine (Ancient Law, p. 376, 4th edit.), "I think, to refuse assent to the suggestion of those who see in it a dramatisation of the origin of Justice. Two armed men are wrangling about some disputed property. The Prsetor, vir pietate gravis, happens to be going by, and interposes to stop the contest. The disputants slate their case to him, and agree that he shall arbitrate between them, it being arranged that the loser, besides resigning the subject of the quarrel, shall pay a sum of money to the umpire as remuneration for his trouble and loss of time. This interpretation would be les» plausible than it is, were it not that, by a surprising coincidence, the ceremony described by Gaius as the imperative course of proceeding in a Ler/is Actio is substantially the same with one of the two subjects which the god Hephaestus is described by Homer as moulding into the First Com- partment of the Shield of Achilles. In the Homeric trial-scene, the dispute, as if expressly intended to bring out the characteristics of primitive society, is not about property, but about the composition for a homicide. One person asserts that he has paid it, the other that he has never received it. The point of detail, however, which stamps the picture as the counterpart of archaic Poman practice, is the reward designed for the judges. Two talents of gold lie in the middle, to he given to him who shall explain the grounds of decision most to the satisfaction of the audience. The magnitude of the sum, as compared with the trifling amount of the, Saeramentum, seems to me indicative of the difference between fluctuating usage and usage consoli- dated into law. The scene introduced by the poet as a striking and characteristic, but still only occasional, feature of city life in the heroic age, has stiffened, at the openuig of the history of civil process into the regular, ordinary formalities of a law- suit. It is natural, therefore, that in the Zegis Actio the remuneration of the judge should be reduced to a reasonable sum, and that, instead of being adjudged to one of a number of arbitrators by popular acclamation, it should be paid, as a matter of course, to the State which the Prsetor represents. But that the incidents described so vividly by Homer, and by Gaius with even more than the usual crudity of technical language, have substantially the same meaning, I cannot doubt ; and in confirmation of this view, it may be added, that many observers of the earliest judicial usages of modern Europe have remarked that the fines inflicted by courts on offenders were originally Sacramenta. The State did not take from the defendant a composition for any wrong supposed to be done to itself, but claimed a share in the compensation awarded to the plaintiff simply as the fair price of its time and trouble. Mr Kemble expressly assigns this character to the Anglo-Saxon bannum or frcdum." II. Dispute as to ownership of an immoveable. If a thing was such that it could not easily be brought or led into court — 3 Q 978 LAW OF PROCEDURE. if, for instance, it was a pillar, or a ilock of cattle of any kind — some part of it was taken ; and to that part, as if it were the whole that was present, the claim was made. Out of a flock, therefore, one sheep or one goat was led into court, or a tuft of wool was taken from it and brought into court. Of a ship or a pillar some part was broken off. In like manner, too, if it was a farm, or a house, or an inheritance that was in dispute, some part of it was taken and brought into court, and to that part, just as if it were the whole thing that was present, the claim was made. From a farm, for instance, a clod was taken ; from a house a tile ; and if the dispute was about an inheritance, then from it equally a thing or some part of a thing was taken. (G. 4, 1 7-) The idea of the sacramentum seems to be that the arbitration is taken up on the very spot where the quarrel arises. Hence either the judge must be taken to the land, or the land to the judge. The latter was done symbolically, and the process was technically called deductio. The form given by Gaius is fictitious, but in Cicero we have an account of a customary beginning {deductio quae moribus fit), where the parties go to the land in dispute, and there, in the presence of witnesses, make a mock combat. The Prsetor in that sketch does not accompany the disputants, but the witnesses go before him to testify to the initial steps. It is not improbable that there was a still earlier age, when the Prsetor himself accompanied the parties, and took part in the ceremony, which was regarded as the indispensable basis of his jurisdiction. III. In actions in personam. Upon this part Gaius is a blank, and we do not know in what manner the details of the sacramentum were adjusted to claims far debt or damage. Actio per judicis postulationem. The passage where Gaius describes this action is illegible, and the meaning of it is purely conjectural. When it was first introduced is unknown, but many infer from some ex- pressions in the XII Tables that it existed at that time. In questions of disputed boundaries, of partition of inheritance, or of any other joint property, it is difficult to see by what straining the form of the sacramentum could have been em- ployed. That proceeding led up to the question, " Am I right in saying that such and such is mine ? " But the partition of a joint-estate could not be thrown into the form of so simple a question. It is therefore not improbable that the action jaer judicis postulationem may have been introduced to meet these more complex cases of doubtful right, but in the absence of information by Gaius, the suggestion must remain as a mere guess. LEGIS ACTIONES. Condictio. 979 Condicere is to give formal notice {denuntiare) in early speech. But now by an abuse of terms we say that a condictio is an action against a person, in which the plaintiff alleges in his statement of claim that so-and-so ought to be given him. For no formal notice on that account is now given. (J. 4, 6,150 . . . When they ought to attend to have a judex appointed. For condicere in early speech is to give formal notice. (G. 4, 17 A.) This action was properly called a condictio j for the plaintiff gave formal notice to his opponent to be present to choose 3. judex on the thirtieth day. But now improperly we give the name of condictio to an action against a person in which our statement of claim is that so-and-so ought to be given us. For no formal notice on that account is now given. This legis actio was established by the /^:r 5z7za and the lex Calpurnia — by the lex Si/ia {or a. determinate sum of money, by the lex Caljiurnia for every determinate thing. Why this action should be wanted, when we can bring an action for what ought to be given us sacrainento or per judicis posttilationem, is much questioned. (G. 4, 18-20.) As to the lex Silia and the lex Calpurnia, see p. 62. The use of the Condictio was a puzzle to Gaius, and it has continued to perplex modern writers. Some authors think that the process by sacramentum took place before the Pontiflts, and that coitdictio was the first process allowed before a secular magistrate. Others suggest that it was intended to relieve the centumviri by relegating minor causes to a single judex ; but, in truth, guesses of this sort are of little value. The views of Sir Henry Maine will be found at p. 256 of " Early History of Institutions." See the remarks at p. 37 of this book. General Characteristics of the System of Legis Actiones. 1. The proceedings called legis actiones could be conducted only between Roman citizens ; aliens, unless by special favour (as sorae Latins), could neither sue nor be sued. 2. The parties could not appear in the formalities of the legis actiones by agents or procurators, but must themselves perform the ceremonies. This is another characteristic of the old jus civile, the refusal to allow one freeman to represent another in a legal transaction. In old times [as long as the legis actiones were used] no one could law- fully bring an action on another's account, except on behalf of the people or of freedom, or for apupillus. The lex Hostilia, besides, allowed an action for theft to be brought on account of persons that were among the enemy, or away in the service of the commonwealth, or that were in the tuiela of some person bringing the action. (J. 4, 10, pr. ; G. 4, 82.) 3. The system was marked by a rigorous pedantry, in which form was everything, and substantial justice nothing. 980 LAW OF PROCEDURE. 4. Again, once an action was commenced, the claim was extinguished. (G. 4, 108.) See postea, Litis Contestatio. B. The System of Formulae Transition from the Lmgis Actiones to Formulae. The defects of the legis actiones were serious. In the first place, only a Roman citizen could take part in them; aliens dwelling in Rome were wholly shut off. But even for citizens the system was objectionable. It required the actual presence of the parties ; no attorney or agent was admitted ; and the slightest error in the ceremonial vitiated the whole proceedings. As a mode of civil procedure, the legis actiones were cumbrous, troublesome and dangerous. It would be interesting to know the exact steps by which the Romans advanced from their first rude forms of procedure to tlie written formulae of the golden age of Roman jurisprudence. Already among the legis actiones themselves an advance may be observed. The condictio is distinctly preferable to the actio sacramenti. It is simpler, for it begii^s at once with reciprocal wagers, and it introduces costs, for the sums wagered went to the party that won. Whether the condictio was introduced, as the language of Gaius implies, by statute, or whether, as Sir Henry Maine states, it was only regulated by the leges Silia and Calpurnia, it was simpler, and better adapted to the ends of Civil Procedure, than the sacramentum. But the condictio, nevertheless, had all the faults of a legis actio — the faults of inelasticity and formalism; and it required the actual presence of the parties. The further development of Roman procedure was determined by a cause whose influence on other departments of the law has been already dwelt upon. The system oi formulae seems to have owed its origin to the necessity the Pr^tors were under of devising a method of civil trial for aliens (peregrini). In the legis actio, the pecuhar heritage of the Qui rites, an alien had no part. But the Romans were under an absolute necessity of providing a means of determining disputes in which an alien was a party. So numerous, indeed, appear to have been the occasions on which aliens were con- cerned in civil cases, that the new Prastor appointed B.C. 247 was specially named Frcetoj' Feregrinus. To an alien the forms of the ligis actio were inapplicable, but the Prsetor, in modifying the Roman procedure to adapt it to aliens, naturally followed FORMULAE. 98 1 the essential features of the Roman system. Thiis he did not undertake to hear and decide causes himself ; he referred them to arbitrators. But these were not the Eoman judioes — the senators of Rome ; they were any persons upon whom the parties agreed, generally three or five in number, and called recuperatores. Again, as in the legis actiones, the Prtetor elicited from the parties the question in controversy between them ; but instead of wrapping this up in the rigid forms of the /us civile, he was content to make out a plain written instruction to the arbitrators, informing them if they found the fact to be so-and- so, they should order the defendant to pay so-and-so. This was the essential character of the formula in factum ; it con- tained no positive assertion of any right in the plaintiff, but proceeded at once from a recital of the facts constituting the complaint, to give the arbitrators power to award damages. By a very simple and ingenious variation of the/ormw/a, it was possible to admit an agent or attorney either for the plaintiff or the defendant. Thus, " If Dio has received in deposit a golden vase of Agerius, and refuses to give it up, let the recuperatores order Dio to pay to Negidius the value of the vase." By in- troducing the name of the attorney Negidius, Agerius was relieved from all trouble in connection with the proceedings. In ascribing the origin of the written formula to the neces- sity of providing for aliens, there is an element of conjecture. The introduction of formulae took place so long before the very earliest of the legal writings that have come down to lis, that we cannot affirm with certainty a precise correspondence between the steps just indicated and the actual march of events. But the facts that we do know make it certain that the account cannot be far wrong. The next step in the history is the introduction of formulae in civil causes between citizens. That may have been the object of the lex Aebutia. At all events, there can be little temerity in hazarding the assertion that formulae were brought in for citizens first in tlie case of actiones in personam, and that a very considerable interval elapsed before they were allowed in actiones in rem. Whether this interval corresponds with the distance between the lew Aebutia and the lec/es Juliae is a matter of conjecture. But there is no doubt that the first formula admitted in causes between citizens was a sim- plification of the Condictio, which in turn may be viewed as a modification of the sacramentum. The cardinal difi'treuce 982 LAW OF PROCEDURE. between them was the omission of the reciprocal wagers that foi-med an indispensable preHminary to the condictio. The steps by which the formula was adapted to actions for property can be traced with certainty. In the sacramentum, it is worthy of remark, the question finally submitted for trial is not which of the claimants is owner of the thing in dispute, but which is right in his wager {sacramentum esse justum vel iiijustum). The question is of the truth of an assertion, not of the justice of a demand. The distinction may seem trivial, because practically the loss of the wager meant the loss of the ownership, but it is just trivial distinctions like these that are important in the history of law. The slightness of the circum- stance attests the reluctance, so to speak, of the State to inter- fere in private quarrels. It marks the stage where the State does not yet assert a claim to civil jurisdiction. From the sacramentum is but one step to trial by sponsio or wager. In a sponsio we proceed thus. We challenge the opposite party by a sponsio such as this, — " If the slave in dispute is mine ex jure Quiritium, do you undertake {spondes) to give me twenty-five sestertii?" Next we put forth 3i formula, in which the statement of claim is that the amount thus undertaken for ought to be given us ; and in this we win if we prove that the thing is ours. (G. 4, 93.) This sum named in the undertaking is not, however, exacted. It is indeed not penal, but a preliminary to the proceedings, and its whole use is to bring the case to trial. Hence, too, the man against whom the action is makes no stipulation in turn. Further, it is named the stipulation pro praede litis et vindiciarum (in room of a surety for the object and its interim enjoyment), because it has come into the place of the sureties that in old times, when the legis actio was used, were given by the possessor to the claimant /ro lite et vindiciis : that is, for the thing and its fruits. (G. 4, 94.) But if the action is before the centtimviri, we claim the amount of the undertaking, not by a formula, but by a legis actio, for we challenge the defendant sacramejjto. That undertaking is for 125 sestertii, because of the lex Creperia. (G. 4, 95.) This account by Gains is highly instructive. It is to be remarked that the sum of the wager is nominal ; and the wager itself is introduced simply to give jurisdiction. Now in the condictio the wager was for a substantial sum — one-third of the amount claimed (Gr. 4, 171) ; and in the case of Interdicts and the actio de pecunia constituta, the Praetor, while adopting the procedure of the condictio, made the sum of the wager sufficiently serious to act as a penalty. (G. 4, 168.) Again, the question referred to a judex is not the mere truth of an FORMULAE. 983 assertion, but whether the plaintiff has a right to twenty-five sestertii. It is a step in advance when the judex decides a question of legal right, although it is not the right in dispute. The recovery of property was accomplished by an action that in forna was in personam. In the third stage, the fiction of a wager is dropped, and the right of the plaintiff is submitted directly for the judgment of the judex. It is at this point for the first time we reach a true actio in rem. An action for a thing is twofold ; for it can be brought either by a for- mula petitoria or by a sponsio. If, then, it is brought by 3^ formula petitoria, the stipulation called judicatum solvi (that what \}a^ judex awards shall be paid) finds a place ; but if by a sponsio., that which is called pro praede litis et vindiciarum. A petitoria formula is one in which the plaintiff alleges in his statement of claim {intentio) that the thing is his. (G. 4, 91-92.) Examples of the petitoria formula %vill presently be given ; at this point it is enough to mark its general character. There would seem to be little doubt that the three stages marked by the terms sacramenfum, sponsio, and petitaria formula followed each other in historical order. In stating the procedure that could be followed in suing for an inheritance, Cicero mentions the legis actio, and as an alternative the sponsio with its special sureties {pro praede litis et ■vindiciarum), but he does not mention the petitoria fo}'mula. (Cic. in Verr. 2, 1, 45.) In the time of Gains, however, an inheritance could be recovered by the formula petitoria. (D. 5, 3, 3 ; D. 5, 3, 10.) Formulae appear to have been applied to actions for inheritance later than the petitoria formula to the recovery of property, for, of this latter, instances are given by Cicero. (A.) The Formula in an Actio. I. Proceedings to obtain a, formula. It was a peculiarity of the Roman summons, during the Republic, that the plaintiff was not required to state his demand until he had the defendant in the presence of the Prsetor. The first proceeding before the Prsetor was to announce to defendant the particular /o?'m((Za that bethought suitable to his case. This was called editio actionis. (D. 2, 13, 1, pr.) This statement did not conclusively bind the plaintiff, who could vary his claim up to the time that he got his formula. (C. 2, 1, 3.) The formal request presented to the Prsetor was called postulatio actionis. (D. 3, 1, 1, 2.) At tliis stage the only defence open to the defendant was such an objection as did not rest on a denial of any of the facts alleged by the plaintiff. If the dispute between the parties involved a mere question of law, and not of fact, there was no necessity to refer the case to a judex; and the Pr^tor, having stated the law, could give effect to it by the exercise of his 984 LAW OF PROCEDURE. authority. But if the dispute involved a controversy as to any facts as well as law, the Prsetor gave a judex, and specified in writing the question he was to try, and the nature of the judgment he could pronounce. When the formula was given, the proceedings before the Prsetor terminated. It was this point in the proceedings that was called the litis contestatio. Litis contestatio. — In the course of a litigation, however short, events may alter the position of the parties with reference to the subject-matter of the lawsuit. Thus, if the question is one of possession, the defendant may lose the possession before judgment is given. Again, the time of prescription may expire. It may thus happen that according to the facts as they existed when defendant was first summoned, a judgment ought to be given for the plaintiff; but according to the facts as they are found to exist at the time when judgment is given, the judg- ment ought to be for the defendant. From which time should the judgment speak 1 The fair rule is that a plaintiff should not be prejudiced by what may occur pending the course of the lawsuit. For the purpose of judgment, the facts upon which the decision proceeds should be the facts as they existed at the time when the lawsuit began. But at what moment may a lawsuit be said to begin? Naturally, in a mature system of civil procedure, it is the issue of the summons. The summons is the first step and com- mencement of the suit. But a Roman action was not regarded as beginning with the summons. It began, speaking of the period under review, only when the formula or written reference was made out by the Prtetor. The commencement of the action — the litis contestatio — was thus the last act that occurred in jure. (D. 5, 1, 39, pr ; D. 5, 1, 28, 4.) This rule, apparently so unfair and capricious, is characteristic of the mode in which the Roman civil procedure grew up. At first the State gave a complainant no help in bringing a defendant into court. It sanctioned the use of force by complainants, but it did nothing more. At this stage the beginning of an action could not be taken as earlier than the first, which would often also be the last appearance of the parties before the Prsetor. But that is not all. A careful examination of the proceedings in the sacramentum explains why the last and not the first appearance of the parties before the Pr^tor should have been taken as the real commencement of the action. It was only after the stakes were laid that the Prsetor decided to which 01 the combatants FORMULAE. 985 he ■would assign the possession of the disputed property, pending the result of the trial. That being done, the way was clear for the appointment of a judex to determine which of the parties had falsely claimed the ownership. It is the appointment of a judex to try the question that forms the turning-point. Up to this time there are simply two private individuals quarrelling ; now the State intervenes, commands peace, and provides for the settlement of the dispute. There is no longer a private quarrel ; there is a lawsuit. Witnesses are conveyed before the Prjetor, who go before the referee and testify, in case of dispute, to the exact terms of the reference. Hence the name contesiari litem. The meaning of the litis contestatio thus becomes intelligible for the period of the legis actiones. But it may be urged that under the subsequent system of written references {formulae) the summons ought to have been taken as the commencement of the action. Logically, no doubt it was so ; but the transi- tion from the earlier system was so gradual, and indeed to some extent the two sj'stems went on so long side by side, that we need not be sixrprised that under the system of formulae it was still the last act in jure, the drawing up of the written reference to arbitration {formula) that was deemed the starting- point of the litigation. Adjotjrnmexts. — Another significant indication of the volun- tary origin of Roman jurisdiction is that originally, if a com- plaint was not finished at one sitting, the PrtBtor, it seems, had no power to compel the reappearance of the defendant. The plaintiff had no resource but again to summon and di-ag back the defendant. The first assertion of authority by the Praetor indicates the feebleness of the State. He does not assume the right to call back the defendant, but he makes him promise to come back, so that if he fails, he breaks rather a free promise of his own than the command of the Prastor. When the opposing party has been summoned to court, unless the business is ended that day he must enter into recognisances {vadiinonia) ; that is, promise that he shall present himself on a fixed day. (G. 4, 184.) Recognisances are entered into in some cases simply — that is, without giving sureties ; in some cases with sureties ; in some cases with an oath ; sometimes with the further addition oi recuperatorcs — that is, that if he does not present himself he shall forthwith be condemned by the recuperatores in the amount of the recognisance. This is diligently pointed out case by case in the Prastor's edict. (G. 4, 185.) In the case of an actio juduati or actio depensi, the recognisance 986 LAW OF PROCEDURE. required will be for the amount thereof. But if it is on any other ground, the recognisance to be promised will be for the amount the plaintiff, after being sworn not to trump up a case {non calumniae causa), demands f provided, however, it is not to be more than half the value, nor more than one hundred thousand sestertii. If, therefore, the case is for a hundred thousand sestertii, and is not an action for money awarded by a judex or actually paid out, the recognisance to be given will be for not more than fifty thousand sestertii. (G. 4, 186.) For meaning of actio depensi, see p. 570. The persons, further, that without the Praetor's leave we cannot with impunity summon to court, we cannot bring under obligation to us in recognisances against their will, unless we go to the Prsetor and he allows it. (G. 4, 187.) II. Formulae in factum conceptae. The formula in jus concepta contained an express assertion of the duty of the defendant {i.e., the right of plaintiff); the formula in factum concepta merely stated the facts that justified an award, and specified, either generally or with limitations, the amount of the award. TYiose. formulae in which a right is stated we call in jus conceptae (framed so as to state a right). Such are those in which our statement of claim is that something is ours ex jure Quiritium, or ought to be given us, or that the defendant ought to settle with us for loss he has inflicted as a thief In these the statement of claim {intetitio) belongs to \\\^jus civile. (G. 4, 45.) All others we call in factum conceptae (framed so as to state a fact) ; in them, that is, no such statement of claim is framed, but at the beginning of the fortniilae the act done {factuiri) is named, and the words are added by which the judex is given power to condemn or to acquit. Such is the formula a patron uses against a freedman that summons him to court contrary to the Prsetor's edict. It runs thus : " Let there be recuper- atores. If it appears that such and such a patron by such and such a freed- man of such and such a patron, contrary to the Praetor's edict, was sum- moned to court, then rectiperatores condemn that freedman to pay that patron ten thousand sestertii. If it does not appear, acquit him." All the other formulae, too, that have been put forth under the title concerning summoning to court, are in factum conceptae; for instance, against him that when summoned to court has neither come nor given a vindcxj and again, against him that has carried off a man summoned to court ; and countless oi^ex formulae in force of that kind are put forth in the Prsetor's hst {album). (G. 4, 46.) In some cases the Praetor puts forth formulae that state either a right or a fact ; as in the case of deposit and of free loan. The foYra&v formula is framed thus : " Let there be a judex. Whereas Aulus Agerius deposited with Numerius Negidius a silver table, now in dispute, whatever it appears on that account Numerius Negidius ought in good faith to give or do for Aulus Agerius, that, judex condemn Numerius Negidius to give or do for Aulus Agerius, unless he gives up the table. If it does not so appear FORMULAE. 987 acquit him." This is a formula framed to state a right. But the formula framed as follows : " Let there be a judex: If it appears that Aulus Agerius deposited with Numerius Negidius a silver table, and that by the fraud (dolo malo) of Numerius Negidius it has not been given back to Aulus Agerius, whatever turns out to be the value of the article, that sum of m.on.&y, judex, condemn Numerius Negidius to pay to Aulus Agerius. If it does not so appear, acquit him," is framed to state a fact. Like these are \}!\^ formulae in the case of a free loan {commodaiutn). (G. 4, 47.) The form " unless he gives up " was said to constitute an arbitraria actio. Some actions besides we call arbilrariae, depending, that is, on the discretion {arbitriuni) of the judge. In them, unless the defendant makes amends to the plaintiff at the judge's discretion — gives up, for instance, the thing, or produces it, or pays, or surrenders the slave in a case of wrong- doing (ex noxali causa) — he must be condemned. Actions of that kind are found both for a thing and against a person. For a thing — as the Pub- liciana, the Serviana about a tenant-farmer's property, and the quasi- Serviana, called also hypothecaria (the mortgage action). Against a person — as in the actions for what has been done under the influence of fear or fraud ; or, again, in the action to claim what has been promised at a fixed place. The action for production also depends on the judge's discretion. In these and all other like actions the judge is allowed to estimate as is fair and right, according to the nature of each thing for which the action is brought, how amends ought to be made to the plaintiff. (J. 4, 6, 31.) See pp. 263, 447, 585. III. Formulae in jus conceptae. 1. In case of aetiones in personam.^ The chief parts of formulae are these : — the demonsiratio, the intentio, the adjudicaiio, the condemnaiio. (G. 4, 39.) (i.) The demonsiratio is that part of \.\\e formula which is inserted to point out the thing in dispute ; this part for instance : " Whereas Aulus Agerius sold Numerius Negidius a slave ; " and this again, " Whereas Aulus Agerius with Numerius Negidius deposited a slave." (G. 4, 40.) Quod Aula Arjerio a, Nunierio Ncijidw pugno mala percussa est. (Mos. et Kom. Leguni CoUat. 2, 6, 4.) Judex esto : Quod Aldus Agerius Numcrio Nerjidio hominem vendidit, Si paret Numerium Negidiwm Aula Agerio sestertium x milia dare oporfere, Judex Numerium Negidium Aula Agerio sestertium x milia condemna ; Si non paret, absolve. Ji:dex edo : Quod Aulus Agerius apud Numerium Negidium hominem deposuit, Quidquid paret Numerium Negidium Aulo Agerio darefacere oportere Judex Numerium Negidium Aulo Agerio condemnato ; Si non paret, absolve. 988 LAW OF PROCEDURE. Quod Numerius Negidius sibilum inmisit Aula Agerio infamandi causa. (Mos. et Eom. Legum Collat. 2, 6, 5.) These examples show the degree of precision required in the statement. Thus it -was not necessary to specify which had struck the blow. It was the duty of the Praetor (cognilio praetoris) to fix the statement with reasonable certainty. (Mos. et Eom. Legum Collat. 2, 6, 3.) (2.) The iiiientio (statement of claim) is the part ai \}s\& forimda in which the plaintiff defines what he wants ; this part for instance, — " If it appears that Numerius Negidius ought to give Aulus Agerius ten thousand sestertii; " or again this, " Whatever it appears Numerius Negidius ought to give or do for Aulus Agerius." (G. 4, 41.) (3.) The condemnatio (condemnation) is the part of 'Ca^ formula in which ih& judex '\'s, allowed power to acquit or to condemn ; this part for instance, " Judex, condemn Numerius Negidius to pay Aulus Agerius ten thousand sestertii. If it does not so appear, acquit him ; '' or again this, — " Judex, condemn Numerius Negidius to pay Aulus Agerius ten thousand sestertii only. If it does not so appear, acquit him ;'' or again this, — " Jtidex, con- demn Numerius Negidius to pay Aulus Agerius,'' and so on, provided there be not added " ten thousand sestertii only." (G. 4, 43.) The condemnation that is put in ^^ formula is either for a determinate sum of money or for an indeterminate sum. It is for a determinate sum in x!a&forjmila by which we demand a determinate sum ; for in that the lowest part runs thus: '•^ Judex, condemn Numerius Negidius to pay Aulus Agerius ten thousand sestertii. If it does not so appear, acquit him." A condemnation for an indeterminate sum of money has a twofold meaning. There is one that is expressly limited, cu7n taxatione as it is commonly called, when we demand something indeterminate. There the lowest part oi iht formula runs thus : " In that, judex, condemn Numerius Negidius to pay Aulus Agerius ten thousand sestertii only. If it does not so appear, acquit him.'' The opposing one is unlimited, as when we demand anything that is ours from the man that possesses it — that is, if we bring an action for a thing or for its production ; for there it runs thus : " Whatever turns out to be the value of the article, that sum oi raoney,jtidex, condemn Numerius Negidius to pay Aulus Agerius. If it does not so appear, acquit him." (G. 4, 49-5 1 •) The judex in the matter, if he condemns the defendant, must condemn him in a determinate sum, although no determinate sum is put in the con- demnation. He ought further to take heed, if a determinate sum is put, that he condemn the defendant in a sum neither greater nor less by one sesterce ; for otherwise he makes himself liable as if the cause were his own {litem suam facit) ; and again, if a limit {taxatio) is put, that he does not condemn the defendant in a sum greater than the Ihnit ; for if he does, in like manner again he makes himself liable as if the cause were his own. To condemn him in a less sum, he is, however, allowed ; and if the condemnation is indeterminate, he can condemn him in any sum he pleases. (G. 4, 52.) (4.) The adjudicatio is the part oi \\\q formula in which iCa^ judex is allowed to adjudge the thing to one of the parties to the action. If, for instance, the action is one between co-heirs familiae erciscundae (for sharing the inherit- ance), or between partners communi dividundo (for dividing the joint pro- perty), or between neighbours fi?iium regundorum (for determining the FORMULAE. 989 bounds), then this part of 'Cs\e. formula runs thus : "As much as ought to be adjudged, yz,rrt5?;i,-, adjudge to Titius or Seius." (G. 4, 42.) All those parts are not, however, found at once in every formula, but some are found, and some are not found. Certainly the statement of claim is sometimes found alone, as in the formulae preliminary to proceedings {praejiidiciales) ; that, for instance, in v^'hich the question is whether a man is a freedman, or how much a dowry is, and many others. But the demon- stratio, adjudicatio, and condemnatio are never found alone, for the demo7i- stratto does not take effect without a statement of claim or a condemnation. A condemnation or an adjudicatio, again, without a statement of claim, has no force ; therefore they are never found alone. (G. 4, 44.) Actions preliminary to proceedings i^praejudiciales) seem to be for a thing {in rem). Such are the actions in which the question is, whether a man is free or a freedman, or about recognising offspring as one's own. Of them, generally speaking, one only has a statutory cause ; that, namely, in which the question is whether a man is free ; all the others are substantially due to the Prffitor's jurisdiction. (J. 4, 6, 13.) 2. In the case of actiones in rein. In an action in rem a formula has only an intentio and condemnatio. The demonstratio is a statement with a certain amount of exactness, specifying the investitive fact upon which the plaintiff relies in maintaining the duty — dare facere oportere. Without the demonstratio, the intentio would scarcely convey any distinct idea, and certainly would fail to tie the plaintiff to any particular grievance. But in a suit where propei'ty is in ques- tion, the designation of the land or other property is sufiicient to enable the defendant to meet the claim. Moreover, the question is not how did the plaintiff acquire the property in question, but whether it is his. Or this again,— If it appears that the slave Stichus belongs to Aulus Agerius ex jure Quiritiutn. (G. 4, 41.)' IV. Equitable Defences — Exceptiones, Praescripliones, Replicationes. A special inconvenience of the legis actiones, viewed as a system of pleading, was, that the question in dispute must be referred in the narrowest and strictest form without any regard to equitable considerations. But when the formula was intro- ' Si paret, hominem {Stichum) ex jure Quiritium Auli Agerii esse. I/. Octavius judex esto ; Si paret fundum Capenatem quo de agitur, ex jure Quiritium P. Servilii esse, neque is fundus arbitrio suo P. Servilio restitutm: (Cio. in Verr. 2, 2, 12.) Quanti ea res est, tantam pecimiam Numerium Negidium Pullio ServUio condemnato ; si non paret, absolve. (G. 4 (41), 52.) 990 LAW OF PROCEDURE. duced, the Praetor could impose conditions on a plaintiff, not warranted by the strict letter of the law, but required by justice. 1. Nature, objects, and form of Equitable Defences. Next let us look narrowly to exceptiones (equitable defences). They have been provided for the sake of persons that have to defend themselves against an action, for it often happens that a man is liable by the jus civile, and yet it is unfair that he should be condemned by the judex. (J. 4> I3j P""- ; G. 4, 115-116.) If, for instance, I stipulate for a sum of money from you on the ground that I am about to pay it over to you as a loan, and I do not pay it over, it is certain the money can be claimed from you ; for you are bound to give it, since you are liable under the stipulation. Yet it is unfair that you should be condemned on that account. It is held, therefore, that you ought to defend yourself by the exceptio doU mali (on the ground of fraud). If, again, I agree with you not to demand from you what you owe me, none the less I can at strict law demand it, alleging that you ought to give it ; for an obli- gation is not taken away by an agreement between the parties. But it is held that if I demand it I ought to be repelled by the exceptio pacti conventi (based on an agreement). (G. 4, 116.) In those actions, too, that are not against a person, such defences have a place ; when, for instance, you compel me by fear or induce me by fraud to give you some res mancipi by a formal conveyance. If, then, you demand the thing from me, an exceptio is given me, by which, if I prove you acted so as to terrify or deceive me, you are repelled. (G. 4, 117.) Some exceptiones the Praetor has in his edict set forth ; others he grants to suit the case after inquiry. All these either owe their existence to statutes, or what take the place of statutes, or have been handed down as based on the jurisdiction of the Prsetor. (G. 4, 118.) Every exceptio is so framed as to run counter to what the defendant affirms. If, for instance, the defendant affirms that the plaintiff is doing something fraudulent — demanding money, for instance, that he never paid over — the £.r«//zo is framed thus : " If in that matter nothing has been done or is being done by fraud on the part of Aulus Agerius.'' If, again, it is alleged that the money is being demanded contrary to agreement, the exceptio is framed thus : " If between Aulus Agerius and Numerius Negidius there has been no agreement that the money should not be demanded." In all other cases, in fine, it is usually framed in like manner. The reason is that every exceptio^ though it is a defence, is inserted in ^^ formula so as to make the condemnation conditional. Its effect, in other words, is, that the judex is to condemn him against whom the action is brought, only if the plaintiff did nothing fraudulent in the matter in dispute ; and again, that the judex is not to condemn him unless no agreement was come to that the money should not be demanded. (G. 4, 119.) Division of Equitable Pleas — Peremptory and Dilatory. Exceptiones are said to be either peremptory or dilatory. They are peremptory if they take effect for ever and cannot be evaded. Instances of this are the defences that something was done through fear or fraud, or contrary to a statute or Senatiis Cojisuliwn; or again, that the case has been FORMULAE. 99 1 decided or brought before a judex; or again, that an agreement has been come to providing that the money shall in no case be demanded. They are dilatory, again, if they do harm for a time— if, for instance, the agree- ment come to provides (say) that the money shall not be demanded within five years, for at the end of that time the exceptio has no place. A like excepHo is that the claim is being divided {litis dividuae), or that some matter remains over {ret residuae). If, for instance, a man demands part of a thing, and within the same Prsetor's term of office the rest, he is set aside : this exceptio is called litis dividuae. If, again, a man that had several actions against the same defendant proceeded with some, but put off others that they might come before other judges, and then within the same Prater's term of office proceeded with those he put off, he is set aside by this exceptio, ca}leA. ret residuae. (G. 4, 120-122.) Dilatory exceptio?tes may be due to considerations not only of time but of person. Instances are those relating to a cognitorj as when a man that by the edict cannot make such an appointment brings an action through one, or when a man that has the right appoints a cognitor that cannot undertake the office. If an exceptio cognitoria can be brought against him, then, if he is such that he cannot lawfully appoint a cognitor, he can bring the action himself ; if, again, the cognitor cannot lawfully undertake the office, he has unrestrained power to bring the action by another cognitor or by himself in person, and in this way as well as in that evade the exceptio. But if he disregard it, and bring the action through a cognitor, he loses his case. (G. 4, 124.) When failure to use a plea is fatal. A man against whom a dilatory exceptio can be brought, must observe to put off his action. If not, and if it is actually used to bar his action, he loses his case. For after the time at which, if the matter had not been taken up, he could evade it, he has no longer remaining any power to bring an action when the matter has once been brought to trial and cut off by the exceptio. (G. 4, 123.) If a peremptory exceptio has by mistake not been used by the defendant, he is restored to his rights as unimpaired {restitutio in integrum'), in order that he may still make use of it. But if it is a dilatory exceptio that he has not used, whether he can be so restored is questioned. (G. 4, 125.) Replications. Sometimes it happens that an exceptio that at first sight seems good in law would unfairly harm the plaintiff. When this is so, another addition is needed to aid the plaintiff. It is called replicatio, because by it the force of the exceptio is unfolded and undone. If, for instance, I agree with you not to demand from you the money you owe me, and then afterwards we make an agreement to the contrary, that is, that I may demand it ; and if then I bring an action against you, and you take this exception to it, that you ought to be condemned to pay me only if there has been no agreement that I should not demand the money, — then I am wronged by the exceptio pacti conventij for none the less this remains true, even although we afterwards made an agreement to the contrary. But it is unfair that I should be shut out by the exceptio; a replicatio therefore arising out of the later agreement is given me [in this way, — " If there was no after agreement that the money might be demanded"]. (J. 4, 14, pr. ; G. 4, 126.) 992 LAW OF PROCEDURE. Again, if a banker pursues a man for the price of a thing sold by auction, and has thrown in his way the excepiio that the buyer is to be condemned only if the thing he bought has been delivered to him, that is an excepiio good in law. But if it was stated beforehand at the auction that the thing would not be delivered to the buyer before he paid the price, the banker may help himself by such a repUcatio as this,— " Or if it was stated beforehand that the thing would not be delivered to the buyer unless the buyer first paid the price." (G. 4, 126 a.) Sometimes, also, it happens that the replicaiio in turn, although at first sight good in law, would unfairly harm the defendant. When this is so, an addition is needed to aid the plaintiff. It is called diiplicatio (doubling). (J. 4, 14, I ; G. 4, 127.) If it in turn at first sight seems good in law, but for some reason unfairly harms the plaintiff, again an addition on the other side is needed to aid the plaintiff It is called triplicatio (triphng). (J. 4, 14, 2 ; G. 4, 128.) The use of all these additions, sometimes going even further than we have said, was brought in by the variety of business affairs. (G. 4, 129.) Prae&criptioneB. Let us see also about the praescripllones that have been received on behalf of the plaintiff (G. 4, 130.) That they are so called from the fact that they were written first lj>rae- sa-ibuntitr) before \.\\(i. formulae is more than manifest. (G. 4, 132.) Often, indeed, under one and the same obligation, something ought to be furnished us now, something in future; as when we have stipulated for a fixed sum of money to be paid every year or every month. For when some years or months are ended, the money for this time ought to be furnished ; but for future years, too, the obligation is certainly understood to be con- tracted, though as yet it is not to be performed. If, then, we wish to claim what ought to be furnished, and to bring it to trial, but to leave the future performance of the obligation in uncertainty, it is necessary to bring our action with this praescripiio, — " Let that only come into trial whose day of payment is now come." But if not, and if we proceed without this clause, by the formula, namely, by which we demand an indeterminate sum, in which the statement of claim is framed in these words, — " Whatever it appears Numerius Negidius ought to give or do for Aulus Agerius," — then the whole obligation — that is, the future one as well — we thus bring to triah Further, since the joining issue (lilis contesiatio) extinguishes it, no action remains over for us, if we should afterwards wish to bring an action for the further performance. Again, if, for instance, we are bringing an action arising out of a purchase {ex empto), that a farm should be given us by a formal convey- ance, we ought to use such a praescriptio as this, — " Let the matter to be tried be the mancipation of the farm." The result is, that afterwards, if we wish unhindered possession [vacua possessio) of it to be given us, we can bring an action for its delivery either ex stipulatu or ex empto. But if we use no sack praescriptio, then the obligation for all such rights by the use of the indeterminate action, "Whatever on that account Numerius Negidius ought to give or do for Aulus Agerius,'' is extinguished on joining issue ; so that afterwards, if we wish to bring an action for delivery of the unhindered possession, no action remains over for us. (G. 4, 131-131 a, as restored.) FORMULAE. 993 In our day, as we have pointed out above, they all proceed from the plaintiff. In old times, however, some were put in as answers on behalf of the defendant. Such was the ;praescriptio, — " Let the matter go to trial if it does not prejudge the inheritance." This has now been transformed into an exceptio, and finds a place when the claimant of an inheritance by another kind of procedure would prejudge the inheritance ; as, for instance, by demanding the things singly ; for it would be unfair to prejudge it. (G. 4, 1 33-) The statement of claim in the formula determines the person to whom' what is due ought to be given. To the master certainly ought to be given what a slave stipulates for. But the praescriptio raises a question of fact, and it ought to be true according to its natural meaning. All we have said of slaves we shall understand to be said also of the rest of the persons subjected to our power. (G. 4, 134-135.) We must note further, that if we are bringing an action against the man himself that promised us something indeterminate, the formula is so put forth for us as to have a praescriptio inserted in it in place of a demon- slra/io, thus : — "Let there be d^jticiex: Whereas Aulus Agerius stipulated ■for an indeterminate amount from Numerius Negidius, with respect to that only whose day of payment is now come, whatever on that account Numerius Negidius ought to give or do for Aulus Agerius," and so on. But if the action is against a security or a surety {sponsor aut fidejussor), it is usual to have a praescriptio ; — as to the position of the security, thus : " Let that alone be tried respecting which Aulus Agerius stipulated in regard to Lucius Titius for an indeterminate amount, on account of which Numerius Negidius is security, whose day of payment is now come;" — as to the position of the surety — " Let that alone be tried for which Numerius Negidius pledged his honour {fide sua esse jussit) to an indeterminate amount on behalf of Lucius Titius, whose day of payment is now come." Next the formtila is thrown in. (G. 4, 136-137.) V. Set-offi (jDeductio, aompensatio.') The exceptio was directly related to the canae of action, and contained a statement of some fact that made it inequitable that the plaintiff should succeed. Set-off rests upon the less urgent ground of convenience. If A. owes 20 aurei to B., and B. owes 18 aurei to A., it is most convenient and fair that B. should not be allowed to recover 20 awen, from A., but only the balance after deducting his own debt. But there is no in- justice in refusing to allow a set-off, because the defendant has the right to proceed by cross-action against the plaintiff. Ac- cordingly, the principle of set-off was not fully recognised until the reign of Marcus Aurelius. Gains gives us the law as it stood prior to that time. As to compensatio under Justinian, see pp. 1017, 1018. 1. Set-off in proceedings honae fidei. Set-offs when brought up often make a man obtain less than was due to ^ R 994 LAW OF PROCEDURK. him. Now in proceedings bonaefidei (equitable), free power is allowed the judex to fix the value that ought to be given up to the plaintiff on the ground of what is fair and right. In this, then, there is included the power to take an account of what it appears the plaintiff ought to furnish in turn on the same ground, and to condemn the defendant to pay the balance. (G. 4, 61, as restored.) Actions are in some cases bonaefidei, in others stricti juris (of strict law). Those bonaejidei are these, — from purchase, from sale, from letting on hire, from taking on hire, from managing business, from mandate, from deposit ]j. he is tied down finally by the condemnation, &n&\he judex cannot go beyond it. The Praetor, too, gives no restoration to rights on- that side ; he comes to the aid of defendants more readily than of plaintifis. We speak, of course, with the exception of men under twenty-five ; when men of that age malie a slip in any matter, the PrKtor comes to- their aid.. (G.- 4,- 57.) 3. Variance in the Dem&nstratio: If in the demonstratio too much or too little is put down, nothing is brought on for trial, and so- the matter remains untouched. This is the meaning of the saying that by a false demonstratio no action is lost. There are some, however, that think too Uttle may rightly be embraced in it ; that if a man perchance bought Stichus and Eros, he is to be held right if he draws up his demotistratio thus : — " Whereas I bought of you the slave FORMULAE. 997 Eros," and that then, if he pleases, he can bring an action for Stichus in another /or;«a/a of sale. The reason is that it is true, they say, that seeing he bought two, he bought each singly. This was assuredly Labeo's view. But if he that bought one brings an action for two, his demonstratio is false. The same is true in the case of other actions also, as free loan and deposit. (G. 4, 58-59.) We find in certain writers that in an action of deposit, and in fine, in all the other actions in which condemnation brands a man with ignominy (infamia), that he that puts more than he ought in his demonstratio loses his suit. A case is, if a man that has deposited one thing alleges in his demonstratio that he has deposited two or more ; or if a man that has been struck on the face with the fist alleges in his demonstratio, in an actio injuriarum, that some other part of his body was struck. Whether we ought to believe this to be the truer view, we shall seek out with great care. N.ow there are two formzilae for deposit, one framed to state a right, and one to state a fact, as we have remarked above. In t\\^ formula, that is framed to stat« a right, only at the beginning the matter in dispute is stated in the deinonstratio, then it is named, and next the contention at law is brought in by these words, " Whatever it appears he ought on that account to give or do for me." In t\iefor7nula framed to state a fact, at once in the beginning, as if it were a statement of claim, the matter in dispute is named in these words, " If it appears that such and such a man deposited with such and such another such and such a thing." Assuredly, therefore, w,e ought not to doubt that if a man in Ha^formjila framed to state a fact names more things than he deposited, he will lose his suit, because he is held to have put down too much in his statement of claim. (G. 4, 60.) (b.) Proceddee in Interdicts, An examination of the cases where the remedy was by inter- dictum and not by actio} shows that nearly all interdicts were remedies for rights that could be vindicated ia no other way, while the interdicts TJti Possideti$ and Utrubi were the remedies for Praetorian ownership, and Quorum Bonorum for Prietorian inheritance. In procedure by interdict there was the same distinction between jus and judicium that existed in the case of the actio properly so called. It was not a rapid summary process in the hands of the Pr£etor, but in every respect imitated the ordi- nary procedure. It remains to look narrowly into interdicts. In certain cases, then, the ' The following interdicts may be referred to : — de libera homine exhiimdo, p. 186 ; de liheris exhibendis et ducendis, p. 221 ; de vi et vi a/rmata, p. 250 ; Quod vi aut clam, p. 252 ; de glande legenda, p. 254 ; de itinere aciuqae private, p. 424 ; de rebus sacris, p. 317 ; for praedial servitudes, pp. 423-424 ; de superficie, p. 430 ; Salvianum, and Quasi Salvianum, p. 448 ; Uti Possidetis and Utruii, p. 365 sq. ; Quorum Bonorum, p. 886. 998 LAW OF PROCEDURE. PrKtor or Proconsul interposes his supreme authority {principaliter) to put an end to disputes. This he does chiefly when, the parties are contending for possession or quasi-possession. \n- short, he either orders something to be done, or forbids it to be done. The formulae of the words which he frames and uses in the matter are called decrees, or interdicts t (J- 4i • 5; P""- > G. 4, 138-139- ) Eor the meaniiig of principaliter, see p. 41'. Decrees {decretd) are the Prtetor's commands that something be done ;. as, for instance, when he enjoins something to be produced or given- up. Interdicts are prohibitions from doiiig somethitig ; as, for instance, when he enjoins no violence to be used to a possessor untainted in title, or forbids something to be done in a sacfed place. Hence, all interdicts are called either for restitution, for production, or for prohibition. (G. 4, 140.) It is not the case, however, that when he has ordered something to be done, or forbidden something to be done, the business is at once carried through. The parties go before a jicdex or recuperatores, and there, by putting forth formulae, the question is raised whether anything has been done in defiance of the Praetor's edict, or whether what he ordered' to be done has not been done. Sometimes the action involves a penalty,, some- times not ; the former, if carried on by a sponsio; the latter, as when an arbiter is demanded. Under interdicts of prohibition, indeed, the usual procedure always is by sponsio ; under interdicts for restitution or produc- tion the procedure is sometimes by a sponsio, sometimes by the formtda called arbitraria (discretionary). (G. 4,- 141.) Of the order and issue of interdicts in old times it is idle in our day to speak, for wherever the law is laid down in the exercise of special authority {extra ordiitem), as is the case with all proceedings now-a-days, there is no need to grant an interdict, but the case is judged without interdicts exactly as if a utilis actio had been granted by reason of an interdict. (J. 4, 15, 8.) In considering this topic the reader will find it an advantage to recur to the pass- ages ah'eady given on the subject of Possession, pp.. 357-359. I. Procedure in Simple Interdicts; Simple interdicts are those iii' which from' the Very com- mencement of the proceedings there is a plaintiff and a de- fendant. They are- prohibitory, exhibitory, orrestitutory. 1. Simple Prohibitory Interdict. In this casethe procedure in the time of Gains was solely by sponsio or wager. (G. 4, 141.)- 2. Exhibitory and Restitutory Simple Interdicts.' Gaiiis informs us that in this case- there was a choice of pro- cedure, either by way of sponsio or by an arhiivaria formula. The latter was viewed as an indulgence, and was,, therefore, undoubtedly posterior in origin to the sponsio: But he that wishes to demand an arbiter ought to observe to make the demand at once before going out of court — that is, before departing from the Prsetor ; for to those that are late in their demand no favour will be shown. INTERDICTS. 999 If, therefore, he does not demand an arbiter, but goes out of court in silence, the case is carried on to its issue at the risk (of a penalty). (G. 4, 164-165.) (1.) Trial by Wager (sponsio). For the plaintiff challenges his opponent by a sponsio to show that he has not failed, contrary to the PrEetor's edict, to produce or give up the thing. He again answers his opponent's sponsio by a stipulation in turn {resHpulatio). The plaintiff next sets forth 2u formula, of the sponsio to his opponent, and he in return that of the stipulation to the plaintiff. But the plaintiff throws in at the end oi' 'Cat. for^nula for the sponsio another proceeding also for giving up the thing or producing it, so that if he: wins in the sponsio, unless the thing is produced orgiven up to'him. . . . (Gl 4; 165.) (2.) Direct Formula {arbitr aria formula). After setting forth the kinds of interdicts, we must next look- narrowly into their order and issue. Let us begin with the simple interdictsi If then an interdict for restitution or production is granted — as, for instance, that possession is to be restored to him that has been cast out by force, or that the freedman is to be produced whose patron wishes to give him notice of services he is to render — there is sometimes no risk to be run in carrying the case through to its issue ; sometimes there is.' For if he demands'' an arbiter, the defendant receives Ct\&/ormula called arbitraria (discretionary). It is so called because if in the discretion of Ca.% judex anything ought to be given up or produced, then he produces or gives it up without a penalty, and is thus acquitted. But if he neither gives it up nor produces it, he is condemned to pay what it is worth. The plaintiff also incurs no penalty for proceeding against one that need not either produce or give up anything ; unless, indeed, he is met by a judiciicm calumnias claiming one- tenth part of the value of the cause. Proculus certainly held that such a proceeding ought to be forbidden to one that has demanded an arbiter, as if by this very fact he is to-be held to confess that he ought to give up or pro- duce the property. But the law in use by us is different ; and rightly so. For a man asks for an arbiter, not as an admission, but as the more modest form of litigation. (G. 4, 161-163.) From what Gaius tells us, tliere is little difEculty in per- ceiving that the procedure in interdicts was' exactly similar to the procedure in actions. In- the time of Justiuiau, we are told that there was no substantial difference between interdicts and actions. These facts suggest the question, was there ever in Roman law any difference between interdictum and actio except in name? There appears to be little evidence.if any, for the view so long maintained, that interdicts were a kind of interim injunctions or summary process. Indeed, in the case of the interdicts uti possidetis and utrubi, it will presently appear, the procedure, so- far from being summary, was exceedingly com- plicated. The Prsetor, besides modifying, limiting and expanding the lOOO LAW OF PROCEDURE, actions that descended from the jus civile, created entirely new remedies for rights that the jus civile did not recognise. When he introduced a new right in rem, he was necessarily compelled to give a remedy, and that remedy was called Interdictum, or in some cases Decrelum. When he introduced new rights in personam he called his remedy an action ; as the actio de pecunia comtUuta., actio commodati, etc This assertion will be foimd to be almost perfectly exact ; but there is an exception to it that is worthy of notice. The Actio Serviana was entirely due to the Pr«etor, and it was called an actio, although it was to vindicate a right in rem. It contrasted with the Interdictum Salvianum, which was a purely possessory remedy. The exception might be explained in various ways; but it ie sufficient to remark that th-e -a-ctio Serviana was not introduced until a period when the word interdictum wa« beginning to loose its exclusiveness. There appears to be no instance of a remedy for a right in per- sonam being called Interdicts In creating new remedies the Praetor naturally followed the procedure of the civil law ; but it is a characteristic of the spirit that prompted his interference, that he followed the least cumbrous and inconvenient of th-e legis ■aciiones. He imitated the condictio, not the sacranienium ; for there can be no doubt that in the beginning every interdict was by sponsio, and that the wager was real, not fictitious. So far was this process from being simple and summary, that we are told that recourse to interdicts was full of technical dangers, (Frontiuus, 2, 44.) The form of the pleading seems rather curious. By an interdict the Prsetor professed to order a defendant to restore a thing of which he had obtained possession by violence ; the defendant affirmed that he had restored it ; in point of fact, he had not, and the question really sent for trial before the jiidea; or recuper- atores was whether he weis under any obligation to do so. (Cic. pro. Caec., S.) At first all interdicts began with a sponsio, and the result was to impose a penalty upon the unsuccessful litigant. In the case of the simple, prohibitory interdicts, such as those concern- ing rights in public or sacred things, the defendant was sued for committing a past wrong; and it was not considered an object to get rid of the penalty. The old form of trial was therefore kept up in the time of Gains without change. But when the object of the interdict was the restitution or produc- tion of property, the plaintiff ought to be satisfied if he recovered INTERDICTS. lOOI the property without insisting upon a penalty. Hence before the time of Gaius, an alternative mode of trial was allowed : the parties were allowed to omit the sponsio, and raise the question at issue directly in a formula. After the change made by Diocletian, the old system seems to have fallen into disuse, and viiles actiones of the usual sort were granted for interdicts. (J. 4, 15, 8.) This change may be compared with the history of the action in ran. An action for property descending from the jus civile passed through three stages — the sacrameittu)7i,ihe sponsio, and the pet itoria formula. The actions given by the Pr«tor omitted the first stage, but followed the older system, first with the sponsio, aijd afterwards by the arbitraria formula. The distinction between inlerdictnm and actio appears, there- fore, to have only a historical significance. The words do not indicate any real difference in procedure, they testify merely to a historical fact ; namely, that certain rights in rem were created by the Prsetor. Sometimes the word petitio is opposed to actio. Petitio is a civil, interdictnm a Pr^torian, action ; and if the words be so used, actio would be restricted to actions in personam. II. Procedure in Double Interdicts. In simple interdicts, there are from the outset a plaintiff and a defendant ; in double interdicts there are two claimants, neither of whom at the beginning is plaintiff, and neither defendant. Examples of double interdicts are the uti possidetis and utruhi. In these the Prsetor imitates the procedure in the actio sacram.eovti. In that oldest form of procedure the first step is a sham fight ; the Praetor calls upon the parties to make peace, and after a preliminary inquiry orders one of them to have interim possession, and thereby drives the other into the position of plaintiff. Unfortunately, the portion of the MS. of Gaius that describes the procedure in double interdicts is imperfect and partly illegible ; but enough can be made out clearly to show that the Prastor, in controvei'sies regarding the right of possession, most closely, and indeed slavishly, followed the remarkable proceedings of the most ancient form of real actions. The inferences to be drawn from this parallelism have been elsewhere stated., and need not here be repeated (pp. 373-4.) But if an interdict is demanded, after it is granted the Prsetor's first care is, that while the suit is going on they shall refrain from force. In the pos- session 01 one or other oi' them, therefore, the thing is settled for the time I002 LAW OF PROCEDURE. by putting up its fruits meanwhile to auction ; provided always that he gives security to his opponent by a stipulation for these. Its power is this : if the/udex afterwards should come to decide against him, he must make good the fruits meantime, and the price for which he bought them. For between opposing parties that vie with one another as to the price, when the con- tention is in the bidding for the fruits meantime, no doubt because it is for the interest of each to be interim possessor, the Prastor sells possession for the time to the higher bidder. Afterwards the one challenges the other by the sponsio, " If, in defiance of the PrKtor's edict, you use force to me while in possession,'' and both mutually make an answering stipulation to meet the sponsio. Or when the two stipulations have been joined, one sponsio is made between them, and again one answering stipulation to meet it. This is easier, and therefore more usual. (G, 4, i65, as-restored.) Next, when Xhe formulae of all the stipulations and answering stipulations that have been made have been put forth by both, the judex before whom the proceedings in the matter are taking place inquires into this, which the Prator embraced in his interdict ; which of them, namely, was in possession of the farm or the house at the time the interdict was granted, neither by force, nor by stealth, nor by sufferance. After \S\& judex'hs.'i searched out that, and has decided, say, in my favour, he condemns my opponent in the amounts of the sponsio, and of the answering stipulation that I made with him ; and in accordance with this acquits me from the sponsio and answer- ing stipulation that were made with me. More than this, if the possession rests with my opponent because he won in biddrhg for the enjoyment mean- time, unless he gives up possession to me, he is condemned in the proceeding called Cascelliamim or secutoriiim (the sequel). (G.-4, 166 A^) Therefore he that won in bidding for the fruits meantime, if he doesnot prove that the possession belongs to him, is ordered to pay the amount cl the sponsio of the answering stipulation, and of the bidding for the fruits meantime by way of a penalty, and besides td give up possession ; and more than this, he gives back the fruits that he has gathered in the meantime. For the amount of the bidding for the fruits meantime, is not. the price of them, but is paid by way of a penalty, because one tried to keep back during all this time the possession that was another'Sj and to obtain the power to enjoy it. (G. 4, 167.) But if he that was beaten in the bidding for the fruits meantime does not prove that the possession belongs to him, he Owes by way of penalty only the amount of the sponsio2Xi& of the answering stipulation. (G. 4, 168.) We must note, however, that it is free to him that has been beaten in bidding for the fruits meantime to pass by the stipulation for the fruits, and just as by the proceeding called Cascelliamim or secuioriicm he tries to recover possession, so to bring an action for the fruits, and for the bidding for the fruits meantime. For this a special proceeding is employed, called fruduarium (for the fruits), on account of which the plaintiff receives security that what has been adjudged will be paid. This proceeding, too, is called secutorium, because it follows on winning the spousio j but it is not likewise called Cascelliamim. (G. 4, i6g.) But because some when the interdict was granted refused to take the rest of the steps under the interdict, and therefore the matter could not be got clear, the Prjetor has prepared certain interdicts called secondary, because INTERDICTS. IOO3 they are granted only in the second place. The object and effect of these interdicts is that the party failing to comply with the requirements of the interdict procedure, — as by declining to offer (the conventional) violence, or to bid for the fruits, or to give security for the fructus licitatio, or to be a party to the sponsiones, or makes default in defending the judicia sponsionuin^ — must, if he is in possession, surjender possession to the other party, or if he is not in possession, abstain from molesting the possessor. Therefore, although on the merits he might have succeeded in the interdict Uti pos- sidetis had he. not been in default, by this secondary interdict the possession is transferred to his adversary. (G. 4, 170.) This paragraph is given in accordance with Studemund's revision. It thus appears that if one of the parties declined to taKe the necessary steps to bring the issue of the right of possession to a decision, his opponent could apply for a S€cunda7'ium inter- dictum,, wherehy judgment for possession was granted in- his favour. (c.) Special- Provisions for terminating Lawsuits. I. Admissions. Confessio in jure. A voluntary admission of the plaintiff's claim by the defend- ant made it unnecessary to resort to a judex, and had, although at one time there seemed to be some doubt on the point, the same effect as a judgmeilt by & judex. (D. 46, 2, 6, 2 ; D. 42, 1,56; C. 7, 16, 24; C. 4', 13, 5.) The plaintiff' is enabled at once to proceed' to execution. (0. l-,- 53, 9 ; Paul. Sent. 2, A confessio must be an admission of the right of the plaintiff", as well as of the facts supporting the claim. (D. 42, 2, 5.) If the defendant admitted the cause of action, but disputed the amount claimed as damages, the case must go before a judex;, not, however, for trial, but solely to estimate damages.^ (D. 42, 2, 8 ; D. 2, 14, 40, 1 ; D. 9, 2, 25, 2.) In several actions it was the interest of the defendant to make- this admission, to save himself from the penalty of double damages. Thus a defendant sued under the lex Aquilia for damage to property is exposed to a penalty of double the amount of loss, unless he admits the wrong done before the Preetor. (.1. 4, 6, 19 ; J. 4, 6, 26.) So also in actio judicati, actio depensi, actio legaiorum per damnationem rel'ictofum. (G. 4, 171.) II. Interrogations. Interr'ogatio injure. It might often happen that a plaintiff had suffered a wrong, ' Confessio pro judicalv hahetur. (D. 42, 2, ].) 2 Formula reconstructed by Savigny — Quod NuTfierius Negidius injure confessus est fundum Corndianum Aulo Ar/crio se dare oporterc ; Quanti is fundus est, eum condcmna. I004 LAW OF PROCEDURE. while it might be tmcertain which of two or more persons was answerable to him. From this arose the practice of trymg preliminary issues (praejudicia) before going into the merits ot the case. "From the strictness of the rules regarding variance between the formula and the evidence before the judex, and even when no danger was to be apprehended from this source, it was highly convenient that questions relating, for example, to the personal status of the defendant should be put before the Prsetor. Henoe the practice of putting interrogations at this stage of the proceedings, an-d founding upon them a special modification of the formula. The answer to the interrogatory was an admission {eonfosdo), and it was embodied in the formula. Hence the so-called actio mterrogatoria. Savigny has reconstructed suck ,a formula applicable to a question of inheritance.''^ 'The nature of tte topics wtere interrogatories might be pnt may be gathered from tbe following 'examples : — Is the defendant heir to plaintiff's ddbtor ? and if so, what is his share of the inheritance ! (D. 11, 1, 1, pr. ; D. 11, i, 5 ; D. 11, 1, 5, 3.) Is -the defendant owner of the slave that has done the injury complained of ? (D. 11, 1, 8 ; D. \X, 1, 5.J Is the defendant owner of the aifimal that has done the mischief {pau;pei-ies] ? (D. 11, 1,7.) Has the defendant any pecnlium of the slave whose contract haa been broken ? (D. 11, 1, 9, 8.) Is the defendant the owner of the "house or structure that threatens to fall ; and if so, whether wholly or in part* (D. 11, 1, 10.) Is the defendant in possession of ,the land in dispute ? and if not of the whole, of how much? (D. 11, 1, 20, 1.) Is -the defendant a minor, or under -the age of puberty? . 12, .2, 13, 3.) 8. That there was no peculium. (D. 12, 2, 26, 1.) Second— PROCEEDINGS 11^ JVBICIO. I. Liability of Judex. It remains to look narrowly into the duty of the judex. The very first thing he ought to observe is this, not to judge otherwise than is laid dpwn by the statutes, by the copstitutions, and by custom. (J. 4, 17, pr.) If z. judex makes himself liable in a case by a wrong decision {litem suam fecerit), it is not strictly an obligation ex mahjicio that he seems to incur. But it is not an obligation arising from contract,and there is understood to be wrong-doing on his part, although it may be only through want of judg- ment. He seems, therefore, to be liable quasi ex malejicio, and .will have to bear such penalty in the matter as shall seem fair to the sensjg of duty of the judex that tries him- .(J- 4, 5, pr.) A judex, if required by the formula either to give plaintiff a definite sum or to acquit defendant, who gives plaintiff a different sum, mikes the cause his own, and must make good the loss. (G. 4, 52.) In like manner, if the reference permits a judea to condemn defendant up to a IN JUDICIO. 1007 certain amount, and not beyond, if he gives more, the defendant may reclaim the excess from the judex. {G. 4, 52.) A fortiuri, th.& judex was liable for damages if he acted in bad faith [dolo malo), and gave judgment through favour, animosity, or bribery. (D. 5, 1, 16, 1.) II. Whether a case was referred to a judex, arbiter, recupera- tores, or centummri, the same procedure seems to have been adopted. Prior to the use of formulae the refereuce was oral, and had to be attested by witnesses, whence the term litis contestatio. From Gaius we have a fragment that explains some of the terms used in connection with the proceedings before the judex while yet the reference was oral. . . . They came to receive a judex. Afterwards, when they came back, 3. judex was given them not before the thirtieth day. This was done through the lex Pinariaj for before that statute a. judex was given at once. This we have understood from the foregoing, that if the action was for less than 1000 asses, they used to contend with a sacramenttim of 50 asses, not of 500. After a judex had been given them, however, they gave formal notice to one another to come before him the next day but one {comperendin74S dies). Then when they came before him, before they fully plead their case in his hearing, they used to set the matter forth to him shortly, and as if by way of index. This was called cattsae conjectio (throwing the case together), as being the gathering together {coaciid), so to speak, of their case into short compass. (G. 4, 1 5.) The means by which the presence of the parties before a judex was secured, was anciently the vadimoniwm, of which mention has already been made. III. Procedure under the Forwrnla system. When the parties appeared before the judex or other referee, the tirst step was a brief statement qf the nature of the ques- tion referred, followed, if there were two pleaders, by a longer harangue stating the facts of the case. There does not seem to have been any .rigid order observed in the examination of witnesses or the production qf written documents. The wit- nesses were examined on oath. (Pro Rose. 15.) If the referee were not satisfied with the evidence produced, he could reqiiire a statement from either party on oath. (D. 12, 2, 31 ; C. 4, 1, 3.) Also it seems that either party, if his evidence were deficient, could put the other ;to his oath, as he could do before the Prsetor. (D. 22, 3, 25, 3.) After the evidence was con- cluded, the parties or their pleaders summed up their case, which was then ripe for judgment. If the referee had not made up his mind, he could adjourn the case, and have it argued again before him {litem ampliare). I008 LAW OF PROCEDURE. Provision was made in the XII Tables for adjoTimments. " If the judex or either of the litigants is hindered by serious disease let the day of trial be put ofl"." ^ In later times other reasons were admitted as ground of adjournment, either for the pro- duction of evidence, or even when one of the litigants had suffered a bereavement, as by the death of a child, parent, wife, etc. (D. 5, 1, 3.) The referee could, if he thought fit, take the opinion of the magistrate on a point of law, but not on a question of fact (D. 5, 1, 79, 1), such as the amount of damages that ought to be given. (D. 50, 17, 24.) A referee could not give judgment except in the presence of both parties. (C. 7, 43, 7.) In the earliest times their presence was secured by giving sureties (vades) ; so that non-attendance, unless excused, exposed a party to the loss of the penal sum promised. But this method was imperfect ;• it failed to bring about a termination of the litigation. Hence in later times a more direct and summary process was adopted through the intervention of the court. When a plaintiff failed to appear before the judex, under the old system he forfeited his sureties {vadimonium desertvm) ; and under the later procedure he was said to be in eremodicio. The defendant on appearing obtained first one summons,, and then another (D. 5, 1, 68), and after a delay of not less than ten days, a third and final (D. 5, 1, 69) order {peremptwium edictum}, stating that, notwithstanding the absence of the plaintiff, the cause would be heard and decided. (!>. 5, 1,. 70 ; D. 5, 1^ 71.) If the judge thought fit, the preliminary summonses could be dispensed with, and a peremptory order issued at once. (D. 5, 1, 72.) It did not follow that judgment should be pronounced against the absent plaintiff; if his ease were good, the judge could decide in his favour. (D. 5, 1, 73, pr.) If a person that has applied for and obtained a peremptory edict, should himself fail to appear (in person or by his agents), the proceedings are stopped, but may be begun again de novo. (D. 5, 1, 72, 2".) A defendant wilfully neglecting to appear after a peremptory edict is said to be contumax. (D. 42, 1, 53, 1.) Jadgment could be pronounced in bis absence, without appeal. (D. 42, 1, 54.) As in the case of the plaintiff, the peremptory edict or ' Si judex olterve ex liiirjatoribus mmbo sontico impcdiatur; judicii eUes di^usus eslo. JN JUDICJO. 1009 summons was generally the third, but might be the first and only one. (Paul, Sent. 5, 5 A, 7.) A referee was not bound to decide in a case if the evidence left his mind in a state of doubt ; upon taking an oath that neither party had made out their case to his satisfaction {sihi noil liquere), he was discharged (Aul. Gell. 14, 2) ; and the parties were obliged to have recourse to another judex if they were dissatisfied. Another case might arise, where after the litis contestatio the defendant discharged the claim of the plaintiff. Could the judex take notice of this ? A question remains that we must look into, whether, if before the matter is adjudged on, the defendant, after receiving the appointment of a judex, satisfies the plaintiff, it agrees with the duty of the judex to acquit him, or rather to condemn him, because at the time he received the appointment of a judex he was in such case that he ought to be condemned. Our teachers think he ought to acquit him, and that it makes no difference what the nature of the proceeding was. This is the common saying that Sabinus and Cassias held all proceedings might lead to an acquittal {absolutorid). But the authorities of the opposing school As regards pro- ceedings bonae fidei, however, they hold the same opinion, because no doubt in these proceedings the duty of the /Kt/^^f is unrestrained. The same opinion also they hold with regard to actions for a thing, because there, too, it falls within the very duty of Si judex that the defendant, if he gives up the thing, ought to be acquitted. Of the same nature, too, are some actions against a person (G. 4, 1 14.) It remains to call attention to this ; that if, before the matter is adjudged on, the defendant satisfies the plaintiff, it agrees with the duty of the judex to acquit him, although at the time he received the appointment of a judex he was in such case that he ought to be condemned. This is the saying once common, that all proceedings may lead to an acquittal. (J. 4, 12, 2.) The judgment ought to be pronounced in the regular manner, on pain of being null and void. (C. 7, 45, 4.) Both sides must have enjoyed an opportunity of being heard. (C. 7, 57, 5.) The judgment must be pronounced orally to the parties, and could not be delivered in writing. (C. 7, 44, 1.) The usual custom was, that after the parties were heard the judices retired, and dictated their judgment to a clerk, and afterwards came out and read it to the parties (breviculum). (C. 7, 44, 2.) At first judgments must be iu the Latin language (D. 42, 1, 48), but Arcadius and Honorius permitted them to be given in Greek. (C. 7, 45, 12.) If there is more than one referee, all must be present when judgment is pronounced (D, 42, 1, 37), but a majority of votes was sufficient to support the judgment, (D. 42, 1, 39.) If the 38 lOIO LAW OF PROCEDURE. referees are equally divided, judgment is for the defendant in all cases, except a suit in which Hberty is involved, in vs^hich case the judgment is to be in favour of freedom (D. 42, 1, 38) ; and a suit to upset a will on the ground of undutifulness, in which case the will is to be supported. (D. 5, 2, 10.) Lapse of suit for non-prosecution. All proceedings either exist by statutory right {judicia legitimd), or fall within the power {imperiuni) (of a magistrate). (G. 4, 103.) Statutory proceedings are those that in the city of Rome, or within the first milestone from it, are received between Roman citizens and before one judex. They under the lex Julia judiciaria, unless adjudged on within a year and six months, die out. This is the common saying, that under the lex Julia a lawsuit dies in a year and six months. (G. 4, 104.) Actions that fall within the power of a magistrate are those brought before recuperatores, and that are received before one judex, when an alien comes in either as judex or as a party to the action. In the same case are all those that are received beyond the first milestone from the city of Rome, whether between Roman citizens or between aliens. These proceedings are said to fall within a magistrate's power, because they take effect so long as he that enjoined them is in power. (G. 4, 105.) There can, however, be a proceeding under a statute that is not yet statutory ; and on the contrary, not under a statute, and yet statutory {legitinium jtidicium'). If, for instance, under the lex Aquilia or Ollinia or Furia an action is brought in the provinces, the proceeding will fall within the power of a magistrate. The rule of law is the same if at Rome we bring an action before the recuperatores or before a single judex when an alien comes in. On the contrary, if on grounds on which an action is granted us by the Praetor's edict, a proceeding is received at Rome before one judex, to which all the parties are Roman citizens, it is statutory. (G. 4, 109.) Lex OUinia 13 probably a mistake of a copyist. IV. New Trials. The decision of a referee did not in itself conclusively draw after it an order for execution, even at a time when no appeal could be brought. A plaintiff that had got judgment in his favour was obliged to go back to the Prsetor with the judg- ment in his hand, and to ask his authority for proceeding further upon it. An opportunity was thus afforded a defendant of calling in question the justice of the decision on various grounds, and thus it might happen that the Praetor refused to give any effect to an erroneous judgment. In like manner, if a defendant succeeded before a referee, the plaintiff might in certain cases treat the decision as null and void, and proceed once again to the Praetor to get a new formula and anothev judex. INJUDICIO. lOII The judex ought to take care that in any case, as far as he finds it possible, he is to give his decision for a determinate sum of money or thing, even if the action before him is brought for an amount that is indeterminate. (J. 4, 6, 32-) A judgment that the defendant should pay the sum demanded with usual interest (not specifying at what rate) is null and void (C. 7, 46, 3 ; D. 42, 1, 59, 2), unless where the rate of interest was a recognised quantity. (C. 7, 46, 1.) Grounds of nullity. 1. When the judgment has been pronounced, owing to an error of law appearing on the face of the judgment it is wholly- void ; if the error of law does not appear on the face of the judgment, it cannot be upset except in the regular course of appeal. (D. 49, 1, 19 ; C. 1, 21, 3 ; C. 2, 10, 3 ; C. 7, 52, 2.) A person is required to be a tutor, and he pleads as an excuse that he is beyond the age of compulsory service. The referee, however, held that no excuse was admis- sible. His decision is null and void without appeal. {Quum de jure constitutionis, non de jure litigatoris, jyronunciatur.) If, however, the referee admitted age as a ground of excuse, but held that the tutor had not proved himself beyond the proper age, his judgment could be upset only by regular appeal. (D. 49, 8, 1, 2.) In a testamentary suit, a referee supported a will on the ground that a boy under fourteen could make a will. The decision is null. (C. 7, 64, 2.) A judge condemned a defendant in the amount claimed, with a sum in addition that represented compound interest. But compound interest is illegal. Nevertheless, as the judgment did not bear this fact in its face, it was valid, unless upset on appeal. (D. 42, 1, 27.) 2. If a judgment has been given on the strength of false documents, and the falsity has been proved in criminal pro- ceedings, it is held void. (C. 7, 58, 3.) The same result followed, according to a rescript of Hadrian, when judg- ment was obtained by a conspiracy of bribed witnesses. (D. 42", 1, 33.) But a new trial could not be had merely on the ground of the discovery of new written evidence (C. 7, 52, 4), unless the documents had been abstracted by the adversary (C. 2, 4, 19), or the Exchequer (Fiscus) was the plaintiff. (D. 42, 1, 35 ; D. 49, 14, 2, 8.) 3. A judgment was null and void if it exceeded the terms of the reference (D. 50, 17, 170 ; C. 7, 48, 1), unless with the con- sent of the litigants. (D. 5, 1, 74, 1.) 4. A judgment is null and void if the referee has accepted a bribe. (C. 7, 64, 7.) 5. A judgment is void, as we have seen, if not pronounced in open court in proper form (C. 7, 45, 6), or if either party is absent excusably, as by illness, or absence on State service (D. 5, 1, 75 ; D. 42, 1, 60; C. 7, 43, 4), or if the defendant is dead (D. 49, 8, 2, pr.), or insane. (D. 42, 1, 9.) IOI2 LAW OF PROCEDURE. Second Epoch— EXTRAORDINARY PROCEDURE. (A.) Proceedings from Appearance till Judgment. The proceedings from appearance of parties to judgment after the great change made by Diocletian, abolishing the distinction between jus and judicium, may be con- sidered under the following heads : — I. Transition from the Ordo Judiciorum. II. Outline of Proceedings. III. The Litis Contestatio. IV. Pleading and Defences {exceptiones). V. Set-off. VI. Variance. I. Transition from the Ordo Judiciorum. In a great many proceedings of an executive character, the Pr^tor was compelled to hear evidence, and pronounce a decision without any reference to a judex. Thus in proceedings for the execution of judgments, or to enforce the rules of procedure, the Prsetor acted withontjudices. But in such cases the object of the Praetor was not to determine a dispute between litigants, but to give effect to judgments, or to secure the working of the machin- ery of the law. There were cases, however, under the Republic, where the Praetor sat as judge, and heard evidence, with a view to determine the rights of private individuals. Thus, by a restitutio in integrum he could make void a bargain made by a minor under twenty-five, when any advantage had been taken of him, or he had lost by the transaction. In like manner, he interfered even for persons beyond twenty-five, when in consequence of the fraud, violence of one party, or the innocent error, excusable absence, old age, or minima capitis deminutio of the other, a person had been unjustly deprived of a legal right, or unjustly saddled w^ith a legal duty {restitutio in integrum est redintegrandae rei vel causae actio.) (Paul, Sent. 1, 7, 2.)^ The Prsetor in giving this relief (which he did only when no other remedy by actio or exceptio was available, D. 4, 4, 16, pr.) heard the parties and the necessary evidence without sending the case to a judex. {Causa cognita.) (Paul, Sent. 1, 7, 3.) For examples see Index, Restitutio in integrum. ' Nam sub hoc titulo [de in integrum restitutionibus] plurif ariam Preetor hominibus vel lapsis vel circumscriptis subvenit ; sive metu, sive calliditate, sive aetata, sive ab- sentia inoiderunt in captionem (D. 4, 1, 1), sive per status mutationem, aut justum errorem (D. 4, 1, 2) : item inquit Praetor, si qua alia mihi justa causa videbitur, in integrum restituam. (D. 4, 6, 26, 9.) EXTRAORDINARY PROCEDURE. Id 3 Again, in a certain number of controversies regarding land (of which Frontinus enumerates fifteen), about twelve were tried with the aid of a professional class (Surveyors), whose opinion was binding on the judge. (Mensores. Agrimensores.) But it was not until the empire that any serious inroad was made on the system of reference to a judex. Almost the first days of the Empire witnessed the birth and rapid growth of fideicommissa. Claudius added two special Praetors for this important branch of litigation. It is worth observing that the jurisdiction was confined entirely to the magistrates, and that no reference of a cause of that nature was made to a judex. (G. 2, 278 ; J. 2, 23, 1.) In contradistinction from the ordin- ary procedure by reference to a judex, these proceedings were termed Cognitiones Extraordinariae or Persecutiones (as opposed to Actio, Peiitio, Interdictum). (D. 50, 16, 178, 2 ; G. 2, 278.) This' example was followed in the new branches of law created under the Empire. Thus the recovery of honoraria was allowed only by the new process, while by the action of man- date no fee could be recovered. (D. 50, 13, 1, 1.) The same procedure was prescribed for complaints by slaves against their masters (p. 186), and for the obligations imposed on children and parents of mutual support. (D. 25, 3, 5.) Constantino (a.D. 342) relieved suitors from the technical snares of the formula. Nevertheless, the old formal demand of an action (impetratio actionis) continued to be kept up until the reign (A.D. 428) of Theodosius II. (C. 2, 58, 1). Its place was taken by the written summons (libellus conventionis), which in a far better way informed the defendant of the nature of the complaint against him. Finally, in A.D. 294, Diocletian abolished the judicia, and enacted that all causes should be heard entirely by the magistrates. II. Outline of Proceedings. When the parties came before the judge, the plaintiff was bound to state his complaint and demand, and the defendant could urge those defences that the law allowed him. The parties were not bound to follow the distinctions of the old formulae, but in substance the discussion that took place to elicit the exact nature of the dispute between them differed but little from the lines of the formulae. There was, however, no written formula ; the discussion was oral, and the substance of it recorded by the clerks of court (officiales). (C. 7, 62, 32, 2.) After the preliminary discussion, wliich ended in a IOI4 LAW OF PROCEDURE. Bettlement of the issue to be tried (C. Th. 2, 18, 1), witnesses were produced and speeches made as formerly injudicio. III. The Litis Contestatio. Under the formula system the litis contestatio was the last act in jure before the parties proceeded to the judex ; but when the distinction between jus and judicium no longer existed, at what point is the old litis contestatio supposed to exist ? It would appear that even before Diocletian, the litis contestatio, in the case of the extraordinary proceedure, was rather at the beginning of the pleadings than at a point that would coincide with the issue of the formula. (C. 3, 9, 1.) From a constitution of Justinian we learn that it was after the statement of the plaintiff and counter-statement of the defendant. (0. 3, 1, 14, 1.) This scarcely, if at all, differs from the period of the litis contestatio under the formula system. What is interesting, and is clearly proved, is, that the service of the summons was not the litis contestatio, or legal commencement of the suit. Justinian enacted that after service of the summons twenty days should be allowed for the appearance of defendant to make a litis contestatio (Nov. 53, 3, 2), and that plaintiff must proceed to the same point within two months. (Nov. 96, 1.) Thus, even at the last stage of development, the Roman law of procedure bears indelible traces of its origin. The suit does not begin with the summons, even now that the summons is issued by order of a judge, but at a point in the proceedings that to the eye of reason is arbitrary, although it is explained by the history of Roman law. Under the legis actio sacramenti, the procedure began with a simulated reference to arbitration. One man asserts a claim against another, who denies the claim ; and both agree that whatever the claim is it shall be given up in consideration of the reference to arbitration. The whole meaning and essence of such a reference is, that the parties agree to the extinction of the original claim. But for that, a reference would be the beginning, instead of the end, of a controversy. No man would consent to go to arbitration, assuming he was not compelled to do so, if, in the event of the reference in any manner failing to give satisfaction, the original dispute were to be revived. At all events, the Roman law starts with the rule, that a reference to arbitration absolutely extinguishes the original cause of action. The case was different in old times with the leg-is aciiones. Once an action had been brought on any matter, no further action upon it could be EXTRAORDINARY PROCEDURE. Id 5 brought at strict law. And exceptiones in tliose times were not in use at all as they are now. (G. 4, 108.) 1. The first and principal effect, then, of the litis contestatio, is to extinguish the cause of action. An obligation may be taken away, further, by joining issue in an action (litis contestatio), provided the action is statutory. The obligation in chief is then dissolved, and the defendant begins to be liable by reason of join- ing issue. If he is condemned, then joining issue is at an end ; and he begins to be liable by reason of the judgment. This is what the old writers mean when they say that the debtor is bound, before issue is joined to give, after issue is joined to be condemned, after condemnation to do what the judgment ordains. (G. 3, 180.) Butifitisbya statutory "proceeding {te°;'itimum Judicium) that an action is brought against a person by t^e formula that has its statement of claim under the jus civile, afterwards no action can be brought at strict law on the same matter, and therefore the exceptio is superfluous. But if the action is for a thing, or is in factum, none the less an action can afterwards be brought, and therefore the exceptio is needed that the case has been judged or brought before 2. judex. (G. 4, 107.) In the case of an actio in personam with a formula in jus concepta, the action was to enforce an ohligation, and the grant of a formula operated as a novatio of the obliga- tion. On the other hand, in an actio in rem or an actio in personam with ti, formula in factum concepta, no obligation was alleged and no novatio took place. Hence it is that if I demand a debt by a statutory proceeding, I cannot afterwards bring an action for that very right ; for the statement of claim that the thing ought to be given to me is useless, because after issue is joined it no longer ought to be given me. It is not so if I bring an action that falls within a magistrate's power, for then the obligation lasts none the less, and I can therefore bring an action afterwards by that very right ; but I ought to be set aside by the exceptio that the case has been judged (rei judicatae) or brought before a /z/^^x {rei in jtidicium deductae). Which proceedings are statutory, and which fall within a magistrate's power, we will tell in the next book of our Commentaries. (G. 3, 181.) For this distinction, see p. 1010. If an action that falls within a magistrate's power is carried through, whether it is for a thing, or against a person, or by 2. formula framed to state a fact, or by one that has its statement of claim framed to state a right, afterwards none the less at strict law an action on the same matter can be brought. An exceptio, therefore, is necessary, that the case has been judged or brought before s. judex. (G. 4, 106.) 2. Judgment is to be given with reference to the state of facts at the time of the litis contestatio. Thus, although usucapio ran till judgment, "virtually it was stopped at the litis contestatio (p. 268). 3. Performance by defendant of demand after the litis con- testatio did not always entitle him to absolution from the judge. (G. 4, 114.) IOl6 LAW OF PROCEDURE. Thus the sale of a slave liable for a delict after the litis contestaiio, even to the plaintiff, did not avoid condemnation. (D. 9, 4, 37.) 4. A penal or other action that cannot be brought against the heirs of a wrongdoer, after the litis contestatio lies against the heirs. The reason seems to be that, inasmuch as the original claim no longer exists, but has been given up, in con- sideration of a promise to obey the judgment, the claim is really- transformed into a species of debt, and all heirs are liable for the debts of their predecessors. (D. 44, 7, 58 ; D. 46, 2, 29 ; D. 50, 17, 67.) In like manner, a popularis actio, after the litis contestatio, becomes, as it were, a private claim of the plaintiff; and if he dies, the action may be continued by his heirs. 5. If an action were brought concerning property, it became a ns litigiosa, and incapable of alienation to a person cognisant of the fact. If, again, you knowingly buy a farm about which an action is pending from the man that is not in possession of it, and demand it from the man that is, you are met by the exceptio, a.TiA. so in any case set aside. (G. 4, 117.) IV. Pleading under the new system. Although t\ie. formula was superseded, yet the language and the ideas it introduced remained. So also Jiistinian continues to speak oiexceptio, although equitable pleas do not require to be specially pleaded. In the older system, if a defendant went before the judex without an exceptio in the formula, he could not plead his equitable defence ; but now all actions are on the footing of the honae fidei actions, in which no defence need be pleaded until the parties are before the judex. An exceptio now means nothing more than a ground of defence to an action. In like manner, if a debtor takes the oath tendered him by his creditor that he ought to give nothing, he still remains bound. But since it is unfair that a question of perjury should be raised, he defends himself by the exceptio that he has taken the oath. In actions for a thing excepiio?tes are equally necessary. If, for instance, the possessor takes the oath tendered by the claimant that the thing is his own, and yet none the less the claimant brings a vindicaiio for the same thing, an exceptio is in place ; for although it may be true, as he alleges in his statement of claim, that the thing is his, yet it is unfair that the possessor should be condemned. If, again, an action of either kind is brought against you, none the less for that the right of action lasts ; and therefore, in strict law, an action can be brought against you afterwards for the same thing. But you ought to have the help of the exceftio rei judicatae (that the case has been judged already). (J. 4, 13, 4-5.) EXTRAORDINARY PROCEDURE. IOI7 Perpetual and peremptOT-y exceptinnes are those that always bar the way against those that take proceedings and put an end to what is in dispute. Such is the defence, that the act was done through fear or fraud ; or, again, that an agreement was come to providing that the money should in no case be demanded. Temporary and dilatory excep- tiones are those that for a time do harm, and grant a delay for a time ; as, for instance, that an agreement was come to providing that no action could be brought within a fixed time, say five years. For at the end of the time the plaintiff is not hindered from following up his property. Those, therefore, that when they wish to bring an action within the time find an exceptio thrown in their way, whether based on agreement or some other like one, ought to put off the action, and to bring another after the time is come ; indeed, this is the very reason why these excepiiones are called dilatory. But if not, and if they brought the action within the tune, and had it barred by the exceptio, then in old times they could not obtain anything in that pro- ceeding because of the exceptio, and could bring no action after the time was come ; because they rashly brought the matter to judgment, and so used it up, and in this wa;y they often lost their case, In our day, however, we do not wish this to go on so strictly, and resolve that he that dares to bring a suit before the time of the agreement or the obligation shall be sub- ject to the constitution of Zeno, which that most sacred lawgiver put forth concerning those that in respect of time demand too much. If, therefore, the time either that the plaintiff himself, of his own accord, granted as a favour, or that the nature of the action involves is being set at nought, then they that have suffered such a wrong are to have twice as much ; and after the time is over, they are not to take up a lawsuit unless they have received all the expenses of the one before. Thus plaintiffs, thoroughly frightened by such a penalty, will be taught to observe the time for lawsuits. (J. 4, 13, 8-10.) V. Set-off. Set-oflTs, when brought up, often make a man obtain less than is due to him. For on the ground of what is right and fair, account is taken of what he in turn ought to make good to the plaintiff in the same case ; and for the remainder the defendant may be condemned, as has already been said. (J. 4, 6, 39.) In proceedings bonae fidei the judge is allowed unrestricted power to estimate how much in fairness and equity ought to be given up to the plaintiff. This includes the power of taking into account as a set-off any- thing the plaintiff in turn ought to make good, and of condemning the defendant to pay only the balance. Even in proceedings at strict law, under a rescript of the late Emperor Marcus, if the exceptio by which the plaintiff was met was fraud, set-off was brought in. But a constitution of ours has brought in more widely the set-offs that rest on manifest right, and has allowed them to lessen the actions at strict law, whether for a thing or against a person, or of any other sort whatever, with the exception of the action of deposit alone. That an action of deposit should be met by a claim for set-off, we believed sufficiently undutiful : and it was excepted that no one might, under the pretext of a set-off, be fraudulently hindered from re- covering what he deposited. (J. 4, 6, 30.) IOl8 LAW OF PROCEDURE. 1. No sum can be set-off unless it is due by the plaintiff {actor) to the defendant {reus). (C. i, 31, 9.) But a surety sued for the debt of the principal debtor can set-off any sum due by the plaintiff either to himself or to the principal debtor. (D. 16, 2, 5.) 2. The debt must be such as would support an action or an equitable defence {exceptio). In this way a naturalia obligatio may be set-off (p. 455). 3. A debt, to be set-off, must be actually due. A sum payable at a future day by plaintiff cannot be set-off to a sum payable at once by the defendant. (D. 16, 2, 7.) 4. No debt can be set-off unless it is either undisputed by the plaintiff or suscep- tible of easy proof {Uquidum). (D. 16, 2, 8.) If the alleged debt is difficult to prove, there is no advantage in having a set-off; it would be just as easy for the defender to bring a cross action. 5. A debt, to be set-off, must be certain and determinate. Thus, if the plaintiff owes the defendant alternatively a sum of money or a slave, there can be no set-off until the choice is made, and it appears which is due. (D. 16, 2, 22.) 6. The debt must have some relation to the amount claimed before it can be set- off. Thus no set-off is allowed iu an action ex commodato. [G. i, 23, 4. ) Generally the question to be settled in allowing or refusing a set-off was, whether it was more convenient that the claim should be referred to one judge and one trial, or that the defendant should bring a cross action and try his claim separately. VI. Variance. If a man, vifhen he brought an action, embraced too much in his state- ment of claim — more, that is, than belonged to him, his case fell to the ground ; that is, he lost his property, and did not readily obtain from the Prsetor a restoration to his full rights. If, indeed, he was under twenty-five, just as in other cases, after inquiry, aid was given him if the slip was due to his youth ; so in this case, too, aid was usually given him. No doubt, if a case of mistake recognised by law came in so strong that even men of the firmest character might have made a slip, aid was given him although over twenty-five ; as, for instance, when a man demanded a legacy entire, and thereafter codicilli were brought forward, by which either a part of the legacy was taken away or legacies were given to certain persons besides, that made the plaintiff's demand exceed the three-fourths to which, according to the lex Falcidia, the legacies were brouglit down. (J. 4, 6, 33.) All this was once in use. But afterwards a statute of Zeno's and one of ours narrowed such use. If too much in respect of time is demanded, the constitution of Zeno of blessed memory {divinae memoriae) tells what ought to be resolved on. But if it is too much in respect of amount or in any other way that is demanded, then let the plaintiff be punished by being condemned to pay thrice the amount at stake, as we said above. (J". 4, 6, 33 E.) If the plaintiff embraces too little in his statement of claim— less, that is, than belonged to him ; if, for instance, when ten aurei were due him, he claims that five ought to be given him, or when the whole farm is his, claims half as his — he runs no risk in his action ; for the judge, under a constitution by Zeno of blessed memory, none the less condemns the opposite party in the same proceeding to pay the balance. (J. 4, 6, 34.) If one states in his claim one thing instead of another, it is held that he runs no risk. In the same proceeding, when the truth is ascertained, we allow him to coirect his mistake. An instance is, when one that ought to demand the slave Stichus demands Eros, or when one declares in his state- COSTS. IOI9 ment of claim that something ought to be given him under a will, and it is due under a stipulation. Q. 4, 6, 35.) (b.) Costs. In a mature system of law, a person that makes an unjust claim, or resists a just claim, is regarded as inflicting a distinct wrong, and as bound to pay compensation, the measure of which is well described by the term " costs." The best rule on this subject is, that while success affords a fair presump- tion of Tightness, the judge should be allowed to make such exceptions as justice may require. It can be no matter of surprise to anyone that follows the growth of Roman law that the early law contained no provision for costs. It is true that in the sacramentum the loser forfeited his stake, but not to the winner ; the lost stake represents the payment of the fees of court. By various steps, however, the Romans at last arrived at a sound system. 1. Penalties attached to a suit improperly defended. I. Nowwemust note that, by the old law, men were hindered from lightly going on to a lawsuit, by a pecuniary penalty or the sanctity of an oath, and these devices are still used by the Prsetor. Against a party, for instance, that denied liability in certain cases, an action for twice the amount is established ; as, for instance, in an action on account of a debt due by judgment {actio judicatt), or of money paid for another {actio depensi), or of injurious damage, or of legacies left in the form per damnationem. (G. 4, I7I-) 2. Wager. (Sponsio.) In certain cases one is allowed to make a judicial wager {sponsio), as for a determinate sum of money that has been lent, or for money that has been settled on {pecunia constituta) ; in a former case for a third of the sum, but in the latter for a half. (G. 4, 171.) To them must be added interdicts (p. 1000). 3. Oath of defendant. But if no risk is imposed on the defendant either of a judicial wager or of an action for twice the amount, and if the action is not at once, even from the beginning, for more than the amount simply, the Prstor allows the plaintiff to exact an oath that the defendant's denial is not in order to trump up a case. Hence, since heirs and those that are held to be in the position of heirs never incur an obligation for twice the amount, and since also against women and pupilli the penalty in a judicial wager is not usually enforced, the Praetor orders them only to take the oath. (G. 4, 172.) In some cases from the very beginning the action is for more than the amount simply ; in the case of furtum manifcstum, for instance, it is for fourfold; oi /urium nee mani/estum, ior Iv^oiolA ; oi furtum conceptu/n Rndi I020 LAW OF PROCEDURE. oblahcm for threefold. In these cases, and in certain cases besides, whether one denies or confesses liability, the action is for more than the amount simply. (G. 4, 173.) 4. Changes by Justinian. Now we must note that the upholders of our laws have taken great care to keep men from lightly going into lawsuits, and we have the same anxiety. This can be done chiefly by restraining the rashness both of plaintiffs and of defendants, sometimes by a money penalty, sometimes by the awe of an oath, sometimes by the fear of infamy. (J. 4, 16, pr.) An oath, for instance, under a constitution of ours, is tendered to all that are sued. The defendant, indeed, cannot make use of his allegations with- out first swearing that it is in the belief that he has a good defence that he comes to deny what is charged. Against those that deny liability in some cases an action for twice the amount is established, as when an action is brought on account of wrongful damage, or of legacies left to places worthy of veneration. Sometimes, again, even from the very beginning, the action is for more than the amount simply, as in the case olfurtiim manifestum for fourfold, of nee jnanifestitm for twofold. In these cases, and in certain cases besides, whether one denies or confesses liability, the action is for more than the amount simply. (J. 4, 16, i.) Justinian enacted in A.D. 530 that in all causes, whether decided in the presence of both or in the absence of one of the parties, the judges should condemn the defeated litigant to pay costs to the victor, estimated on oath by the victor accord- ing to the usual allowance ; and if the judges neglected to do 80, they could be compelled to pay the costs themselves. (G. 3, 1, 13, 6.) _ II. Penalties attached to the improper bringing of a suit. Plaintiffs are restrained from trumping up charges {caliimma) sometimes by the proceeding so called, sometimes by that called contrarium, sometimes by an oath, sometimes by demanding a stipulation in turn. (G. 4, 174.) 1. The proceeding called cahcmniae {iox trumping up a charge) is in place against any action. It is brought for a tenth of the amount in question, or against interdicts for one-fourth. (G. 4, 175.) 2. The proceeding called contra7-ium (opposition) is established in certain fixed cases. It may be brought, for instance, to meet an actio injuriarumj or if an action is brought against a woman on the ground, as alleged, that when sent into possession on behalf of her unborn child she fraudulently transferred possession to another ; or again, if one brings an action on the ground, as alleged, that when sent into possession by the Praetor he has been refused admission by some one else. Against an actio injuriarum it is given for a tenth ; against the other two for a fifth. (G. 4, 177.) This is a severer mode of restraint than the proceeding called calumniae. In that no one is condemned to pay a tenth unless when he knew that his action was not righteous, but began it to harass an adversary, and in hope of a victory rather from mistake or unfairness on the judge's part than from the truth of his case ; for calumnia lies in a man's intention, COSTS. 102I as theft does. But in the proceeding called contrarium the plaintiff is con- demned in any event if he has not maintained his case, although there was some opinion that led him on to believe he was right in brineine the action. (G.4,178.) 3. The penalty of a stipulation in turn {restipulatio) is usually enforced in certain cases, and as in the proceeding called contrarium the plaintiff is condemned in any event if he has not maintained his case, and no inquiry is made whether he knew that he was not right in bringing the action. For by the penalty of a stipulation in turn the plaintiff is condemned in any event. (G. 4, 170.) It is free to him against whom the action is brought to meet it either by the proceeding called calumniae, or by exacting an oath that the action is not a trumped-up one {calumniae causa). (G. 4, 176.) In every case, then, in which an action can be brought by the proceeding called contrarium, the proceeding called calumniae also is in place. But by one proceeding or the other alone is one allowed to bring an action. On this principle, if the oath that the charge is trumped-up is exacted, then as the proceeding called calumniae is not granted, so that called contrarium ought not to be granted either. (G. 4, 179.) Sometimes if a demand is made of a plaintiff with the penalty of a stipu- lation in turn, then neither is he met by the proceeding called calumniae, nor is he brought under the awe of an oath. As for the proceeding called contrarium, it is plain that in these cases it is not in place. (G. 4, 181.) 4. Changes by Justinian. The plaintiff also is restrained from trumping up a charge, for he, even, under a constitution of ours, is compelled to take an oath that he is not. On both sides also the advocates come under an oath — a point embraced in another constitution of ours. All this was brought in on account of the old action called calumniae, now fallen into disuse, because it fined the plaintiff one-tenth of the amount in dispute, a thing we nowhere find done. But instead of this there have been brought in the oath aforesaid, and the rule by which a man that shamelessly will go to law is forced to pay all damages and costs of the suit to the opposite party. (J. 4, 16, i.) In some proceedings the persons condemned are branded with ignominy — in the case of theft, for instance, of robbery, or oi injuria and fraud [Jiducia] ; tutela, mandate, deposit if the actions are direct not cross actions ; and again, in the case of partnership, which is a direct action on both sides, and in that proceeding, therefore, any one of the partners, if condemned, is branded with ignominy {j-nfamia). But in cases of theft, robbery, injuria, or fraud, not only those actually condemned are branded with ignominy, but those also that come to a compromise. [So it is written in the Prastor's edict], and rightly ; for it makes the greatest difference whether one comes under an obligation because of an offence or because of a contract. [In that part of the edict, further, it is expressly provided that a man sued in the pro- ceeding called contrarium, or again a man that has come in on behalf of a debtor, a tutor for instance, or a cognitor, is not to labour under ignominy. A man, therefore, that is sued as a surety is not ; for he is condemned on behalf of another.] (J. 4, 16, 2 ; G. 4, 182.) 1022 LAW OF PROCEDURE. (o.) Procurators and Advocates. We have seen that no agent could be admitted in the solemn formalities of the legis acZio, in accordance with the general rale that no one could take anything by a solemn formality except the person that performed it. We must note now that anyone can bring an action, either in his own name or in anothei-'s, — as, for instance, as procurator, tutor, or curator. (J. 4, lo, pr. ; G. 4, 82.) How tutores, again, and curators are appointed, we have told in the first book of our Commentaries. (J. 4, 10, 2 ; G. 4, 85.) Inconvenience very far from trifling was caused by the fact that in another's name no one could lawfully bring or meet {excipere) an action. Men began, therefore, to go to law by means of procurators. For disease, and age, and necessary journeys, and many other causes as well, often hinder men from being able to follow out their own affairs themselves. (J. 4, 10, pr.) Gains explains to us in what manner agents were introduced through the procedure by formulae. A man that brings an action in another's name, frames his statement of claim in the principal's name, but changes this into his own in the condem- nation. If, for example, Lucius Titius brings an action for Publius Maevius, \{\% formula is framed as follows : — "If it appears that Numerius Negidius ought to give 10,000 sestertii to Publius y\.3.&\\\i5, judex, condemn Numerius Negidius to give 10,000 sestertii to Lucius Titius. If it does not so appear, acquit him." ' If, again, the action is for a thing, his statement of claim is that " the thing belongs to Publius Maevius ex jure Quiritium,'' and this he changes in the condemnation into his own name. (G. 4, 86.) On the opposite party's side, if anyone comes in against whom the action is set on foot, the statement of claim is that the principal ought to give, but in the condemnation this is changed into the name of the person that has accepted the proceedings. But if the action is for a thing, the person against whom the action is brought does not appear in the statement of claim, whether it is in his own name or in another's that he comes into the proceedings ; for the statement of claim is simply this, that the thing is the plaintiff's. (G. 4, 87.) Difference between Cognitor and Procurator. A cognitor is brought in as a substitute in an action by using certain fixed words in presence of the opposite party. The plaintiff appoints the cognitor in this way : — "Whereas I am demanding a farm" (say) " from you, for that matter I appoint you Lucius Titius as cognitor^' The defendant, again, speaks thus : — " Since you are demanding a farm from me, for that matter I appoint Publius Maevius cognitor.'' It may be done by the plaintiff speak- ing thus : — " Whereas I wish to bring an action against you, for that matter ' SiparetNumerimn Ncgidium Publio Maevio sesterlium X milia dare oportere, judex, NuTnerium Neijidium I/ucio Titio sestertiurn X milia condcmna. Si non paret, absolve. PROCURATORS AND ADVOCATES. IO23 I appoint a cognitor," and by the opposite party speaking tlius,— " Since you wisli to bring an action against me for tliat affair, I appoint a cognitor." It malces no difference whetlier the cognitor h, appointed in his presence or in his absence ; but if appointed in his absence, he will be cognitor only if he knows of his appointment and undertakes the duty. (G. 4, 83.) ' There are no fixed words by which a procurator is brought into a suit in room of another. By a mandate alone he may be appointed, and that without either the presence or the knowledge of the opposite party. Nay, there are some that think a man must be held to be a procurator if only, though no mandate has been given him, he comes to the business in good faith, and gives security that the principal will ratify what he does. Although, therefore, he does not produce his mandate, a procurator is admitted ; because often a mandate at the beginning of an action is kept in the dark, and afterwards is displayed before the judge. (G. 4, 84.) When an agent must give security. 1. In Actions in rem. (1.) For Plaintiff. Let us see now what are the cases in which the man against whom an action is brought, or the man that brings it, is forced to give security. (G 4, 88.) As to securities, one way was adopted by antiquity, another has been embraced in practice by recent times. (J. 4, II, pr.) The man that brought an action for a thing, if he made the demand in his own name, was not forced to give security. (J. 4, 1 1, pr. ; G. 4, 96.) Even if the action is brought by a cognitor, no security is required either from him or from his principal, because there is a fixed and set form of words by which a cognitor is brought in as a substitute in room of the principal, and he is therefore deservedly regarded as a principal. (G. 4, 97.) But if a procurator brought an action for a thing, he was ordered to give security that the principal would ratify what he did, because there was a danger of the principal taking proceedings a second time in the same matter. [This danger did not come in if the action was brought by a cognitor; because for any matter in which a man has brought an action by a cognitor, he has no further right to bring an action, any more than if he had done so at first himself.] (J. 4, 11, pr. ; G. 4, 98.) Tictores and curators were by the words of the edict bound to give security, the same as procurators. But sometimes when they brought an action they were let off giving security. (J. 4, 11, pr.) (2.) For Defendant. If, therefore, in early times the action was for a thing, the possessor was forced to give security [for it seemed fair that as he was allowed to possess a thing to which his right was doubtful, he should guarantee by a security that if he were beaten, and did not give up the thing, or the value set on it in the ^ Qwod ego a te verbi gratia fundum peto, in earn rem Lucium Titium tibi cognitorcm do ; adversarius ita : quandoque tu a me fundum petis, in earn rem Publiuin Maevium cognitorcm do. Potest, ut actor ita dicat : quod ego tecum agere lolo, in cam rem cognitorem do ; adversarius ita : quandoque tu mecum agere vis, in earn rem cogni- tarem do. I024 LAW OF PROCEDURE. action, the plaintiff might have the power to bring an action against either him or his sureties]. This security was called judicatum solvi (that what is adjudged will be paid). How it came to be so called may easily be under- stood ; for one stipulated that what was adjudged should be paid to him. Much more was a man, if sued in an action for a thing, compelled to give security if he accepted proceedings on behalf of another. (J. 4, 1 1, pr. ; G. 4, 89-90.) 2. Actions in personam, (1.) For Plaintiff. All this was so if the action was for a thing. If, however, it was against a person [and we ask when security ought to be given], on the plaintiff's side all observances were exactly those we have spoken of in an action for a thing. (J. 4, II, I ; G. 4, 100.) (2.) For Defendant. On all these points the practice observed in our day is different. When a man is sued in an action, either for a thing or personally in his own name, he is not compelled to give any security for the amount at issue, but only for his own person, that he will remain in the power of the court up to the end of the suit. Sometimes this is committed to his promise on oath ; this they call guarantee by oath {juratoria cauiio). Sometimes he is forced to give his bare promise or security according to his quality and standing. (J. 4, 11,2.) On the defendant's side, if anyone came in on behalf of another, he must in any case give security ; because no one is believed to be a fit defender in another's case without giving security. [If, indeed, the action is against a cognitor, the principal is ordered to give security ; but if against a procu- rator, then the procurator himself The rule of law is the same with regard to the tutor and the curator.] (J. 4, 11, I ; G. 4, loi.) But if it was in his own name that anyone accepted proceedings in an action against a person, he was not forced to give security that what was adjudged should be paid {judicatum solvi). [In certaip cases this is usually given ; these the PrEtor himself points out. The reason for giving such securities is twofold ; it is given either because of the kind of action, or because of the person since he is suspected. It is because of the kind of action in an action for what is adjudged or paid on one's behalf, or in an action involving a woman's character. It is because of the person, when the action is against a man that has failed, or whose goods have been taken possession of, or posted for sale by his creditors, or if the action is against an heir the Praetor thinks an object of suspicion.] (J. 4, II, I ; G. 4, 102.) Agents under the Extraordinary Procedure. A procurator may be appointed without any set form of words, and though the opposite party is not present, and more than that, often without his knowledge. Anyone, indeed, to whom you entrust your case to manage or defend, is understood to be your procurator. (J. 4, 10, i.) PROCURATORS AND ADVOCATES. IO25 Agency passed through three periods ; in the first, no agent was allowed, except in two or three cases ; in the second, an agent could he substituted in court by certain solemn words (coffnitores) ; and las-tly, without any formality by an ordinary mandate { procuratores-}. These last alone renvain under Jus- tinian, and after the introduction of the Extraordinary Pro- cedure. Rights and' Duties-.. A. Between the Agent and the other Litigant.. 1. Duties of Procurator of Plaintiff. 1. No person can sue for another without showing that he is authorised to sue. All this appears more openly and' most perfectly fn tlie daily practice of the courts in the lessons to be learned from actual cases. This procedure, we resolve, shall hold not only in this royal city, but also- in aU our provinces,, even although from want of skill the- forms now followed may perhaps be diiiferent.. For it is necessary that all the provinces should follow the head of all our States — that is, this^ royal city, and the rules it observes.. (J. 4, II, 6-7.) Exceptions. — Certain persons- can sue on behalf of others without showing any express authority, as a husband for a wife (C. 2, 13, 21), a son for a father (C. 2, 13, 12) ;; so parents for children, brother for brother, patrons for freedmeu, and relations by marriage for one another (affines). (D. 3, 3, 35, pr.) But such pers-ons cannot sue against the wishes of the principal, even by offering security de vato. (D'. 3, 3,, 40, 4.) 2. An agent mast give security {satisdatw de vato) that the principal will endorse his action, unless under certain circum- stances. But if it IS through a procin-ator that a suit is either brought in or taken up in the character of plaintiff, unless a mandate is entered in the court records, or the principal in the suit in person confirms in court his character of pro,- curator, the procurator is compelled to. give security that the principal' will confirm what he does. The same practice is to, be observed if it is a iu/or or curator or other such person that has undertalcen the guidance of others' affairs, that is bringing an action, against any through a tliird person. (J. 4, 11,3-) 3. The duty expressed by the word d'efendere is to do that which the principal himself, if suing in his own person, would do. Having once assumed' the position' of agent, one must go on unless released or removed by the authoiity of the judge. (D. 3, 3, 35, 3.) Thus he ought to make answers to inter- rogatories issued on the part of the defendant. (D. 3, 3, 39, pr.) 3 T I026 LAW OF PROCEI^URE, II. Duties of Procurator of Defendant. 1. Anyone can act as agent for a defendant without express authority. (C. 2, 13, 12.) If not authorised, he must give security. But when a man is sued, if indeed he is ready on the spot to appoint a procurator, he can either come himself into court and confirm his pro- curator in that character by giving security in tlie set form of stipulation that what is adjudged shall be paid {judicaium solvi) ; or he may stay out of court and put out a security by which he becomes surety for his own pro- curator, for all the clauses in the security that what is adjudged shall be paid. Herein he is compelled to agree to a mortgage of his property, whether he promises in court or gives security outside it, so as to bind both himself and his heirs. Another guarantee or security, moreover, must be put out for himself personally, that at the time sentence is pronounced he will be found in court, or that if he does not come his surety will give all that is contained in the condemnation, unless there is an appeal. But if the defendant from any reason whatever is not present, and some one else is willing to under- take the defence, no difference between actions for a thing and against a person is to be introduced, and he can do so if only he furnishes security for the amount at issue, that what is adjudged shall be paid. No one, indeed, according to the old rule, as has already been said, is understood to be a fit defender in another's case, unless he gives security. (J. 4, 11, 4-5.) The stipulation judicatum solvi must be given at the begin- ning of tlie suit (C. 2, 57, 1) ; it included three clauses, de re judicata, de re defendenda, de dolo malo. (D. 46, 7, 6.) The first clause provides tliat the agent shall pay whatever sum is ad- judged, the agent being entitled to the same indulgences as the principal debtor. (D. 46, 7, 1 ; D. 3, 3, 51, 1.) The second clause, de re defendenda, provides that the agent shall take all proper steps for the conduct of the action {recte defendi). (D. 5, 1, 63.) By this clause the agent bound himself to proceed with the cause even if the defendant could not be summoned (as a consul, D. 46, 7, 12), or became insane (D. 46, 7, 3, 8) or insol- vent (D, 3, 3, 76.), Under the third clause, the agent bound himself to refrain from malicious injury to the subject-matter of the dispute, (D. 46, 7, 19, 1.) 2. The agent must take all proper steps to conduct the suit. If the agent himself gave security, he could not be compelled to carry on the litigation to judgment ; he could stop when he pleased, and leave the case undefended ; but he lost the sum promised, and his sureties could be sued for it, if the plaintiff had required sureties. (D. 3, 3, 45 ; D, 3, 3, 44.) If, however, not the agent but the principal defendant gave security, the PROCURATORS AND ADVOCATES. 1 02 7 Prsetor compelled the agent to act. (D. 3, 3, 8, 3.) But even in this case the agent was allowed to withdraw if there was any adequate excuse. (D. 3, 3, 6 ; D. 3, 3, 14 ; D. 3, 3, 5.) Even, however, with the best exctise, an agent was com- pelled to go on if his refusal would expose the plaintiff to injury. (D. 3, 3, 12.) Such questions, however, were in a peculiar degree questions for the discretion of the Praetor, according to the circumstances of the case, (D. 3, 3, 13 ; D- 50, 17, 85, 2.) B. Between a Litigant and his Agent. The relation between a litigant and his agent was governed by the rules of mandate. The agent was appointed to conduct the proceedings up to judgment (in litem) ; to that he was limited, and could not, therefore, give a discharge. Hence, if a defendant offered to pay the money due before the litis contes- tatio, the judge ordered the money to be deposited in a temple ; and if the case were carried further, he acquitted the defendant. (D. 3, 3, 7, 3.) Again, if the agent did not properly fulfil his mandate, he had no claim to compensation for his outlay, according to the general rule governing mandate. (D. 3, 3, 43, 4 ; C. 2, 13, 5.) Investitive Facts. — The investitive fact was either mandate, or such facts as would constitute the agent a negotiorum gestor. One party cannot have more than one agent, the appointment of a second operating as a recall of the first (D. 3, 3, 31, 2); parties conjoined in a suit, having separate interests, could employ separate agents. (D. 3, 3, 42, 6 ; D. 3, 31, 1.) Certain persons were not allowed to act as procurators. There are further dilatory exccptiones arising from the status of the person, such as those taken to a procurator ; as when one wishes to carry on an action through the agency of a soldier or a woman. Soldiers are not allowed to take proceedings as procurators, not even for a father or a mother or a wife ; no, not even tjnder a sacred rescript. Their own matters they may lopk after without any offence against discipline. But the exxeptiones that in old times were arrayed against procurators because of the infamy either of the principal that appointed them, or of the procurator himself, are, as we have clea: ly seen, not at all common in trials. We have, therefore, enacted that they shall entirely cease, lest disputes as to them should spin out the discussion of the actual matter at stake. (J. 4, 13, 11.) The defence of another was considered a duty fit only for men. (0. 2, 13, 18.) Thus a woman could not act as agent for her husband even in his absence ; a woman could sue only when her own interest was concerned. (C. 2, 13, 4 ; Paul, Sent. 1, 2, 1.) But daughters were allowed to act for their parents, if these were ill or aged, and I02 8 LAW OF PROCEDURE. if they could get no one else to act for them. (D. 3, 3, 41.) The objection could not be taken after the litis coniestaiio. (D. 3, 3, 57, 1 ; C. 2, 13, 13.) A slave could in one case only act as agent — to bring the interdict unde vi on behalf of an absent master. (0. 8, 8, 1.) Divestitive Facts. — ^Procurators, in one respect, however, were exempted from the rules of mandate; an agent, even after the death of hi.s principal, could cany on the lawsuit to its termination. (C. 2, 13^ 23.) The reason may be found in the fomiiiila given by Gaius. It was the name of the agent, not of the principal, that was introduced in the eondemnatio. The formula was- in effect this : "if A, owes money to B., the judex shall condemn A. to pay the- amount to G'." What happened to B'. after the formula was given became thus entirely irrelevant to the judgment that the judex eould alone pro- nounce.. The agent became, in a sense;, the litigant {quasi dominus litis). (C 2,. 13, 23.)- This idea survived the use of formulae, and the rule was established that although before the lids coniestaiio a litigant could change his agent as often as he pleased, yet after that event the agent co-uld not be changed'.. (D. 3,. 3,, 16.) This stringent rule was inconvenient. While the formula system was in force,, the only way that an agent eould be- changed, once his name was down in the fonnula {i.e., after the litis contesfatioy, was by the proceed- ing of restitutio^ in integrum. — by going back to the Praetor, and,, on making out an adequate case,, obtaining a new formula. Under the e.xtraovdinary procedure thfs proceeding was un- necessary,, but still no change was allowed,, except by the authority of the judge, after hearing tlie reasons po'O' and eon. (D. 3,. 3, 17 ; 0. 2, 13, 22.) If, however, the agent had interfered without the express mandate of the principal, the principal had a right, without showing reasons, to dismiss- him, and take up the suit himself. (D. 3,- 3, 27.)' ACVOCATES {A'DV'OVATI): The parties to a suit could either conduct their causes them- selves,, or employ advocates to do sO.. A contract madebetwesn a client and advocate' with respect to his remuneration was void.. (D. 3, 1^ 9', 3,) But an advocate could accept a honorariwm, in later times fixed a-t 100 aurp£ (D. 50, 13, I, 12.) These fees^eould mot, however, be recovered by the heirs of an advocate. (D. 50, 13, 1, 13.) If the advocate- failed to plead a cause for which he accepted a honorariutn, he PROCURATORS AND ADVOCATES. IO29 ■was obliged to return it if it was his fault (C. 4, 6, 11), but otherwise not. (D. 19, 2, 38, 1.) Every advocate before beginning his pleading was required to take an oath not to pervert justice through excessive zeal for his client, (C. 3, 1, 14, L) PART III.— EXECUTION OF JUDGMENTS. a. plioceedrngs to determine the existence of a Judgment Debt. The judgment of a judex may be regarded as in a sense the natural termination of a Roman Civil Trial. The suit begins in a feigned quarrel, and the judgment determining which is right and which wrong may be said to dispose of it altogether. But suppose a defendant refuses to obey a judg- ment. In this case the proceedings take a new departure. The successful plaintiff must again seize the defendant and take him before th€ Praetor., thi« time to prefer not his original cause of complaint, but a new one, — that the defendant refuses to satisfy the judgment given against him. Hence, without much impropriety, the new proceedings are called an "action," whereas in modern systems of law it would be erroneous to speak of the steps taken in execution of a judgment of a court as in any reasonable sense a new action- But in the Roman law, under the so-called Ordinary Procedure, the judgment was not the judgment of a court ; it was the judgment of a private individual, as referee or arbitrator. There was nothing un- reasonable, therefore, in requiring a plaintiff to satisfy the Prastor that the judgment was right, before that magistrate would assist him with the coercive authority of the State. Accordingly, just as in the first instance, the complainant went before the Praetor and asked him to interpose his authority to terminate a dispute by giving a judex; so, if the defendant disputed the judgment of the judex, the plaintiff must again go before the Praetor to prove the legality of the judgment, and on proof thereof to obtain the assistance of the State to compel the obedience of the defendant. We can thus understand why the proceedings taken in execution of a judgment were called " actio" not merely under the earliest form of procedure (actio per manus injectionem), but under the latest {actio jadicati). What gives greater colour to the use of the Avord is, that a judgment 1 030 LAW OF PROCEDURE. was not the only ground Upon which such an action could be moved, but the same proceedings could be taken in cases where no judgment had been given. I. Actio per manus injectionem. The action per manus injectionem (by laying hands on a man) might equally be brought in cases where this proceeding was provided for by any statute ; as in the case of a man judged a debtor, by the statute of the XII Tables. The action was of this sort :— the man that took proceedings spoke thus : — " Whereas you have been judged, or condemned, to me in ten thousand sestertii, which hitherto you have not paid, I, therefore, because of that debt of ten thousand .f^j/^r/'H' judged due, lay hands on you,"^ and at the same time he grasped some part of his body. The man judged a debtor was not allowed to shake off his hand and to take proceedings {lege agere) to defend himself, but he gave a substitute ivindex), who used to conduct his case for him ; or if he did not, he was led by the plaintiff to his house, and was put in chains. (G..4, 21.) The object of the proceedings is to legalise arrest. It is not the magistrate that executes the judgment ; it is the plaintiff that seizes the defendant, and appeals to the magistrate for support. The defendant is obliged, if he cannot satisfy the judgment, to go away as a prisoner with the plaintiff. A pro- vision is, however, made for the case where a defendant dis- putes the fact of any judgment having been given, or alleges that the judgment exceeded the powers of the judex, or was flagrantly illegal (sententia nidlius momenti), or that judgment had been satisfied. (D. 42, 1, 4, 6.) The defendant is allowed to defend the action, not in person, but by a substitute (vindex). It is impossible not to be struck with the similarity of these steps to the proceedings in a suit for freedom. Naturally a slave claiming freedom was not allowed to sue by himself; but why should a freeman whose freedom was attacked be unable to defend himself, and be compelled to go into slavery unless he got some one willing to take upon himself the risks and costs of the litigation? Whatever may have been the reason, the rule is the same when a judgment creditor demands the person of his debtor as a slave, on the ground that the judgment has not been satisfied. The debtor must find a substitute (vindex), who thereby makes himself responsible for the payment of the debt, if it should prove that there was a valid judgment. Mr Poste suggests that in default of appearance, in pro- ^ Qaod tu mihi judicatus sive damnatas es sestertium X Tnilia quae ad hoc non solvisti oh earn rem erjo tibi sestertium X milium judicati manum injiciu. EXECUTION OF JUDGMENTS. 1031 ceedings under the XII Tables, the plaintiff could at once proceed per manus injectionem. This cannot, however, be relied on as certain. The proceedings by arrest had the advantage of being speedier than a submission to arbitration, and we accordingly find that the convenience of the remedy caused it to be extended to certain other cases, where a special obloquy attached to the non-payment of debt, Afterwards certain statutes on certain other grounds granted manics injectio against certain persons as if they had been judged debtors {j>ro judicatd). The lex Publilia, for instance, granted it against a man for whom a surety had paid out money, if within the next six months after the money had been paid out for him he did not pay tlie surety. The lex Furia de sponsu (on suretyship) also granted it against him that had exacted from a surety more tlian his proportionate part. And in sliort many otlie'r statutes in many cases granted such a proceeding. (G. 4, 22.) There were other statutes, too, that in many cases in which actions were granted against certain persons, establislied certain proceedings per manus injectionem, but simple, not, that is, as if one were judged a debtor. The lex Furia iestainentaria (on wills), for instance, granted it against tfie man that had taken more than five hundred asses on account of legacies, or as a gift in prospect of death, unless, indeed, he was excepted from the statute, and so might lawfully take more. The lex Marcia, also, against usurers, settles that if they have exacted usury, the proceeding against them for its return shall \i& per manus itijectioiiem. (G. 4, 23.) Under these statutes, and any other Uke ones, when proceedings were taken, the accused might lawfully shake off the hand and defend himself at law. For the plaintiff in the actual legis actio did not add this word '' as if judged a debtor,'' but named the ground on which he proceeded, and spoke thus : — " Because of that I lay hands on you.'' Those, however, that were granted a proceeding as if a man were judged a debtor, named the ground on which they proceeded and brought it in thus : — " Because of that I lay hands on you as if judged a debtor." I am not indeed unmindful that in the form under the lex Furia testamentaria the word " as if judged a debtor" {pro judicata) is inserted, although not in the actual statutes. But this seems to be done on no principle. (G. 4, 24.) Afterwards by the lex ( .■' Vallia), with the exception of the man judged a debtor, and of him for whom a debt had been paid, all the others against whom proceedings were taken ^^r manus injectionem were allowed to shake off the hand and to take proceedings to defend themselves. The man judged a debtor, therefore, and the man for whom money was laid out, were bound even after this statute to give a security {vindex), and if they did not give one, were led to the plaintiff's house. (G. 4, 25.) II. Actio Judicati. All this, therefore, was always observed so long as the legis actiones were in use. Hence in our times the man against whom an action for a debt due under a judgment or for money paid out is brought, is compelled to give security that the debt due under the judgment shall be paid. (G. 4, 25.) 1032 LAW OF PROCEDURE. As a rule, in the actio judicati, no question of fact could be m issue between the parties ; if the defendant urged that the judgment was null or void, the Prjetor determined the question in accordance with law. But if the defendant urged that he had satisfied the judgment, an issue of fact was raised, the determination of which was probably ref«iTed to a judex. For after judgment either th-e defendant may have paid the sum due, or the plaintiff may have released him. The form of release was by mancipation (imaglnaria solutiojper aes et hbram). (G.. 3, 174.) The change mentioned by Gains from the actio per manus in'jectionem consisted in the substitution of a surety {cautio judicatuni solvi) for a vindew. 1. By and against whom the actio judicati may be bronglit. Only the actual plaintiffs or defendants, not their agents, can sue or be sued in this proceeding. An agenteannotenforcethe judgment he has obtained (although the condemnation stated that the money was to be paid to him), but if the principal became insolvent, he could apply for payment of his expenses out of the proceeds of tbe judgment. (D. 3, 3, 30.) So neither ^can an agent for a defendant be required to •satisfy the judgment, unless he undertook the defence without the authority of the defendant (D, 42, 1, 4), or was the real defendant (procurator in rem suam). (D, 3, 3, 61.) It may be brought by and against the heirs of the parties. (D. 42, 1, 6, 3.) 2. The object of the action was to obtain payment of the amount -contained in the judgment-, but in special cases the defendant could require the plaintiff to be content with adequate sureties. (D. 42, 1, 4, 3.) In the time of Gains, the defendant, if condemned, had to pay twice the amoimt of the judgment (G. 4, 171), although from the omission of this case in the corresponding section of Jus- tinian (J. 4, 6, 23), we may infer that the penalty of double damages had fallen into disuse. After the time allowed for payment, interest at 5 per cent, was exigible (C. 7, 54, 1), beginiiing after four months from the date of the judgment in the time of Justinian ; or if an appeal was allowed, from the dismissal of tbie appeal. (C. 7, 54, 2.) Interest was allowed only on the principal debt, not on the interest, if any, given by the judgment, according to the rule that compound interest {usurae usurarum) was unlawful. (C. 7, 54, 3.) EXECUTION OF JUDGMENTS. IO33 3. When the actio judicati could be brought. The time allowed for payment of a judgment debt was by the XII Tables thm-ty days, extended afterwards to two months, and finally by Justinian to four months. (C. 7, 54, 5.) But the magistrate had a discretionary power to hasten or delay the time according t© circumstances. Thus in judgments foe ali- ment no delay was allowed. (D. 42, 1, 2.) B. Proceedings to Enforce Judgments for Property. In the proceedings for recovery of property under the legis aetiones, the form of judgment was to the effect that one of the parties was right in saying he was owner. In effect, the judgment determined the question of ownership. It followed that the possessor, if judgment was given against him, wrong- fully hel-d what belonged to another ; and if he refused to go out, might be ejected by the force at the command of the magistrate. Under the formula system the question of owner- ship resolved itself into a pecuniary condemnation, but one can scarcely doubt that, in the last resort, if i;he money were not paid, the owner would be put in possession of his own. At all events, under the so-called Extraordinary Pro- cedure, an owner on establishing his title was put in posses- sion by the armed intervention of the State (manu militari). (U. 6, 1, 68), 0. Proceedings to enforce Judgment 'Debts. The simple, and as it seems to m.% obvious mode of executing a judgment, is to seize the property of the debtor and sell it. For reasons that do not appear on the surface, this plan did not occur to the early Romans, and was not indeed em- ployed until a late period in the Empire. The only way of compelling satisfaction of .a judgment debt, known to the early Roman law, was to seize the debtor as a slave. Hence a strange anomaly. It must have seemed either an extraordinary stretch of tyranny, or rank sacrilege, to touch a man's property, but to seize his person, and keep him as a slave, appeared the most natural thing in the world. The first known process of execu- tion was thus directed against tli« person of the debtor. By a natural transition, th-e Roman law passed to execution by sale of the universal succession of a debtor, and, last of ail, to the sale of particular pieces of property. I034 LAW OF PROCEDURE. First Epoch— Execution against the Person. Aulus Gellius gives an account of the old process of enforcing debt. We have seen from Gains that a debtor was allowed thirty- days to discharge a judgment debt before he could be arrested. If he did not pay, or find a vindex to dispute the judgment, he Avas carried off by the creditor in chains. At this point the debtor was said to be addictus, in arrest, but not in slavery ; for if released, he did not become a freedman. He retained his status as freeborn (ingenwts). After being assigned (addictus) to the creditor, the debtor was kept in chains for sixty days. During this period, on three successive market days (nundinae), the creditor was required to bring his debtor before the PraBtor and proclaim the amount of the debt, to give an opportunity to his friends to discharge the debt and release him. On the third occasion the debtor was killed, and his body divided among the creditors, or he was sold into slavery beyond the Tiber. The words of the XII Tables have been given,, p. 18. Aulus Gellius remarks on the exceeding barbarism of the XII Tables in sanctioning the killing of debtors, and dividing their bodies among their creditors. So Quintilian speaks of it as a law that had fallen into desuetude. Both Tertullian and Dio Cassius refer to the same tradition. Many authors have felt unable to believe that the account is correct. It is not merely that the remedy is cruel, but that it is absurd. We can scarcely conceive a state of society where men should entertain such a consuming hatred of debtors, as to be satisfied with nothing less than their lives. However that may be,- it is certain that the ordinary remedy, within the historical period, was not by killing a debtor, but by keeping him as a slave. The execution of judgments, by seizing the person of the debtor, may be compared with the surrender by a master of a slave that has committed a delict {noxalis deditio). When a slave, a son in potestate, or a wife iii manu, committed a theft, or damage, or other injury, the master, father, or husband i-espec- tively were bound to pay compensation or give up the offender. The offender was surrendered by mancipation, and was held in mancipio by the aggrieved party. If, however, an injury were done by the master himself, practically the same alternative was presented to him ; he must either pay conipensation, or be taken as a slave. The idea is the same, and there is but little difference even in the form. Originally there was no distinc- EXECUTION OF JUDGMENTS. I035 tion between slavery and mancipium, as we may gather from the name mancipia, often applied even in the Digest to slaves. Moreover, one of the explanations, and not the least probable of nexi, is, that they were freemen who sold themselves as secu- rity for debt. Nor is it difficult to understand why a debtor shovild be taken as a slave. The reason is simply this, that if he would not pay he must work. Free labour was not an institu- tion of ancient society, and the only type that the law could follow was that of slavery or mancipium. Another circumstance deserves attention. Throughout the proceedings described to us by Gains and Aulus Gellius, it is not the Praetor, as representing the State, that takes the initiative ; it is not his officers that arrest the debtor. It is the creditor that seizes the debtor, and calls upon the Prretor to sanction the arrest. From first to last, the law interferes only to moderate the severity of creditors ; to take precautions in the interest of debtors, so that no man may seize another and keep him as a slave on a false pretext of debt. The pro- ceedings are essentially a private act of force legalised and restrained by law. Just as the summons, in its first stage, was purely a private act, in which the law simply made the exercise offeree lawful, so in the execution of a judgment the law goes no further than to refuse to shield a debtor from his creditor. It says in effect, the law cannot give you protection against the arrest of your creditor, so long as a judgment remains against you unsatisfied. About B.C. 326-313 an act was passed commonly called lex Poetelia Papiria, abolishing the ncxum, and from this date pro- bably we may reckon the rule of law that liberty is inalienable. Whether this law, which put an end to the voluntary aliena- tion of personal freedom, also extinguished its involuntary alienation through the execution of judgment debts, is un- certain ; a passage from Varro appearing to indicate that the latter change was reserved to the time of Sulla. However that may be, it is certain that during the later Republic a debtor could not be taken as a slave to satisfy a judgment debt. The imprisonment of the debtor in a public prison took the place of his reduction to slavery. (C. 7, 71, 1.) It was an offence {injuria) to prevent food and bedding being taken to an im- prisoned debtor (D. 42, 1, 34), but we find no trace of an obligation on the part of the creditor to find him food, from which it may with some probability be suspected that the 1036 LAW OF PROCEDURE. imprisoned debtor was bound to maintain himself. Finally, Constantine (A.D. 320) abolislied imprisonment for debt, unless the debtor were contumacious. (C. 10, 19, 2.) Second Epoch— BANKRUPTCY, or Sale op a Debtor's Universal Succession. Festus (p. 70) observes that a free person given in mancipio to another is eapite (lemkiutus. His new master became his universal successor. But there were two kinds of universal succession — to ihe living and to the dead. A universal succes- sion to the dead was taken, so to speak, for a moment of time. All that the deceased owned, all that he owed at the time of his death, passed to his universal successor. But a universal succession to the living had two faces, one looking to the past and summed up in the moment of tlie succession, the other looking to the future. The universal successor of a living person obtained not only everything up to the moment of the succession, but all that the person he succeeded to could ever subsequently acquire. This was the case in succession by mancipation : a person given in mancipio not only lost all his existing rights, but was disabled from acquiring any new rights. It swept away at one stroke both the past and the future of the debtor. Now the great point in favour of a debtor, by making him a bankrupt or selling his universal succession, v^as, that while taking away the past, it left him the future. This change was due to the Prsetor, who found ready to his hand a model to follow in the ancient seciio lonorum. The State, for its own objects, felt no scruple in selling out a man, although it did not venture to touch a man's property merely to satisfy a private debt. The words seciio, sectores, seem to have been applied from the circumstance that the purchaser sold the goods that he had bought in smaller quantities. (Festus, p. 337.) The sectio was the purchase of the universal succession to a person condemned or prosci-ibed. The purchaser acquired the Quiritarian ownership of all the property belong- ing to the proscribed, the sale taking place under the spear (sub hasta), the symbol of Quiritariaji ownership. He again that has bought a man's goods at a State ^akjlias set forth for him an interdict of the same sort, called sectoriumj because sectores is what those are called that deal in goods bought at a State sale. (G. 4, 146.) A. Bankruptcy against the Will of the Bankrupt. EXECUTION OF JUDGMENTS. IO37 I. Missio in possessionem. Vendiiio Bonorum. Actio liuiiliana. 1. When a debtor departs from the jurisdiction, leaving uo one to act for him.^ or conceals himself to avoid legal proceed- ings, he is sold lap.. (Gr.. g; 78.) The execution of a judgment debt by arrest and enslavement of the debtor was a veuy strong measure when it could be em- ployed, but it was exposed to the drawback that the debtor, by avoiding his creditor, might deprive him of all remedy. Just as the old law of summons made no provision for the case of deliberate concealment, so in the execution of a judgment debt the debtor was safe- if he kept out of the way of the creditor- The creditor could not touch his property. The old law, while thus extravagantly severe against impecunious debtors who had not the- means of evading process, was impotent against solvent debtors, if they eould avoid a personal encounter with their creditor^ It was with the last evil that the Prtetor dealt. When a debtor kept out of the- way, he granted his creditors an entry on. his property {missio in possessionem). This step was of the nature of an arrest of property. It cut off the debtor from all right to enjoy his property (D. 42, 4, 7), and gave the creditors a right of control and management. (D. 42, 5-, 8, 1.) The creditors had a right to grant receipts to the debtors of the estate (.D. 50, 16,,. 56), and tO' the inspection of documents, but not to take copies. (D. 42,. 5, 5.) Once in possession (,D., 13, f, 26,. 1), the creditors had the right of mortgagees only, not of owners. (D. 13, 7, 26,, pr.) The arrest is maintained until the debtor finals security to contest the claim of the creditor, (D-. 42, 5,. 33, 1.) The- creditors must aceouat for all the income that they may oi- ought to have obtained (D. 42, 5,, 9, 6),.- and they aue entitled to the expenses. (D, 42. 5; 9, 3.) In lite manner, too, tlie pm'cliaser of the goods proceeds on the fiction that he is hei-r.. But in some cases it is usual to proceed' in another fashion — namely, by taking, his statement of claim from the person of the man whose goods he has purchased',, and then changing the- condemnation into his own person.. The effect of this is- tt> condemn his opponent to pay him, on the score that the things belonged to the inSolventr or that the debt was due to the- insolvent. This form of action is- called Riitilinna ; because it was drawn up by the Praetor Publius Rutilius, who is said to have brought in also, the forced sale, of goods, {bonorum venditio), (G.. 4, 35.) 2, The Sale.. If it is a living man whose goods are being- sold, the Praetor orfers them to be kept in possession, and notices to be posted during thirty successive 1038 LAW OF PROCEDURE, days ; but if it is a dead man, fifteen. Afterwards he orders the creditors to meet, and out of their own number to elect a manager {magister); a man, that is, through whom the goods are to be sold. If, then, it is a living man whose goods are being sold, he orders the terms of sale to be prepared within ten days, if a dead man within five days ; and within forty days more in the case of a living man, or twenty more in the case of a dead man, he orders the goods to be made over to the buyer. The principle on which the forced sale of goods is by the Praetor's orders more slowly completed in the case of living men is, that for living mei> care must be taken that they should not readily suffer forced sales of their goods. (G. 3, 79.) Theophilus (J. 3, 12, pr.) gives some additional particulars. The first etep taken by the creditors was to get the custody (possessio) of the debtor's goods. Next, after a delay of thirty days, they select one of their number, called a magister, whose name is submitted to the Prsetor. After his appointment, he causes a notice to be issued in these words : — '^ So and so, a debtor of ours, has committed an act of bankruptcy ; we, his creditor.s, ar,e selling his property ; let anyone that wishes to buy come forward." After certain days a third application was made to the Prsetor to authorise a sale and settle the dividend, the sale being in this form, that the purchaser offered the creditors a certain proportion of their debts ; as, for example, one-half. After this authority was obtained, another delay was allowed, and finally the buyer was yested in the uni- versal succession of the bankrupt by the adjudication of the Prsetor. This forced sale released the debtor from all past debts. In respect of auy cause of action arising before the missio in possessionem, the debtor could neither sue nor be sued, unless he had acted fraudulently against his creditors. In this case he - was subjected to an action as a punishment. (D. 42, 8, 25, 7 ; G. 1, 155.) But the debtor, although released ffom his debts, was henceforth infamous (Cic. pro Quint. 15 ; G. 2, 154 ; G. 2, 12, 11), and was not allowed to defend any suit unless he could find sureties. (G. 4, 102.) Rights and liabihties of the purchaser. Neither to a honorwn possessor nor to a bonorum emptor (purchaser of an insolvent estate) does property pass with full rights ; it becomes his only in bonis. His ex jure Qiiiritium it can become only after it is acquired by tisucapio. Sometimes, however, the purchasers of insolvent estates cannot acquire by usucapio, — if namely. . . , . (G, 3, 80.) Again, debts due to the man whose the goods were, or debts he himself owed, neither the bonorum possessor nor the bonorum emptor in strict law owes or has owed him. In all matters, therefore, they both take proceedings, and are sued by utiles aciiones, which we will put forth lower down. (G. 3, 81.) The buyer enforced his rights to the property of the bankrupt by an interdict. (G. 4, 145.) II. Curatores bonorum distrahendorum. By a Senatns Consultum a different mode of proceediag was instituted in the case of persons of high rank — a senator or his EXECUTION OF JUDGMENTS. IO39 wife. A curator instead of a niagister was appoiuted, for the purpose of avoiding- a loss of existimatio. (D. 27, 10, 5.) The curators took possession of the property of the debtor, and sold it in lots as might be most convenient, the debtor being released only to the extent to which the assets went. The universal succession of the debtor was not disposed of, and thus his existimatio was untouched. In the case of other persons the creditors could resort to whichever method they pleased. (D. 27, 10, 9.) The curator was appointed by a magistrate of the highest rank. (D. 42, 7, 2, 4.) Several curators might be appointed, in which case each could sue or be sued for all. (D. 42, 7, 2, 2.) After Diocletian, the old system of appointing magistri went out, and curators were appointed in every case. There were before the aforesaid kind of succession other kinds also of universal succession. Such was the sale of goods brought in for selling, with many roundabout formalities, the goods of a debtor. It was in place when the ordinary procedure {judzcia ordinarzd) was in use ; but when later times used the extraordinary procedure, then with the ordinary pro- cedure the sales of goods, too, died away. Creditors are now allowed by the judge, in virtue of his office, to take possession of the goods, and to dispose of them as they think advantageous. AU this will more perfectly appear in our larger book, the Digest. (J. 3, 12, pr.) B. Bankruptcy on the application of the Bankrupt (Cessio Bonorum). The Praetor did not interfere to mitigate the lot of the debtor who was unable to pay, although he interfered io favour of the creditor whose debtors could, but would not pay. That amelior- ation of the civil law seems to have been too much for his power, and accordingly we find rehef first given by legislation, probably in the early days of the Empire. The introduction of bankruptcy as an alternative to personal arrest and imprison- ment is ascribed to a lex Julia. (G. 3, 78.) Let us look also to the kind of succession that is open to us under the sale of goods of an insolvent. Men's goods are sold either when they are alive or when they are dead. When they are ^live, as in the case of those that go into hiding to defraud their creditors, and being absent do not defend themselves ; or in the case of those that surrender their goods under the lex Juliaj or again, in thg case of debtors under a judgment after the time that is allowed therti to get the money ready, partly under the statute of the XII Tables, partly under the PrEtor's edict, is now past. When they are dead, as when it is certain that they have no heirs, nor bonorum possessores, and that no pther lawful successor is in existence. (G. 3, 77-78-) 1040 LAW OF PROCKDURE. It is not known whether this enactment is due to Juh'us Caesar or to Augustus, but if to the latter, it was probably as a general measure following up a precedent set by the former^ When Caesar was Consul ^B.c. 48*), he obtained an enaetment that debtors^ many of whom were rained by the civil war, should get rid of their debts by transferring their property tc their creditors at the priee it would have fetched b&fore the- war. The iex Julia- permitted a debtor to surrender his pro- perty tO' his creditors in lieu of execution against his body. (C. 7, 71, 1.) The Tabula Ileracleensis declares a person incap- able to sit in the Ciuia who has made a surrender of his estate.. That table is very probably a municipal; law c^f the time of Julius Cffisar. Such surrender, moreover, did not entail infamy (C. 2, 12, 11), but it did not release the debtor fro-m liability, if he could afterwards pay without leaving himself in want. (D. 42, 3, 4.) Against a man, too^ tRat has surrendered his gbcxis to his creditors, if he- afterwards a-cquires anything that yields- a suitable profit, fresh proceedings may be taken by his creditors ;. but only for what he is able to do, since it would not be humane- to condemn for the entire amount of hds debts a man. despoiled of his fortune. (J. 4,, 6, 40.) Hence a small allowance made to a bankrupt for' his main- tenance could not be seized by his creditors; (D. 42,. 3, 6 ; C„ 7, 72, 3 ; D. 42, 3,-4-, 1.)- The surrender might bemade in presence- of the Praetor, but that was not necessary. (D.. 42,. 3, 9.) At first certain formalities were required (C. Th. 4, 2,0, 2),.. but itt later times it was enough if the debtor signified in any manner his wish to surrender his estate to his- creditors.. (.C..7, 71,,6,.pr.)i The debtor could even after that interpose, and by paying hi* debts in full save his estate from being sold.. (D. 42,. 3,. 5-.) Beneficium quinquennalium. — Debtors sometimes petitioned' the Emperor that an election should be given, to their creditors,, either to give a respite for five years or to accept a bank- ruptcy. The person or persons- that held the greatest amount of debt decided which course should be adopted.. If the- amount of debt is equally divided, that half which has a majority of debtors is to decide. If the number of creditors- also is equal,, their request is to^ be granted. (C. 7, 7,1, 8;,) 0, Alienations- and Acquittances^in Fraud of Creditors. If,, again, to defraud his creditors,, a man delivers anything to- some one: else, after his goods, have been taken possession ot by the creditors- under a decision of the President, the creditors, themselves, are alLowed to rescind. EXECUTION OF JUDGMENTS. IO4I the delivery and to demand the thing; that is, to allege that the thing was not delivered, and therefore remained among the debtor's goods. (J. 4, 6,6.) Two questions have to be considered — (1) What is an ahena- tion or acq-uittance in fraud of creditors'? and (2) To what extent has the creditor a remedy? 1. An alienation in fraud of creditors comprehends any act or forbearance by which a debtor diminishes the amount of his property divisible among his creditors, but not a forbearance by which the debtor simply fails to add to his property. (D. 50, 17, 134.) Every alienation of property or contract (D. 42, 8, I, 2), and every acquittance of a debt or pledge (D. 42, 8, 3), even to an intended husband as a dov/ry, was a diminu- tion of the goods. (D. 42, 8, 10, 14.) A debtor making default so as to suffer the loss of his action, or neglecting to sue until the time of prescription runs out, or losing a servitude by non-use, is said to diminish the goods divisible among his creditors. (D. 42, 8, 3, 1 ; D. 42, 8, 4.) A debtor refuses to enter on a solvent inheritance. This is not a forbearance diminishing his assets. (D. 50, 16, 28 ; D. 42, 8, 6, pr.) A debtor emancipates his son that he may succeed to a solveat inheritance in hia own right. This is not a forbearance diminishing assets within the meaning of the edict. (D. 42, 8, 6, 3.) Payment of debts is not a subtraction from the assets of the debtor within the purpose of the edict,^ unless the object of the payment is to give a fraudulent preference to one of the creditors, (D. 42, 5, 6, 2.) A debtor surrendered an inheritance according to the Senatus CansuUum Trebel- lianum, without reserving the fourth, to which, under that enactment, he was entitled. This is not an acquittance within the meaning of the edict. (D. 42, 8, 20.) A husband, to defraud his creditors, repaid his wife, on divorce, her dowry, before the time had elapsed when he was compelled to do it. The wife must repay the loss sustained by the creditors of the husband in consequence of the dowry being repaid before the time. (D. 42, 8, 17, 4 ; D. 42, 8, 10, 12.) A creditor discovers his debtor running away, and takes from him the sum due. If this is before the decree giving the creditors possession, the creditor may retain what he has got ; but if after, he must share alike with the other creditors, (D. 42, 8, 10, 16 ; D. 42, 8, 6, 7.) 2. The alienation or acquittance must be made with the intention of diminishing the assets available for the creditors generally, and it must also have the effect intended. (D. 50, 17, 79 ; D- 42, 8, 10, 1.) If the alienation or acquittance is made without valuable consideration, the act is rescinded, even if the person in whose 1 NiMl dolo creditor facit qui mum recipit. (D. 60, 17, 129.) 3u 1042 LAW OF PROCEDURE. favour it is made is wholly innocent of the fraud ; but if it is for valuable consideration, it is not upset, unless the person m whose favour it is made knows that it is in fraud of creditors. (D. 42, 8, 6, 8 ; C. 7, 75, 5.) If there is a second alienation, made by a fraudulent purchaser to a person ignorant of the fraud, the new purchaser cannot be ousted. (D. 42, 8, 9.) Lucius Titius, being in debt, conveyed all his property to his freedmen, who were at the same time . his natural children. Although the intention of Titius was simply to benefithis. children, and not to defraud his creditors, still, as he knew that he had creditors, and that he alienated all his property, he must be considered to have intended to defraud'them. Hence the children must give up the property to the creditors, although they were not aware of the fraud. (D. 42, 8, 17, 1.) An heir pays legacies under a will. It is then discovered that enough does not remain for the creditors of deceased. 'The creditors can revoke the legacies. {D. 42, 8, 6, 13.) But the legatees can be sued only for what remains to them of the legacies at the time the action is brought, (I). 42,-8, -6, 11.) A father-in-law gives to his son-in-law a dowry, and thereby reduces his assets. The sou-in-law c?.nnot be sued by the creditors, unless he knew the alienation was made to defraud them, because* he is in the position of a purchaser for valuable con- sideration. He probably worild not have married without a dowry ; but if the wife gets the dowry, as upon a divorce, she can be sued by the creditors, because, in respect of her, her father's gift is gratuitous, even if she is ignorant of the father's insolvency. (D. 42, 8, 25, 1.) Remedies for Fraudulent Alienations. 1. Actio Paxdiarut'. , (1.) This action may be brought 6y, creditors, but not by, .the debtor himself or his heirs (C. 7, 75, 4), against a person cognisant of the fraud, although he has ceased to possess the property (D. 42, 8, 25, 1) ; and also against anyone who has in his pos- session any properly of the debtor mthout valuable <:onsideration, even if innocent of the fraud. . (D. 42, 8, 25,, 2.) ,It lies also against the bankrupt himself, although upon this point there was once a difference of opinion. (D. 42, 8, 25, 7.) The action lies also by and, against the heirs of these parties respectively. (D. 42, 8, 10, 25.) (2,) The object is to restore the property with all its produce and every increment (OTitsa). (D. '42, 8, 10, 19 ; D. 42, 8, 2?, 4.) But the defendant may deduct his expenses. (D. 42, 8,, 10, 20.) 2. Iniej-dictuii Fraudatorium. — The distinction bfetvveen this and the former is not known. It, has been suggested that it was the remedy given to the bonorum emptor, as the universal successor of the bankrupt ; but there are difiScultles in the text (D. 42, 8, 10, pr.) in the way of accepting this explanation. 3. Actio Paidiana in factum. If a person has lost possession of anything fraudulently conveyed to him, or has been fraudulently .acquitted of a debt, the remedy is the actio in factum. (D. 42, 8, 14 ; D. 42, 8, 17.) In the latter case, the object of the action is to restore the obligations that have been cancelled. (D. 42, 8, 10, 22.) The action lies for one year .absolutely (D. 42, 8, 6, 14),, and .after, that only for so much as the defendant has retained. (D. 42, 8, 10, 2^..) Third Epoch^-ExECUTioN against Property. The earliest form of, execution of judgment debts was the seizure of the debtQr, and, making him a, slave. .The execution, EXECUTION OF JUDGMENTS. IO43 moreover, remained a7i act of private vengeance, regulated and controlled by the Prsator. The first attempt of the Praetor to get directly at the property of a debtor was in the case of those that fraudulently evaded the process of the court, and his mode of proceeding was by making !the debtor a bankrupt. This entailed the loss of the debtor's poHtical rights. The debtor became infamous. Finally, when curators were appointed, the sale of the debtor's universal succession was avoided ; the cura- tors sold his property in lots, and thus saved his legal character (existimatio). When a person .was willing to pay his debts, but unable, he coiild, from the beginning of the Empire, make a voluntary surrender of his property, and thus escape the stigma of infamy, byt he got only a qualified .discharge from his creditors. So far the Roman 4aw provides two modes of enforcing judgment debts — imprisonment and bankruptcy. These ways Avere practically sufficient, because if a debtor concealed him- self so that his ^creditors .could not catch him to imprison him, he could b.e made a bankrupt. In cases, ho.wever, where a debtor was able to pay, the proceedings by imprisonment or bankiiuptcywere an indirect mode of compulsion only, and there was -wanted some -eimpler and easier method by which the creditor could pass by the person of his debtor and obtain pay- ment out of his property. At length, in the time qf the Emperor Antoninus Pius, judgment debts were enforced directly by the seizure and sale of the debtor's goods by public officials. (D. 42,1, 6, 2 ; D. 42, 1, 31.-) Once introduced, this became the regular way of levying execution for debt when the debtor was not suspected of insolvency. (C. 7, '53, 9.) Anything belonging to the debtor could be takep iji execution, except sla^ves, oxen,, or implements of agriculture. (C 8, 17, 7.) Animals and moveables were, however, to be taken and exhausted before recourse was had to the land of the debtor. (D. 42, 1, 15, 8.) Money due to a debtor could also be seized in execution (0. 7, 53, 5), if it were undisputed, but not other- wise. (D. 42, 1, 15, 9.) The creditors may either sell the debt or. sue the debtor,, as they deem «xpedi^nt. (D. 42, 1, 15, 10.) So.pioney deposited with bankers, and standing to the credit of the debtor, coi(ld,be seized in payment of his debt. (D. 42, .1,16,11.) The sale of goods was .conducted :by the officers of court {pjiciales, cipparitQres). (C. 8, 23, 2.) If the judgment debtor 'I044 LAW OF PROCEDURE. causes the sale to be defeated, the creditor may have the goods adjudged to him as his property, unless the goods were of greater value than the debt. (C. 8, 23, 3 ; D. 42, 1, 15, 3.) D. Extrajudicial Remedies. The legis actio per pignoris capiojiem (by taking a pledge) applies to some matters by custom, to others by statute. (G. 4, 26.) By custom it was brought in for military matters. Soldiers were allowed for their pay to take a pledge from the man that ought to give it them, if he did not give it them : the money given them on account of pay was called aes militare. They were allowed to take a pledge too for the money with which they had to buy their horses : that money was called aes equestre. And again, for the money with which they had to get barley for their horses ; that money was called aes hordearium. (G. 4, 27.) By statute, again, it was brought in for some cases, as by the statute of the XII Tables against the man that bought a sacrifice and did not give the price, and also against him that did not give the price for the beast of burden that another had let ovrt to him expressly in order to spend on a feast — that is, a sacrifice to Jupiter Dapalis. By the Censorial law, 3%3lYa, pignoris capio was allowed the farmers of the State taxes of the Roman people against those that owed them taxes under any statute. (G. 4, 28.) The leges censoTtae were the terms of the contracts entered into between the censors and those who und^ertoot to collect the taxes. In all those cases, when the pledge was taken, a set form of words was used, and, therefore, most were of opinion that {his action too was /egis actio. But some were of opinion that it was not. In the first place, they said that the taking of the pledge was carried out, not in court {extra jus), that is, not before the Prastor, and often even in the absence of the opposite party ; whereas no other actions could be used, except before the Praetor, in the presence of the opposite party. Then, further, a pledge could be taken even on a day that was nefastus — a day,- that is, on which one could not lawfully bring a legis actio. (G. 4, 29.) Sir Henry S. Maine has some very interesting and important ohservations (Early History of Institutions, p. 257) on the place occupied hy pignoris capio as an ancient form of distress, initiating civil proceedings. The analogous practices amont^ ancient nations that he points out^ seem to throw light upon a subject that is left by Gains very obscure, MET IV.— APPEALS; First Period — During the' REPtTBLic. The Roman magistrates during the Republic did not form a hierarchy. They were independent of each other, each being thebretically a delegate of the sovereign power of the people. But the notion of an appeal implies a subordination of courts, and a challenge of the judgment of a lower in a higher court. So long, therefore, as there was no subordination of magistrates APPEALS. 1045 there could be no appeal. Nevertheless, during the Republic two institutions existed that in some, although insufficient, measure, supplied a substitute for a regular system of appeal. I. Provooatio. — When a person was condemned by a cnminal court, he could appeal (provocare) to the Roman people. According to Cicero, this right of appeal existed under the kings ; but a text of Pomponius states that the right of appeal was introduced on the expulsion of the kings, as a limitation of the powers of the consuls, who could not touch the caput of a Roman citizen without the sanction of the people. (D. 1, 2, 2, 16.) In later times, criminal justice was administered by com- missions {quaestiones perpeluae) composed of private citizens selected by the Prsetors, and the appeal to the people fell into disuse. The trial itself was held by the delegates of the people, and there was no longer the same necessity for an appeal as when that formed the only restriction on the arbitrary power of the magistrate. II. Appellatio. — From the peculiar constitution of the Roman magistracy another consequence followed. Each magistrate, as a distinct depository of the sovereign power, had the right to forbid any execution or judicial act of any other magistrate. It was a maxim of the Roman law with reference to partnerships, that in a dispute between two partners, that one who said " No " was to have his way. In like manner, a magistrate could be stopped in any official act by the veto of any other magistrate of equal or higher standing. (D. 5, 1, 58.) Such, a veto was called intercessio, and the formal demand for it by a private individual, appellatio. The tribunes especially had this right of veto over even Consuls and Praetors. They exercised the power either individually or collectively after hearing the grounds of the application. The effect of the veto was purely negative : it stopped for the time the act forbidden, but it substituted nothing in its place, and thus could not operate as an amending power. In many cases, however, this remedy was sufficient. Second Period — During the Empire. During the first days of the Empire the old system con- tinued. The Emperor, in virtue of being made tribune for life, could veto the acts of any magistrate in Rome and Italy. In the imperial provinces the Emperor governed by his lieutenants, from whose decisions an appeal lay as of course to him ; and in 1046 LAW OF PROCEDURE. the provinces reserved for the Senate, the Emperor, in his capacity of Proconsnl, could veto any of the acts of a gover- nor. At first, therefore, the interference of the Emperor in the administration of justice ai'ose from his combining in himself a number of offices formerly hel'd by different elected magistrates. But although the Republican' forms were sci-upnloutely followed, the establishment' of the Empire meant the' abolition of all the independent and' rival mugistracieS of the Repubhc, and the substitution of a single sbvereign. The-want that must have been felt during the Republican period of a proper court of appeal, soon led the Emperbrs to overstep the strict limits of the magistracies they held, and' to make themselves a supreme appellate tribunal" from" all coui-ts throughout the Roman world. I. From whom an appeal lies. At first the only court from which no appeal lay was' the Emperor ; but' after Hadrian, the Senate (D. 42, 2, 1, 2), and after Constantiue, the Prsetorian Prefects gavB final decisions. (C. 7, 62, 19.) These courts might, however, be asked' to re- hear a cause. (0.3, 19; 5'.) The Emperorcould also, in' appoint- ing any judge to determine a cause, provide that his decision should be final. (D.4'9, 2, 1, 4.) In all othei- cases an appeal could be brought. (C. T, 62, 19.)^ Generally appeals from' magistrates in Rome, and from' the judges in certaih provinces, were carried, in the first instance, to the prefect of the city (G. 7, 62, 17 ; C. 7, 62,- 23) ; and from the presidents of provinces to the Praetorian- prefect. (G. 7-, 62, 32, pr.) 11. From what judgtaents aii appeal lies. 1. There was no appeal when the judgment was ipso jure invalid. In a former chapter (p. lOll), cases have been pointed out where a judgment could be treated afe null and void mth- out the necessity of any appeal. Generally no appeal lay from an interlocutory judgment — that is, a judgment upon some subordinate point, arising in the course of the proceedings before the judge gives his final decision on the question brought before him. (D. 49, 5, 4.) The exception was when, if the judge was wrong, the judgment would do an irremediable wrong, as by the unlawful infliction of torture. (D. 49, 5, 2.) 3. No appeal lay from the execution of a judgment, unless the official carrying it out exceeded his authority. (G. 7, 65, 5.) 4. No appeal lay from a judgment by a magistrate against APPEALS. 1047 one of the officers of his court in respect of his official acts, (C. 1, 65, 3.) 5. In other cases, an appeal Was disallowed when vexatious, or causing inconvenient del&y-^as to prevent the opening of a "will, or. the entry of an heir' (D. 49, 5,- 7,, pri)j or to deprive a secured creditor of his right of sale. (D. 49, 5, 7, 2.) There was no restriction- as tO' the value of the subject- matter of litigation. (Cj- 7, 62-, 20.') But it appears there was some limit as to the amount of money ini dispute in cases of appeal to the Emperor. (D. 49, %, 10, 1.) III. Who may appeal. Not merely the parties or their agents could appeal (D. 49, 5, 1 ; D. 49, 9j 1); but sureties that intervened in the suit (D. 49, 1, 5,.pr.)„and others interested. Thus, if one of two co- heirs is sued, and judgment given against him by collusion, the other co-heir can treat the judgment as-Btill and void, or naay appeal if he thinks fit. (D. 49, 1, 5, pr.) So legatees and slaves enfranchised by will can appeal a!gainst a judgment pronounc- ing the will illegal on- the ground of its not having, provided for certain persons {inoffi,ciosu-m),\i they allege collusion.. (D-. 49, 1, 5, I.)' A person against whom, as contumacious, judgment has been given, cannot appeal^. (D.-49,. 1, 23, 3; C. 7,.65, 1.) IV. Notice of appeal. The usual course was for a dissatisfied litigant to give verbal notice of appeal on hearing the judgment given (D. 49,,. 1, 2).; but if he did not, he. preserved his right of appeal by giving notice in writing within a certain time, which was finally fixed by Justinian at ten days. (Nov.. 23, 1 ; D. 49, 1, 3j 4.). V. Security for costs.. If the appeal was frivolous or upon insufficient grounds, the appellant was required to give securities for a penalty of one- third the amount in dispute, in the event of the appeal failing. (Paul, Sent. 5, 33, ].) If good sureties are not forthcoming, the appellant must deposit the amount. (Paul, Sent. 5j 33, 2.) VI. Proceedings to hearing. Unless notice of appeal has been given on hearing judgment (D. 49, l,,2).,,the first step, to hs taken by the appellant was to present to the judge ftom- whom, the appeal was made a written petition of appeal {Libellus Appellatorius). It contained the names of the appellants, the respondents, and the judgment appealed against (D. 49, 1, 1, 4), with a statement of the grounds of appeal. (D. 49, 1, 13, 1.) The appellant was not, 1048 LAW OF PROCEDURE. however, restricted to the reasons so stated, and conld at the subsequent stages adduce other reasons. (D. 49, 1, 3, 3.) The judge, after receiving the petition of appeal, sent it to the Court of Appeal, (D, 49, 6, 1, pr. ; D. 50, 16, 106.) His letter {litterae dimissoriae, apestoli) simply stated the fact that the appellant appealed from his judgment in a particular matter. (D. 49, 6, 1, L) When th« appeal was to the Emperor, the letter was called r«latio. (G. Th. 11, 30, 1.) A judge that improperly refused to admit an appeal was liable to fine (C. 7, €2, 22 ; 0- 7, 62, 31), and the appellant could appeal from such refusal directly to th« court abov-e, if the -court below pertina- ciously refused, (D, 49, 5, -5, pr.) When a jiidge refused to admit an appeal, he ought to state the grounds of his refusal, and give a copy of them in writing to the suitor, (D, 49, 5, 6 ; D. 49, 1, 25.) Within a period, at first of twenty iapoeta, 4, 8.) Soldiers on leaving at the end of their- term obtained, ajWrittep, discharge. If this ^ Contra scri^tum teslimonium nan scriplMm.teslimonium.non fertur. {C. 4, 20, 1.) EVIDENCE. 1055 was lost, a soldier was not precluded from adducing other evidence that he was properly discharged, and entitled to the privileges of a veteranus. (C. 4, 21, 7.) III. Written testimony of persons is occasionally admissible, although those persons could not be allowed as witnesses. It will presently appear that parties to a capse could not be wit- nesses, but the ground of exclusion did not affect statements made by them prior to the litigation. But statements made by a man in his own favour were not binding upon others. Entries made by a creditor in his books (instrumenta domestica, pnvata testatio), unless otherwise supported, do not bind the debtor. {C. 4, 19, 5 ; 0. 4, 19, 7.) The books of a deceased person, or an inventory of debts in his will, are not sufficient to charge a person with a debt to the inheritance. (C. 4, 19, 6.) Justinian enacted that an inventory of his goods in the \)^ill of the deceased should be conclusive on the heir (Nov. 48, 1, pr.) ; but of course _not on the creditors of the estate. (Nov. 48, 1, 1.) (b.) Exclusion of Oral Testimony. I. It is a sound rule to exclude the statements of persons not present as witnesses. The reason is [that testimony given in courts of justice is covered by weighty sanctions ; to bear false witness is a crime. Moreover, testimony given in court is taken with peculiar care, both parties having an opportunity to ask questions in order to (dear up doubts, or to shake the credibility of the witness. It is with good reason, therefore, that hearsay is generally excluded in courts of justice. It would appear that rumour and hearsay were, as a general rule, excluded in the Roman law, but with what limitations it does not seem easy to say. From a somewhat obscure passage (D. 22, 3, 28), it would seem that hearsay .was admitted in regard to an ancient fact, where eye-witnesses could not be produced. II. Testimony is admitted only of facts within the knowledge of the witness, not of his opiuions. How :far this rule was stringently observed in the Roman law it would perhaps not be easy to say, but in one case opinion was necessarily ad- mitted ; in the case, as wjll appear ^presently, of comparison of handwriting. III. Exclusion of witnesses. The only reason for excluding a -fitness, as distinguished froni.tbe.cxclusiop. of irrelevant fact^,,is that the witness is not trustworthy. But the incredibility of a witness is a question of degree, and although it ought properly to affect the weigbt to be given to his testimony, is no reason why that should not be admitted. The moment we distinctlyrealise that the object of judicial investigations is ithe discovery of truth, it becomes 1056 LAW OF PROCEDURE. clear that the wholesale exclusion of classes of witnesses, upon the ground of antecedent incredibility, admits of no justifica- tion. But from the manner in which civil judicature grew up, it may be inferred that the discovery of truth was by no means an exclusive idea with those who controlled the forms of pro- cedure ; but that the ancient point of view rather was that the object of a trial was to put an end to a mere private dispute. An enumeration of the classes of persons excluded from giving testimony, discloses the motives that influenced the makers of Roman law. A. Persons absolutely incapable of giving testimony, 1. Persons destitute of understanding. In civil causes, witnesses must be above fbe age of puberty, (t). 22, 5, 3', 5.)' In criminal cases, witnesses roust be twenty years of age. (D. 22, 5, 20.) 2. Persons convicted of crime, unless pardoned (D. 22, 5, 20), ot letting themselves out to fight with wild beasts, or prostitutes, or persons convicted &i receiving bribes to give or not to give testimony (D.'22, 5, 3, 5) ; women convicted of adultery (D. 22^ 6, 18), and officials taking bribes or extorting money,, cannot be witnesses, (D. 22, 5, 15, pr.) 3. Pagans, Manichaeans, and other heretics (Smiaritce, /SaraiM-sto, Montanistcty Tascodrogi, Ophitcej were excluded by Justinian's legislation. (C. 1,- 5, 21.) It would appear that, from an opposite feeling, it was. considered degrading to the exalted order of bishops to appear in the witness-box (C- 1, 3, 7) ;. Iwit as this privilege might occa-- sionally be inconvenient for themselves, Justinian kindly invented a plan by which their dignity might be spared without the danger of compromising their interests. A bishop could not be summoned as a witness, but an oflicer of court was to be sent to take down his testimony, and report it to the judge.- (Nov. 12S, 7.) B. Persons excluded in certain cases only.- 1. Slaves were not admitted te'give evidence, unless when the testimony available' was insufficient. (B. 22, 5, 7.) A slave could not be examined for or against his master, but he might in respect of facts affecting himSelf. (D. 22, 3, 7 ; C 4, 20, 8.) 2. The plaintiff and defendant in a suit could not be witnesses.^ (C. 4, 20, 10.) 3. Persons closely related to the plaintiff or defendant were also excluded. (D. 22, 5, 6.) Thus parents and children were iriadmissible fop' or against each other (C.. 4, 20, 6 ; D. 22, 5, 24) ; and si> also patronsand freedraen. (C. 4, 20, 12.) 4. Persons engaged as accuser and accused in a criminal proceeding could not give evidence against each other in a civil suit- iintil the end of the criminal trial. (Nov, 90, 7.) 5. An advocate could not give evidencein a cause ill' which hs'had been engaged, (D. 22, 5, 25.) 6. Jews and Heretics, except those above m'entioned, were admissible as vititnesses ; but only in causes where neither plaintiff nor defendant was orthodox. (C. 1, 5, 21.) c. Sufficiency of TESTiMONt. Generally speaking, the Roman law required two witnesses, ' NuUua idoneus teitis in re s«o ititeUigiiur, (D. 22, 5, 10.) EVIDENCE. 1057 at least, to prove any fact. (D. 22, 5, 12.) But prior to Con- stantine it would appear that the rule was not peremptory. That Emperor, however, enacted that in no case should the testimony of one witness, however eminent he might be, suffice to prove a fact. (C. 4, 20, 9, 1.) In certain cases a larger number even was necessary. Thus, in a question whether a person were freeborn, five witnesses must be produced, unless there was documentary evidence, in which case three sufficed. (C. 4, 20, 15, 1.) Apart from this artificial rule, which, considering the number of persons excluded from the witness-box, must have caused many failures of justice, the views taken by the Romans as to the weight and sufficiency of evidence were sensible. A rescript of Hadrian points out that no rigorous rules could be laid down, but that the judge ought to listen to every admissible kind of evidence, and form the best conclusion he could. (D. 22, 5, 3, 2.) Callistratus recommends judges to examine the weight of testimony in each particular case ; to look to the status of the witness, whether he is a person of rank or not ; whether he is a man of blameless life or of bad character ; whether he is well- off or needy, and likely to sell his testimony ; whether he is friendly or hostile. (D. 22^ 5, 3, pr.) tr. Production of Testimony. I. Upon what persons lies the burden of producing testimony ? This question is to a great extent one of detail, and special rules affecting the burden of proof have been mentioned already in several instances. There are, however, one or two leading general rules that may here be conveniently stated. 1. The burden of proof rests on him that affirms, not on him that denies. (D. 22, 3, 2.) The actor must proTe the facts alleged in the demonstratio ; the reus must prove the facts alleged in the exceptio. (D, 22, 3, 21 ; 0. 2, 1, 4 j D. 22, 3, 19, pr.) If the question is that A. belongs to a particular gem, A. must prove the fact. (D. 22, 3, 1.) Does A. owe money to B. ? B. must prove that the money ia due. If that is proved, but A. affirms that he has paid the debt, A. must prove the payment. (C. 4, 19, 1.) 2. In a suit, the burden of proof lies generally on the person that would fail if no evidence were produced on either side. Generally the plaintiff must lead evidence. (D. 22, 3, 21 ; 0. 4, 19, 8.) But if he establishes such facts as would, in the absence of special circumstances, entitle him to 1058 LAW OF PROCEDURE. succeed, it is for the defendant to satisfy the judge that these circumstances exist. (D. 22, 3, 19, pr.) A. is in possession of a fartn, and B. sues for it, claiming it as his own. B. must prove his title. (C. 4, 19, 2.) A. sues B. on a contract of sale. B. admits the sale, but affirms that the contract was made through fraud. B. must prove the fraud. (D. 22, 3, 6.) Titius promises by stipulation to appear in court. He fails to appear, but excuses himself from the penalty for non-appearance on the ground that he was prevented by illness. He must prove that he mas ill. (D. 23, 2, 19, 1.) A. sues B. on a stipulation. B. admits the stipulation, but says A. released him by verbal agreement {pactum). B. must prove the agreement. (D. 22, 3, 19, pr.) A testator bequeathed to Gaius a slave belonging, not to himself, but to Titius. Gaius claims the slave from the heir. He must prove that the testator knew that the slave was not his property. (D. 22, 3, 21.) A testator leaves to Titius a legacy of 100 jxurei. The heir pleads that after deducting his Faloidian fourth he cannot pay more than seventy-five aurei. He must prove the allegation. (D. 22, 3, 17.) Intimately connected with the question of Burden of Proof is the topic of Legal Presumptions. Jurists are accustomed to specify three kinds of presumptions, of which only one has any right to a place in the law of evidence. The law may adopt one of three attitudes with reference to any alleged fact. (1) It may be entirely neutral, inclining neither to believe nor to disbelieve the assertion, and leaving to the party interested in creating a belief of the fact to produce evidence. (2) The judge may be directed, in the absence of evidence to the con- trary, to prefer either to believe or to disbelieve the alleged fact. (3) The judge may be required to believe or disbelieve the alleged fact, and to admit no evidence that would tend to produce a contrary conviction. Thus, when, in the absence of other evidence, a defendant is put on his oath, his answers are held absolutely to bind the interrogator. If the attitude of the law is one of neutrality, any allegation tending to convince the judge that a particular state of facts existed is a praesumptio facti. This has, therefore, really no place in the law of evidence. Again, in the third case, where the law peremptorily requires cfsrtain facts to be taken as true, these facts belong really to the substantive law. They are of the nature of investitive and divestitive facts. Such facts are said to be praesumjjtiones juris et de jure. There remains then only the second class {praesumptiones juris) to be considered in the law of evidence. Such a presumption is ordinarily said to shift the bui-den of proof; but it would be, perhaps, more accurate to say that it determines the burden of proof, for to say that a man has such a presumption in his favour, is only another way EVIDENCE. 1059 of stating that the burden of proof rests on the opposite party. In most cases legal presumptions (praesumpiiones juris) are drawn fvom the ordinary course of events. It is presumed that every formal transaction — as, for example, emancipation (D. 22, 3, 5, 1) — is correctly performed. Generally that is so; and besides, it is expedient to throw the burden of proof on the person that questions a legal transaction. In other case presumptions are admitted, because they lead to certain results desired by the legislator. The Roman law appears anciently to have presumed that every person was a minor (D. 22, 3, 13) until the contrary was proved ; the English law presumes that every person is of age until the contrary is proved ; while the later Roman law adopted an attitude of neutrality. II. Production of Documents. 1. Generally speaking, a suitor could not call upon his adversary to produce any documents. The Roman law, in this respect, adhered to the theory that litigation is a form of private quarrel, and that each party ought to make out his case without help from the other. (C. 4, 20, 7.) Especially in criminal cases, we are told that neither law nor equity per- mitted an accuser to inspect documents in the hands of the defendant. (G. 2, 1, 2.) But a defendant sued for money could demand an inspection of the creditor's books (C. 2, ], 5), although the creditor could not demand the production of the debtor's books. (C. 2, 1, 8.) Again, money-dealers (at^gentarii) were compelled to produce their books. (D. 2, 13, 4, pr. ; D. 2, 13, 9, 3.) 2. As a general rule, persons that could not refuse to appear as witnesses in a cause, could not refuse to produce documents. But they were not obliged to produce any documents if it would do them harm. (C. 4, 21, 22.) 3. The authenticity of documents was proved, in the first instance, by the attesting witnesses. If the witnesses were dead, comparison of handwriting was allowed. But no docu- ment, Justinian enacted, was to be used for the purpose of comparison, unless it were proved to be in the handwriting of the person in question by three attesting witnesses, or were made Avith the formalities of a public document. Apparently the determination was left to experts, who were required to take an oath that they would give an impartial opinion. (C. 4, I060 LAW OF PROCEDURE. 21, 20.) Also documents produced by a party himself could be used to compare handwriting. (Nov. 49, 2, 1.) III. The Production of Witnesses. 1. Certain persons, although competent witnesses, could not be compelled to appear. A magistrate could not be summoned, but if present in court he could not refuse to give his testimony. (D. 22, 5, 21, 1.) Old persons, the sick, soldiers, persons absent on the service of the State, could not, as a general rule, be compelled to appear as witnesses. (D. 22, 5, 8.) Persons related by afl&nity, and cousins, and even the children of cousins, could not be compelled to bear testimony against each other. (D. 22, 6, 4.) 2. Summonses to witnesses were issued by the judge. If the witnesses lived in the place, they must appear to be ex- amined ; but if they were at a distance, provision was made for taking their testimony by the procurators of the parties before a judge in the place. (C. 4, 20, IS, pr.) The travelling expenses of the witnesses must be paid by the party calling them. (C. 4, 20, 11.) They could not be detained more than fifteen days. (C. 4, 20, 19.) 3. The sanctions of testimony. Up to the time of Constan- tine, it would not appear to have been essential that a witness should be sworn (C. 4, 20, 9,. pr.), although doubtless as a matter of practice little or no credit was attached to a witness that was not prepared to take an oath. In certain cases torture was used. Defendants in criminal cases, if there was considerable but not suiBcient evidence against them, could be put to the torture to induce them to confess. (D. 48, 18, 1, 1,) But in civil causes no torture was allowed, except of slaves, and then only when the truth could not otherwise be ascertained. (D, 48, 18, 9 ; C, 9, 41, 9.) A belief in the efficacy of torture was widely entertained in antiquity. (D. 48, 18, 8.) In cases where a slave could not be a witness he could not be tortured, (D. 48, 18, 1, 10 ; C. 9,4,1,7.) 4. In the examination of witnesses, leading questions seem to have been avoided. Thus it is said, when a slave was tortured, that he should not be asked whether " Lucius Titius killed a man," but generally, " who killed the man 1 " The former, it was remarked, was a suggestion rather than an interrogation. (D. 48, 18, 1, 21.) APPENDIX. No. I. CRIMINAL LAW. Public proceedings {■publica judicid) are not taken by actions {actiones), nor are they in any point like any of tlie other proceedings of which we have spoken, but are begun and carried out in a manner widely different. (J. 4, 18, pr.) They are called public, because anyone of the people is for the most part allowed to follow them up. (J. 4, 18, i,) Some public proceedings are capital, some are not. We call those capital that visit the offender with the last punishment of the law, or that forbid him fire and water, or that deport him {deportatio), or send him to the mines. All others that in any way inflict infamy and money loss are indeed public, but are not capital. (J. 4, 18, 2,) The public proceedings are as follows (J. 4, 18, 3) : — The lex Julia Majestatis (statute on treason) exerts its vigour against those that have raised up anything against the Emperor or the Common- wealth. By its penalty the guilty man endures loss of life and his memory is condemned even after death. (J. 4, 18, 3.) This statute was passed under Julius Caesar (p. 57). The lex Julia de Adulteriis (to restrain adultery), again, punishes with the sword not only those that rashly pollute another's marriage, but those too that dare to employ their abominable lust on males. By the same statute, also, the foul crime of debauchery is punished, as when a man without force debauches a virgin or a widow that is living an honourable life. The penalty this same statute inflicts on offenders is, if they are of honourable standing, the confiscation of half their goods ; if they are of low degree, bodily chastisement and banishment {relegatid). (J. 4, i8, 4.) This statute belongs to the reign of Augustus (b.o. 18). The lex Cornelia de Sicariis (on assassins), again, pursues with the sword of vengeance men-killers, or those that go about with a weapon in order to kill a man. Weapon {ielum), as our Gaius has left in writing in his inter- pretation of the statute of the XII Tables, is the common name for what is sent from a bow ; but it means also anything that is sent by anyone's hand. It follows, therefore, that this name includes a stone as well, and wood, and iron. It is so called because it is sent to a distance, and is formed from the Greek word rjjXSu (afar off). This meaning we can find in the Greek name too ; for what we call ielum they call Ss>ios, from ^aXKiHoii (to be thrown). I062 APPENDIX. Xenophon calls our attention to this, for he has written thus : — "And the weapons (/3eX>i) were carried together, spears, arrows, slings, and very many stones as well." Assassins {sicarii) are so called from sica, which means an iron knife. By the same statute also poisoners are capitally condemned, who, by the hateful arts of poisons and magic spells they whisper, have killed men, or who have publicly sold evil drugs. (J. 4, 18, 5.) The leges Cmnelioe were passed by Sulla about B.C. 81. Another statute, next, the lex Pompeia de Parricidiis (B.C. 55) (on the murder of blood relations), pursues a crime the most unfeeling with an unprecedented penalty. It provides that if a man hastens on the fate of an ascendant or a son, or in any way attempts anything included under the designation /arrzcz'^ZKOT, whether he dares it secretly or openly, he shall be punished with the penalty of parricidiimi} further, that if anyone wilfully brings about such a crime, or is an accomplice, then, even although he is an outsider, the result shall be the same. The penalty is as follows : — He is not to be subjected to the sword, nor to flames, nor to any other regular punishment, but he is to be sewn up in a sack with a dog, and a cock, and a viper, and an ape, and, shut up in this cramped place of death, is (accord- ing to the kind of district) to be thrown into either the sea, if near, or a river, that all use of the elements he may begin even in life to lack, and that the sky may be taken from him while he still lives, and the earth when he is dead- But if a man kills other persons joined to him by the ties of kinship or affinity, he will endure the penalty of the statute cm assassins {lex Cornelia de sicariis). (J. 4, 18, 6.) The lex Cornelia de Falsis (on forgery), again, also called testamentaria (on wills), imposes a penalty on the man that writes, seals, publicly reads, or foists in a will or other document that is forged ; or that makes, cuts, or moulds a spurious seal wilfully and maliciously. The penalty under that statute is, — for slaves, the last punishment of the law, as upheld in the statute on poisoners and assassins ; for freemen, deportation. (J. 4, 18, 7.) Again, the Icx JuKa de vi Publica sen Privata (on violence either public or private) rises up against those that commit violence, either armed or without arms. If it is armed violence that is charged, then deportation is imposed under the statute on pubUc violence ; if without arms, confiscation of the third part of the offender's goods. But if the violence has been used to ravish a virgin or widow, or woman devoted to religion, whether she has taken the veil or not, then both the perpetrators and those that have aided the fou! crime are punished capitally. So a constitution of ours determines, from which it is possible to learn all this more plainly. (J.. 4, 18, 8,) The lex Julia Peculattis (against embezzlement) punishes those that steal money or property belonging to the State, or consecrated or devoted. If it is judges that have actually, while holding office, made away with State moneys, they are visited with capital punishment ; and not they alone, but those also that have lent them aid in this, or that have knowingly received from them the property made away with. But all others that fall under this statue are subjected to the penalty of deportation. (J. 4, 18, 9.) This and the former lex Julia were passed under Caesar or Augustus, it is uncertain which. CRIMINAL LAW. IO63 There is, too, among public proceedings, a lex Fabia de Plagiariis (on kidnappers), that under the sacred constitutions imposes a penalty, sometimes capital, sometimes lighter. (J. 4, 1 8, 10.) The lex Fabia is an old statute (date unknown) mentioned by Cicero. There are, besides, among public proceedings, the lex Julia Ambitus (on bribery), the lex Julia Repetundarum (against extortion by provincial governors), the lex Julia de Annona (on raising the price of food), and the lex Julia de Residiiis (on incomplete accounts). These speak of certain special offences, and do not impose loss of hfe, but subject those that neglect their precepts to other punishments.- (J. 4, i8, 1 1.) This we have set forth about public proceedings, that you may be able to touch them with the tip of the finger, and as it were to point them out. But beside this, you may attain to a more studious knowledge of them, if God graciously favours you, from the larger books of the Digest or Pandects. Q. 4, 18, 12.) There is a stage in human progress when the conceptions represented by the words Sin, Crime, and Civil Wkons are not distinguished. The la;w,- in so far as what may properly be termed law, has disengaged itself from custom, views conduct simply in a general way as reprehensible, and visits it with penalties that from the standpoint of a rational jurisprudence may be considered capricious, although not inexplicable. Doubtless in a rough way the offences visited with penalties in early codes were in the main the acts that were found most prejudicial to society, and doubtless also the penalties awarded were intended to prevent, and partially had the effect of preventing, harmful conduct. But of all the problems that the human race has had to confront, the greatest perhaps is to know what conduct is really injurious to mankind, and what is the best way to secure good conduct. Scarcely less inciportant is it to know the degree in which conduct is iujurioiis. On all these points, early societies had every- thing to learn ; and, as was unavoid able, the lesson was acquired slowly and imperfectly. It would be rash to assume that even now the classification of wrongs and offences is satisfactory or final ; and it is universally admitted that the art of punishment, or rather o^ prevention, is still far from perfect. The first great step in the progress of law is when the distinction between acts that are harmful to human society, and Acts that may not be so, but are hateful to super- natural beings, is thoroughly graSped. The distinction between sin and crime, between an offence against some god, and an offence against the State, lies at the root of all legal development. It is impossible to make any advance towards a rational classifica- tion of offences, until the elementary conception of an offence — as an act injurious to man living in society — is thoroxighly apprehended and firmly applied. The distinction is illustrated in a very striking manner by the way in which perjury was dealt with in the Roman law. Perjury is the sin of invoking a divine being to attest a falsehood. False testimony is the crime of perverting the administration of justice. The Roman law appears from the earliest times to have contained provisions for punishing false testimony ; but it was not considered necessary to punish perjury by human laws. It was the business of the gods, said Tacitus, to punish those that despise them ; and the same sentiment appears in a constitution of the Emperor Alexander. (C. 4, 1, 2.) The distinction between crime and civil wrong naturally emerges at a later period. The difference between an offence against the State and an offence merely against the individual that suffers, although very clear and important, is not apprehended at an early stage in the history of law. Even after it is recognised, a long period generally elapses before a proper distribution of offences is made. Thus theft in the early Roman law was treated purely as a civil wrong ; and even to the latest period, petty 1064 APPENDIX, thefts were not brought under the lash of the criminal law. The true distinction between crime and civil wrong to be found in the remedy that is applicable. The aim of the Civil Law is to give redress to a sufferer, in the form either of restitu- tion or of compensation. The aim of the Criminal Law is punishment. The 'ptnal actions of the Eoman law occupy a middle position ; the penalty of fourfold damages inflicted on a thief caught in the act went far beyond the requirements of compensation, but yet fell short of the severity of the Criminal Law. Theft, however, is more than a private wrong ; it destroys the general feeling of security that is a necessary basis of the accumulation of wealth. When theft comes to be regarded in this light, it passes over from the category of private wrongs, and takes a, place amongst offences against the State. In classifying the Criminal Law, the first broad division to be adopted is that between Substantive Law and Adjective Law ; between the law of offences, and the law of criminal procedure. Criminal P;:ooedure has been already considered : see pp. 55-60. The substantive Criminal Law is simple -; it consists of an enumeration of offences and punishments ; in other words, of the acts forbidden, and of the penalties of dis- obedience. It is convenient to start with a general rpview of the liind and degree of punishments. Offences are divided into two leading groups. One group consists of the offences that are conterminous with the Civil Law, where the same acts are at once a civil wrong and a, crime. Here the offence is an injury to some specific individual, as well as harmful to society ; it is a violation of some particular person's right, as well as a crime against the State, The second gyoup consists of offences against the State solely, which are punished — that is to sa.y, not becaBse any specific individual is hurt, but because they *re considered injurious to the State. The same distinction may be expressed with moi;e precision in the language sanctioned by Austin. He distin- guishes absolute from relative duties. Relative duties correspond to rights belonging to specific individuals ; absolute duties do not correspond to any such rights. In the Civil Law every duty is created in favour of some specified person or persons, who thus have a right to cl^im the acts or forbearance constituting the duty. Offences may therefore be subdivided thus : — (1) "Violations of absolute duties, or offences solely against the State j and (2) Violations of relativp (Jutjes, offences that are also violations of rights of specified individual, Ppnishments. The punishments of the Roman law need be considered only as they existed during the Empire. They wej:e divided into two classes, according as they did or did not affect the caput of t}\e .?w;,cused. The term caput is to be understood in the large sense already explained {p. 215), as including not merely life but freedom and citizenship. A punishment th^t inyolyed the forfeiture of the rights of citizenship was considered capital. (P. 48, 18, 2.) I, Capital Punishments, 1. The punishment of death was generally termed the extreme penalty of the law (summum suppUcium) . Various w^ys of executing criminals existed at different times. Under the Republic we have the punishment of burying alive, in the case of vestal virgins that violated their v.oy of chastity ; and the XII Tables direct that false wit- nesses should be hurled from the Tarpeian Rock. In the time of Paul the chief modes were crucifixion (of slaves), burning and decapitation. (Paul, Sent. 5, 17 3.) Constantino abolished crucifixion out of regard to the memory of the Founder of the new religion that he adopted. A revolting sentence was to condemn the criminal to fight with wild beasts. This was either in the form ad bestias or ad gladium in which the victim was to be thrown to the wild beasts at once or within a year • or in ludum., when the condemned had a chance of life, and after five years might even CRIMINAL LAW. I065 regain freedom. (Mos. et Rom. Leg. Collat. 11, 7.) These repulsive forms of punishment also were abolished by Constantine. (C. 11, 43, 1.) The XII Tables provided that only the Comitia CenturiMa should pass a sentence affecting the caput of a citizen. At an early period the Comitia Tributa came to overshadow it ; and the Assembly, which towards the end of the Republic was the only criminal tribunal, was thus unable to award punishments of sufficient severity. 2. Deprivation of freedom was up to the time of Justinian (Nov. 22, 8) the result of condemnation to the mines. (D. 48, 19, 12.) This was either in metaUum or m opus metalli. In both cases the punishment was for life, but there was a difference in severity, especially in the weight of the chains with which the prisoners were loaded. (D. 48, 19, 28, 6 ; D. 48, 19, 8, 6,) 3. Forfeiture of citizenship was a consequence of banishment during the Republic (aqua et igni interdictio). During the Empire the same eff'ect followed on deportation (deportatio in insulam) and condemnation on public worlts {in. opus perpetuum). (C. 9, 47, 1.) These sentences were for life, and involved forfeiture of the property of the persons convicted. (D. 48, 19, 18, 1 ; D. 48, 22, 1 5.) II. Non-Capital Punishments, 1. Selegatio was either for a time, or for life, or to an island. It differed from deportation in being generally to a mor§ pleasant island. Deportatio ' also carried confiscation of property, unless the contrary was stated in the sentence ; relegatio did not involve the loss of property unless stated in the sentence. (Heren. Modest. Frag. 2.) Another term sometimes used is eci'Zram ; it was either relegatio or lata fuga, that is restriction to a particular place ; or it was a prohibition from entering a particular place, (D. 48, 19, 5,) 2. Corporal punishment — as by flogging or beating with sticks. (D. 48, 19, 7.) 3. Imprisonment was sanctioned only for a time, not for life, (D. 48, 19, 8, 9.) 4. Fines. 5. Degradation of rank— as the removal of a person from the Senate (D. 1, 9, 3), or from the cvria of a municipality. (D. 48, 22, 7, 20.) 6. Suspension from practice, as of an advocate, {D. 48, 19, 9, pr.) Violations of Absolute Ddties. I. Offences against External Security, The following oflfences may be included under this head : — 1. A Roman citizen bearing arms against his country, or deserting to the enemy ; or 2. Causing a Roman army to be caught in ambush or surrendered to the enemy ; or 3. Preventing the success of the Roman arms j or 4. Exciting a friendly State to make war on Rome ; or 6. Aiding an enemy by giving him arms, weapons, horses, provisions, or money, or causing such things to be given to be used against the Roman people ; or 6. Entering into communication with the enemy, or giving him advice to be used against Rome. In ancient times such an offence was called perdmellio ; under the Emperors, how- ever, more generally crimen laesae majestatis. The lex Julia Majestatis defined those offences and affixed the penalty of banishment (aqua etigni interdictio). In the time of Paul the punishment was death. (Paul, Sent, 5, 29, 1.) In later times beheading was the rule, unless the offences were less serious ; ttus, harbouring a fugitive enemy was punished only with deportation. • (D. 48, 19, 40.) The crime of treason (majestas) had certain peculiarities : — (1.) There was no action or penalty for malicious prosecution. (2.) Persons prohibited in other cases from being accusers could prosecute for treason. (D. 48, 4, 7, pr.) I066 APPENDIX. (3.) The defendant, of whatever rank, could, if necessary, be put to the torture. (C. 9, 8, 4.) (4.) Slaves could be examined against their masters. (C. 9, 8, 7, 1.) (5.) The prosecution went on after the death of the accused, in order that the Exchequer might obtain his property if he were found guilty. (C. 9, 8, 8.) II. Subversion of the Government or Usurpation of its Prerogatives. 1. Under the Empire, the worst offence of this kind was » plot or attack on the life of the Emperor. To question the choice of a successor made by an Emperor was next to sacrilege, and punished by an odious form of death. (C. 9, 29, 3 ; D. 48, lo, 6, pr.) But mere verbal insults were not considered treason (D. 48, 4, 7, 3 ; Paul, Sent. 5, 29, 1) ; for, said the Emperors Theodosius, Arcadius, and Honorius, in language that is a standing rebuke to pusillanimous tyrants, if the words are uttered in a spirit of frivolity, the attack merits contempt ; if from madness, they excite pity ; if from malice, they are to be forgiven. (C. 9, 7, 1.) 2. An attack on the life of a member of the Consistorium. (C- 9, 8, 5.) 3. Causing anyone to take an oath for the subversion of the Government. (D. 48, 4, 4, pr.) 4. Levying war or raising an army without the authority of the Emperor, (D. 48, 4, 3, 1.) 5. Conspiracy to kill hostages without the authority of the Emperor. (D. 48, 4, 1, 1.) All these offences are treason (inajesfas), and punishable in the way mentioned above (I.) III. Offences against Pufclic Tranquillity. 1. A seditious gathering or conspiracy. (Paul, Sent. 5, 22.) 2. When an armed assembly takes possession of any public plaice. These offences also were treason. IV. Offences against the Public Eorce. 1. Desertion by a soldier. (D: 48, 4, 2.) 2. Soliciting or exciting soldiers to make a tumult or sedition. (D. 48, 4, 1, 1.) These offences also were treason. V. Offences against the Administration of Justice. 1. Conspiracy to kill a magistrate iff treason. (D. 48, 4,- 1,1.) 2. Setting free a person that has pleaded guilty to a criminal accusatfon is also treason. (D. 43, 4, 4, pr.) 3. Forcibly to prevent trials being held, or to make a magistrate act contrary to his judgment, was prohibited by the lex Julia devi, (D. 48, 6, 10.) 4. To take money either to accuse or not to accuse a person of a criminal offence. (D. 47, 13, 2.) 5. To procure the conviction of a person of an offence punishable with death {Paul, Sent. 5, 23, 1) by false testimony, was forbidden by the lex Cornelia de Sicariis. The punishment was, death for common people j deportation, for persons of rank. (D. 48, 8, 16.) 6. A witness wrongfully giving or withholding testimony was punishable with deportation. (D. 48, 10, 1, 2 ; D. 48, 10, 1, 13.) Perjury was not a crime, but a person swearing ■per genium Priiicipis falsely was considered to offer an indignity to the Emperor, and was to be beaten with rods. (D. 12, 2, 13, 4.) 7. Corrupting a judge, or causing him to be corrupted, was punishable under the lex Cornelia de falsis. (D. 48, 10, 21.) 8. Maliciously to accuse another of a crime. This waB> the offeuce of CixtamTOd. (D. 48, 16, 1, 5.) By the lex Semmia the punishment was branding with the letter K. CRIMINAL LAW. IO67 (D. 48, 16, 1, 2.) This was abolished by Constantine (0. 9, 47, 17), and the later punish- ment was either relegation or degradation of rank. (D. 47, 10, 43.) 9. To conceal a crime, or by collusion with the accused procure his acquittal, con- stituted the offence of Praevaricatio. (D. 48, 16, 1, 6.) The punishment was at one time the same as the accused would have got (D. 47, 15, 6), but in later times it was left to the discretion of the judge. (D. 47, 15, 2.) 10. Improperly to abandon a prosecution was Tergiversatio (D. 48, 16, 1, 1), under the Senatus Conmltum Tui-pillianum (reign of Nero). (D. 48, 16, 1, 7.) That fixed a penalty of five librae of gold, but in later times the offence was punishable at the discretion of the judge. (C. 9, 45, 2.) VI. Offences against the Exchequer. 1. Exacting taxes without authority was made punishable by the lex Julia de vi. (D. 48, 6, 12.) 2. The lex Julia Peeulatus made it an offence to add anything to any gold, silver, or bronze belonging to the State. (D. 48, 13, 9, 2.) The punishment was, for common people, the mines ; for persons of ranlf, exile. (D. 48, 13, 6, 2 ; D. 48, 19, 38.) 3. A person that coointerfeits, breaks, melts, scrapes, or falsifies coins, gold or silver, or refuses to take properly-stamped coin's (unless when they are adulterated), is, if of rank, to be deported ; if not, to be sent to the mines or crucified. (Paul, Sent. 5, 25, 1.) Constantine made the punishment burning to death. (C. 9, 24, 2.) 4. Any person converting to his own use money telonging to the State or entrusted to him for the use of another, was fined under the kx Julia de residuis. (D. 48, 13, 2 ; D. 48, 13, 4, 5.) VII. Offences by Servants of the State. 1. The refusal of a governor of a province to give up his place to his successor was held to be treason by the lex Julia. (D. 48, 4, 2. ) 2. A person having lawful authority causing a Koman citizen to be killed, beaten, or put to torture, pending an appeal that has been made, was punished with death if of humble station ; if a person of rank, with deportation. (Paul, Sent. 5, 26, 1.) 3. A magistrate or president of a criminal court receiving money to cause a person to be accused of a capital crime (D. 48, 8, 1, ]), was punished with death ; or, if he were a person of rank, with deportation. (D. 48, 8, 3, 5.) 4. Any public servant taking any money or any article of value to act in violation of his public duty was punished under the lex Julia repetundarum with deportation or exile. (D. 48, 11, 7 ; D. 48, 11, 6,2; D. 48, 11,7, 3.) 5. A. judex tho^t wilfully gave judgment against an enactment brought under his notice was punishable with deportation. (Paul, Sent. 5, 25, 4.) 6. An advocate betraying his client was punishable with the penalty that the client was exposed to. (D. 47, 15, 1, 1 j D. 47, 15, 6.) VIII. Offences in respect of Weights, Measures, and Markets. 1. Those who sold (bread) by false weights were subject to relegation according to a decision of Hadri.in. (D. 47, 11, 6, 2 ; D. 48, 10, 32, 1.) 2. Any person doing anything or entering iilto any contract to raise artificially the price of provisions was punished under the Ux Julia de Annona (D. 48, 2, 2, pr.) with a fine of 20 aurei. (D. 48, 12, 2, 2.) Those who kept murchandise out of the market to enhance the price {Dardanarii) were prohibited from trading, or were relegated. (D. 47, 11, 6, pr.) IX. Offences against Decency or Morals. 1. Stuprum is the offence of having connection with a free and respectable woman except in marriage or concubinage. (D. 48, 5, 34, pr.) The punishment by the lex Julia de adulteriis is not known ; in the time of Justinian it was corporal punishment I068 APPENDIX. and relegation for the common people, and forfeiture of half their property for persons of rank. (J. 4, 18, 4.) If the girl was under puberty, the punishment in the first case was the mines, and, in the second, relegation. (D. 48, 19, 38, 3.) 2. Sodomy was punished under the leae Julia with forfeiture of goods (Paul, Sent. 2, 26, 13) ; under the Christian Emperors, with death by burning. (C. Th. 9, 7, 6 ; C. 9, 9, 31.) 3. Incest was punished with deportation. (Paul, Sent. 2, 26, 16.) X. Offences in respect of Religion and Witchcraft. 1. Prophets were to be beaten and expelled from the city ; if they came back, they were to be imprisoned or deported. (Paul, Sent. 5, 21, 1.) 2. Persons consulting with reference to the life of the Emperor were punished with death. (Paul, Sent. 5, 21, 3.) 3. Those who offered sacrifices to injure their neighbours {malejiei)^ even if no evil result followed (D. 48, 8, 14), were punished under the lex Cornelia de Sicariis. (D. 48, 8, 13.) 4. Those who took part in the exercise of magical and diabolical arts were to be crucified ; the magicians themselves, to be burnt alive. (Paul, Sent. 5, 23, 17.) 5. Even to keep books on the subject was a crime ; the books were to be burned and the owners severely punished. (Paul, Sent. 5, 23, 19.) 6. Paul says that persons introducing new kinds of worship, unknown to custom or reason, disturbing weaker minds, were to be punished, if persons of rank, with depor- tation ; if not of rank, with death. ((Sent. 6, 21, 2.) Violations of EEtATivE Ddties. In classifying offences, the same order may be observed as has been followed in the Civil Law. But a preliminary question must be noticed. When a crime was at once an offence against the State and also a violation of the right of a specific individual, is the right of the injured individual to compensation to be postponed to the claim of the State for punishment ? The general rule in the Eoman law was, that when a civil and criminal remedy concurred in respect of the same offence, either or both might be used. Thus when a person sued a thief and recovered a penalty, he could, if the case admitted it, afterwards prosecute the thief criminally. Again, if a suitor recovered damages from a false witness, he was not precluded from subsequently prosecuting him for false testimony. (C. S, 31, 1.) But it wjas held that the punishment of the criminal ought to take precedence of the civil remedy (C. 3, 8, 4) ; and when a civil trial disclosed a crime, the civil proceedings were delayed until the criminal prosecu- tion had first taken place. (P. 47, 10, 7, 1-) This suggests the question, whether if the crime was capital, and the punishment included confiscation of the goods, there could be any fund out of which a suitor in civil proceedings could satisfy his claim ? Apparently in this case the sufferer would be deprived of lis remedy. (a.) Eights in rem to one's Person, I. Immunity from Bodily Harm, 1 . Parricide is defined by the lex Pompeia de Parricidiis to be the crime of wilfully causing the death of an ascendant, a brother, sister, «iunt, uncle, or cousin ; a husband, wife, or relation by affinity, os patron : also when a mother killed a child, or grand- father a grandchild. (D. 48, 9, 1.) Constantino added the killing of a son by a father. (0. 9,17,1.) The punishment mentioned by Justinian (J. 4, 18, 6) was anciently reserved for the murder of ascendants, the murder of other relatives beino- punished simply with death. (D. 48, 9, 9, 1.) CRIMINAL LAW. IO69 2. Murder. (1.) Killing any person, even a slave (D. 48, 8, 15) ; or (2.) Preparing, selling, or giving poison to kill any person (D, 48, 8, 3, pr) ; or (3.) Going armed with weapons to kill or steal ; or (4.) Conspiring to m\irder (0. 9, 16, 7), were punished under the lex Cornelia de Sicariis with deportation and forfeiture of the offender's property ; but during the Empire this leniency was restricted to persons of rank, the common people being punished with death. (D. 48, 8, 3, 5 ; D. 48, 8, 16.) Offering a child in sacrifice was made a capital offence by Valentinian, Valens, and Gratian. (0. 9, 16, 8.) The crime of homicide was complete when an intention to kill was manifested by overt acts, although the person whose life was attacked escaped.' (Paul, Sent. 5, 23, 3. ) This intention was inferred from the use of a deadly weapon. Thxis, wounding and killing a man with a sword brought the offender within the statute, but not striking a man with an iron key, even if the blow happened to be fatal. (D. 48, 8, 1, 3.) The lex Cornelia did not provide for killing by nejligeruie (D. 48, 8, 7) ; but during the Empire this was punished (extra ordinem) with relegation (D. 48, 8, 4, 1), or even by sentence to the mines. (Paul. Sent. 5, 23, 12.) Homicide was justified by the lex Julia de Adulteriis in certain cases. The second chapter of that statute relieved from the punishment of the lex Cornelia a father killing an adulterer caught with his daughter in his own house or in his son-in-law's house (Paul, Sent. 2, 26, 1), provided he also killed his daughter. (Mos. et Piom. Leg. Collat. 4, 9, 1.) A husband under the same circumstances could kill an adulterer if he were an infamous person, or a slave or freedman of his family (Paul, Sent. 2, 26, 5) ; but the provocation did not excuse the killing of his wife, although it was a ground for a lighter sentence. (Mos. et Bom. Leg. Collat. 4, 10, 1.) If he killed an adulterer, he must openly proclaim' the fact, and divorce his wife within three days. (Paul, Sent. 2, 26, 6. ) 3. Wounds and assaults,- An assembly of men to bea't or strilce another, if the injury were grave, was punished by the lex Julia de i-i. (D. 48, 6, 10, 1 ; D. 48, 7, 2.) 4. Giving one a drink to cause abortion or excite love, although followed by no evU result, was punishable with condemnation to the mines in the case of common people, and by relegation and fine in the case of persons of rank. (Paul, Sent. 5, 23,14.) 5. Castrating any person, whether slave or free, even with their consent, was punishable under the lex Cornelia de Sicariis. (D. 48, 8, 3, 4.) 6. Generally, a person guilty of atrox injuria, and too poor to pay damages in a civil court, was punishable with beating (B. 47, 10, 35) ; or if a person of rank, with temporary exile, or suspension from professional practice. (D. 47, 10, 45.) II. Offences against Personal Liberty. 1. To shut up or imprison a man vriKuUy, was punished with banishment by the lex Julia de vi. (D. 48, 6, 5.) 2. He that knowingly and wilfully concealed, imprisoned, bought, or was concerned in concealing, imprisoning, or buying any freeman or freedman against his will, was punished under the lex Fabia de Plagiariis with a fine. (D. 48, 15, 6, 2.) But under the Empire severer punishments, even to condemnation to the mines, were inflicted CD. 48, 15, 7) ; and kidnapping a freeborn person was finally made a capital crime. (C. 9, 20, 7.) III. Offences against Reputation. The XII Tables contained provisions against libellers, and throughout the whole 1 "Jn lege Cornelia dolus pro facto accipitur." (D. 48, 8, 7.) 1070 APPENDIX. history of Eoman law an attack upon honour or reputation was deemed a serious crime. The authors of libels, or the person that disseminated them, were punishable with relegation, or even deportation. (C. 9, 36, 1 ; Paul, Sent. 6, 4, 15.) A person taking shelter under the statue of an Emperor, to make it appear that he was oppressed by another, was punished with imprisonment. (D. 47, 10, 38.) ly. Oilenoes against Chastity, 1. A person that by stratagem removed a boy from the protection of his attend- ants, or attempted the chastity of a woman or girl, or committed an indecent assault, was punished, if the boy or girl were seduced, 'capitally ; if not, then with deportation. (D. 48, 11, 1, 2 ; Paul, Sent. 5, 4, 21.) 2. Rape was punished with death. (D. 48, 6, 3, 4 ; 0. 9, 13, 1.) i(B.) Rights in rem to other Human beings, I. Offences against 0\vners of Slaves. 1. To persuade a slave to flee from his master, or to conceal, imprison, or buy him, knowing him to be another's, was an offence punished by fine under the lex Fdbia de plagiariis. (D. 48, 15, 6, 2.) 2. To cause another man's slave to be tortured (D. 48, 7, 4, 1), was punishable with fine and deprivation of rank imder the lex Julia de vi privata, (D. 48, 7i !■) (0.) Rights i;» rem to Things. I. Offences against Ownership, (a.) Moveables. 1. Theft. In the Roman law, even under Justinian, every case of theft was not punishable criminally. (D. 47, 2, 92.) Crirpiaal pj-oceedings could be taken only in serious or aggravated cases of theft. (1.) Aiir/ei are those that make a business of cattle-stealing. The crime existed when a person stole an ox or horse from the pastures or a stable (D. 47, 14, 3, 1), or ten sheep, or four or five «wine, (D, 47, 14, 1, 1 ; P. 47, 14, 3.) The punishment might be even death, but persons of rank suffered only relegation. (D. 47, 14, 1, pr.; D. 47, 14, 1, 3.) When the thieves were dealt with as criminals, so also were the receivers. (D. 47, 16, 1.) The receivers of dbigei conld be banished from Italy for ten years. (D. 47, 14, 3, 3.) (2.) Persons stealing by night, or from baths, could be sent to public works for a time, or for life. (D. 47, 17, 1.) (3.) Housebreakers (effractores) by night were beaten and sent to the mines ; if by day, then to the public works for ^ time, or for life. (D. 47, 18, 2.) (4.) Directarii, or persons that sneak into houses to steal, might be sent to the public works, or flogged, or relegated for a time. a vessel wrecked was severely punishable. (D. 48, 7, 1, 2.) 2. Robbery. (1.) Highway robbers wejre punishable with relegation, or the mines; or, if frequently convicted, with death. (D. 48, 19, 28, 10.) (2.) If a, number of persons assembled with weapons to attack a house for the purpose of robbery, the penalty was death. (D. 48, 6, 11.) (3.) To attempt to obtain money by threatening an accusation of crime, was visited with punishment, as by the lex Cornelia defalsis, {T>. 47, 13, 2.) p. Immoveables. 1. Forcible Ejectment. (1.) The ejectment of a man from his land with weapons was punished with banishment under the lex Julia de vi publica (D. 48, 6, 3, 6) ; it by an assembly CRIMINAL LAW. IO7I without weapons, the punishment was fine under the lex Julia de vi privata. (D. i8, 7, 5 ; C. 9, 12, 6.) (2.) He whose slaves have taken arms with his knowledge and approval to acquire or recover possession of an immoveable, was punishable under the lex Cornelia de Sicariis. (D. 48, 8, 3, 4.) 2. The offence o£ raising fire was punished in serious oases with death (D. 48, 8, 10) ; otherwise less severely. (D. 48, 19, 28, 12.) II. Offences in respect of Things not subject to Ownership. 1. Peculatus. — No one, unless permitted by law, could carry or cause to be carried away or converted to his own use anything sacred, public, or devoted. (D. 48, 13, 1.) This prohibition was extended to the moveables belonging to cities by a rescript of Hadrian. (B. 48, 13, 4, 7.) The lex Julia Peculatus provided a penalty of fourfold (!l^aul. Sent. 5, 27, 1 ) ; but at a later period the punishment was the mines for common people (D. 48, 19, 38), or exile for persons of rank. (D. 48, 13, 5, 2.) See also J. 4, 18, 9. 2. Sacrilegium is strictly the theft of a sacred or public moveable. (D. 48, 13, 4, 2. ) The punishment was the mines, or deportation for persons of rank ; or if force were employed, dfeath. (D. 48, 13, 6, pr.) 3. Crimen scpulcri vidlati was an offence constructively established by the lex Julia de vi publica. It was any act that prevented the proper sepulture of the dead ( D. 47, 12, 8) ; as, e.g., obliterating inscriptions, overthrowing a et^tue or column, carrying away a portion of the tomb (C. 9, 19, 1), or despoiling the dead bodies. If the offence was committed by force, the punishment was death ; if without, condemnation to the mines. (D. 47, 12, 3, 7.) Death was also the punishment for removing the bodies and bones of the dead, except in the case of persons of rank, who were subjected to no severer punishment than deportation. (D. 47, 12, 11.) (d.) Rights in personam. Contract. I. Fraudulent Contracts. A person making a contract with reference to a thing over which he had no power to contract, was guilty of the crime of SteUionatus {C. 9, 34, 2) ; as, for example, by contracting a second mortgage, concealing a prior mortgage {C. 9, 34, 1), or selling the same thing twice over (D, 48, 10, 21), or paying a debt with property pledged to another. (D. 47, 20, 3, 1.) The penalty was for common people in opus metalli; for persons of rank, relegation or degradation. (D. 47, 20, 3, 2.) II. Compelling a person to enter into a contract by force, was punished under the lex Julia de vi, which also rescinded the obligation. (P. 48, 6, 5, pr.)' III. Forging a chirograph or altering accounts was punishable with relegation. (D. 47, 10, 13, 1.) (e.) Bights in personam. Status. I. Patron and Freedman. A freedman falsely representing himself as freeborn was punishable under the lex 7isellia. (C. 9, 21, 1.) II. Parent and Child. To palm off on a person a supposititious child was a crime ; only the person aggrieved could prosecute. (D. 48, 10, 30, 1.) III. Husband and Wife. 1. AduLterium, in later times, rested upon the lex Julia, which abrogated all prior enactments. (Mos. et Kom. Leg. CoUat. 4, 2.) The infidelity of the husband was not a crime, but only the infidelity of the wife (C. 9, 9, 1), on account of the danger of introducing strange children to the husband. (D. 48, 6, 6, 1.) It was not 1072 APPENDIX. essential that the marriage should be valid according to the requirements of the civil law (D. 48, 5, 13, 1), for even a girl betrothed, and a concubine in certain cases, was in the same position as a wife. (D. 48, 5, 13, 5 ; D. 48, 5, 13, pr.) The woman, however, must be in a respectable position. If she were engaged in a. shop (Paul, Sent. 2, 26, 11), or an actress, neither she nor her paramour could be prosecuted. (D. 48, 5, 10, 2.) By the lex Julia the punishment was fine and relegation in the case both of the man and the woman. (Paul, Sent. 2, 26, 14.) Constantine celebrated his new zeal for the sacramental idea of marriage by establishing the punishment of death. (C. 9, 9, 30, 1.) It may be presumed that this extravagance defeated its object, and accordingly we find that Justinian enacted that the woman should be whipped and sent to a monastery for two years, after which she waste be returned to her husband. If he refused to take her, she was to be sent back to the monastery for life. (Nov. 134, 10.) The husband could prosecute for adultery, but only if he divorced the woman immediately on discovering her offence. (C. 9/ 9, 26 ; D. 48, 5, 2, 6. ) After sixty days, however, and up to four months, a brother or uncle of the woman was allowed to prosecute. (D. 48, 5, 14, 2 ; D. 48, 5, 4, 1 ; 0. 9, 9, 30.)' 2. By a rescript of Severus and Antoninus it was determined that at married woman procuring abortion should be punishable with exile for defrauding her husband of children. (D. 47, 11, 4; D. 48, 8, 8.) 3. It was an offence to attempt to seduce a married woman, or to persuade her to divorce her husband. (D. 47, 11, 1, pr.) Hadrian sentenced to relegation for three years a man who took another man's wife to bis house^ and thence sent a bill of divorce to her husband. (D. 24, 2, 8.) (p.) Offences in felation to Inheritance, I. Crimen expilafae hereditaiis^ Before an heir entered on an inheritance, or obtained possession of moveables belonging to it, he had not such a title as would support an action for theft. (D. 47, 19, 2, 1.) Hence it was made an offence to carry off any goods belonging to the inheritance, the punishment being in the discretion of the judge, ^^ 47, 19, 1.) II. Offences as to Wills^ 1. He that carries away, conceals, takes by force, rubs out, oc fe-seals a will or codiciUi (Paul, Sent. 4, 7, 5) ; or, 2. He that knowingly writes, seals, or causes to' be written or sealed, a forged will or codicilli; or, 3. He that opens the will of a man during his life, Was punifshable tinder the lex Cornelia de fains. (D. 48, 19, 38, 7.) 4. The punishment of that statute was extended by an edict of Claudian to those that in writing a will wrote a legacy with their ot*n hands for themselves or for any one in their potestas (D. 48, 10, 22, 1 ; D. 48, 10, 15), unless the testator was proved to have given his sanction. (D, 48, 8, 1, 8 j D. 40, 8, 8, 33, 3.) PASSAGES OMITTED. IO73 N 0. 2.— P ASSAGES OMITTED. Again, in Xh.&forimcla set forth for a farmer of the taxes, the fiction is this, that whatever is the sum of money at wliich, if in old times a pledge had been taken, he from whom it was talcen would be bound to redeem it, that is the sum in which the defendant is to be condemned. 'Quinoforimila is moulded on the fiction of a condictio ; for whether it is money or some determinate object due to us that we claim, in the statement of claim we allege that it ought to be given us ; and we join to this no fiction of a condictio. We understand, therefore, at the same time, that the formulae by which we state our claim that money or some thing ought to be given us take effect by their own force and power. Of the same nature are the actions of free \oz.n, fidticiae-i negoiionim gestonim, and countless others. (G. A, 32-33.) Penal actions, too, in great numbers, the Prsetor has brought in by virtue of his jurisdiction. Such actions maybe brought, for instance, against the man that has spoiled any entry in the Prsetor's alhan; against the man that has summoned t-o court a patron or an ascendant, although he had not obtained leave to do so ; against the man, again, that has rescued by force another when summoned to court, or that has wilfully induced a third person so to rescue him ; and there are countless others. (J. 4, 6, 12.) The next division is that some actions are designed to recover a thing, some to recover a penalty, while some are mixed. (J. 4, 6, 16.) Actions arising from misdeeds {£X malefidis) are designed, in some cases, to recover a penalty only, in other cases to recover both a penalty and the thing, and are therefore mi.xed. The penalty only is what one recovers in an action for theft ; for whether the action is against a thief taken in the act for fourfold the amount, or against a thief not taken in the act for twofold, it is for a penalty only that the action is brought. The thing itself a man pur- sues by the fining action, claiming it (that is) as his ; and this whether it is a thief that is in possession of it or any one else, no matter who ; nay, more than that, against the tlrief also a condiclio for the thing lies. (J. 4, 6, 18.) We bring an action sometimes to obtain a thing only, sometimes a penalty only, sometimes for both thing and penalty. We recover the thing only, for instance, in actions arising from contract. We obtain a penalty only in, for instance, the action for theft or for iiijuriae; and, as some think, in that for robbery, for we can avail ourselves of both a vindicatio to recover the actual thing, and of a condictio. But we recover both things and penalty in those cases, for instance, in which we bring an action for twice the amount against a man that denies our claim; this happens in an action for the amount of a judgment, or of a debt paid for another, or of wrongful damage under the lex Aguilia, and also in the action on account of legacies left to a determinate zmonnt per damjtationem. (G. 4, 6-9.) The action for robbery is mixed; because in the claim for fourfold is included the claim for the thing, while the penalty is threefold. The action under the lex Aquilia for damage is mixed, not only if the action is for two- fold against a man that denies the claim, but sometimes also if one brings an action for the amount simply ; if, for instance, one kills a slave that is lame or blind, who within that year was sound and of great value, then the I074 APPENDIX. amount one is condemned in is tlie highest value of the slave within that year, according to the arrangement already laid down. There is a mixed action against those, again, that have put off giving things left to our very holy churches or other venerable places, as legacies or trusts, until they are actually summoned before a judge. Then, indeed, they are compelled to give both the actual thing or money left, and as much more by way of penalty ; and therefore the condemnation is to be twofold the amount. (J- 4, 6, 1 9-) All actions z>z re)n are designed to recover some thing. Of the actions in personam (against a person) again, those that arise from contract seem all for the most part designed to recover a thing ; as, for instance, those in which the plaintiff claims money on loan or brought into a stipulation ; or again, for free loan, deposit, mandate, partnership, purchase, sale, letting on hire, taking on hire.. Evidently, however, if an action of deposit is to be brought on account of what has been deposited by reason of a sudden out- break of fire, of the fall of a house,, or of shipwreck, the Prsetor gives an action for twice the amount,, if only the action is against the man with whom the thing was deposited, or against his heir as the result of his own fraud ; and in that case the action is- mixed. (J. 4, 6, 17..) All actions, moreover,, are framed either for the amount simply, or for twofold, or for threefold, or for fourfold ;. but no-- action goes further. An action may be for the- amount simply, as are those that arise from a stipula- tion, from giving on loan^from purchase and sale, from letting on hire, from taking on hire, from mandate, and, in fine, in many other cases. We may bring an action for twofold against a thief not taken in the act ; for instance, for wrongful damage under the lex Aquilia ; for deposit in certain cases ; or, again, for corrupting a slave. This action is open to us against the man that has encouraged or advised another's slave to run away or become obstinately defiant to his master, or to begin to live luxuriou.sly, or, in short, in any way to become worse. In it account is taken also of the things the slave carried off when he ran away. We- may bring such an action, again, for a legacy left to venerable fJaces, accordiiig to. what we have said above. (J. 4, 6 21-23.) An action may be brought for fourfold, as against a thief taken in the act ; or again, for what has been done imder the influence of fear (arfzo gucni metus causa), or for the money that has been given for this end, that he to whom it is given should give or should not give trouble to some one by trumping up a charge against him. An attzo condictitia also, by virtue of a statute, arises under a constitution of ours. It imposes a- fourfold penalty on the officials that carry out actions if they, contrary to the rule of our con- stitution, have exacted anything from the defendants. (J.. 4,- 6, 25.) But the action against a thief taken in the act, and that for corrupting a slave, differ from all the others we have spoken, of, at the same time,, in this point, that these actions are in any case for double the amount. Those, on the other hand — the action for wrongful damage; that is, under the lex Aquilia, and sometimes that for a deposit — are doubled if the elaim is denied ; but if it is owned, the action given is for the amount simply. Th« actions available for things left to venerable places are doubled, not only if the claim is denied, but if payment of what is left has been put off until by order of our magis- trates the defendant was summoned. If, moreover, the defendant owns the PASSAGES OMITTED. IO75 claim, and pays before he is summoned by order of our magistrates, the action is given for the amount simply. Again, the action for what has been done under the influence of fear differs from all the others we have spoken of at the same time in this point, that in its very nature it tacitly involves that if at the judge's order the defendant gives up the actual thing to the plaintiff he must be acquitted. In all the other cases this is not so ; but in any event each defendant is condemned in fourfold the amount, as is the case also- in an action against a thief taken in the act. (J. 4, 6, 26-27.) INDEX. INDEX. Abetting tlieft, 240-41. Abigei, 1070. Abortion, 10C9, 1072. Absence, 1S6, 271, 649, 681, 720. Absens ( = in different province), 29t). Absolutoria judicia, 1009. Abstinendi jus, 876-81. Acceptilatio, 639-41 ; 559, 560, 568, 642, 644, 913, 914. Accessio, 274-282 ; latou? to moveables, 280 ; land to land, 27o ; to legacies, 901 ; moveables to land, 276 ; move- ables to moveable^, 279 ; possessionis, 266 ; temporis, 371. Accomplices, 240-41. Accounts — fraudulent alteration of, 1071 4 household, 466 setj.; incomplete, 1063. Aocrescendi jus (accrual), 757-9, 776-7, 789-90, 915. Accrual— between co-heirs, 757-9, 789-90; between co-legatees, 91 5 ; of persons passed over in the will, 776-7. Accursius, 100. Acquisition — per universitatem, 126, 127, 739 seq. ; singnlarum rerum, 127, 739 (see Fideicomniissa, Legacy) ; modes of, 113 (Bracton), 259 seq.; of posses- sion, 343-9 (see Possession) ; through extranea persona (outsider), 324 ; through perions in potestas, 294, 610 seq. (contract) ; through slaves, 157, 323-4, 610 seq. (contract). Acquittance in fraud of creditors,1040-42. Acta, 178. Actio — definition and classes, 124-5, 131 ; place in the Institutional classification, 124, 128 ; opposed (with petitio and interdictum) to cognitiones extra- ordinarise, 1013 ; opposed to petitio, 1001, 1013 ; proceedings taken in execution of judgment, 1029. Actions in Bracton, 115 ; prsestare vel man- dare, 627-8. Actionis cessio, 626-8, 648 ; editio, 983 ; impetratio, 1013 ; postulatio, 983. Actio ad exhibendum, 334-5, 884, 987; ad supplendam legitimam, 786 ; Eesti- matoria seu quanti minoris, 505 ; aquie pluvia; arcendae, 20, 333, utilis, 409 ; AquiliiE (legis), 332, 335, 409, 514,624, 561, 665, in factum, 224-5, utilis, 244, Actio {continnecl). 240 ; arbitraria, 585, 987 ; arboruui furtim csesse, 332, 614 ; bonsE fidei, 48 -note, 537, 994, 1009, 1016, 1017 ; bon- orum vi raptorum, 241-2, 183-4, 330, 409, 1073; calumniEe, 185, 1020-21, SS9, 1074 ; civilis, 264 ; commodati, 238, 478-9, 1018 (no set-off in), 1073-4, -utilis, 479, 700 ; -commxini dividundO; 337, 339-40,-524 ; condictitia (see Con- dictio); conducti, 514 ; -conf essoria, 425, 387, 388, 409; contraria, 479 (com- modati), 48- (depositi), 490 (mandati) ; -curationis causa utilis, 735 ; damni injuria!, 243-5, 183, 1073-4; de aasti- mato, -542 ; de calumnia, 185 ; de dolo, 235, 533, .552, 597, 648 ; de dote, 911 ; de-eo quod certo loco, 585 ; de eo quod metus causa, 1074-6 ; de in rem verso, '616, 617, 620 ; .de parfcu agnoscendo, 222 ; de pauperie, 249, 331 ; de peculio, 614-15, 620 ; de pecunia constituta, 566-7, 576, 928 .; de rationibus distra- hendis, 724 ; de rupitiis sarciendis, 20 ; de sepulcro violate, 147, 317 ; de servo corrupto, 183, 234, 409, 1074; de termino moto, 332 ; de tigno in- juncto, 276 ; dejecti aut effusi, 153 ; depensi, 570, 676, 983-6 (recognis- ances), 1003 (confessio), 1019 (costs), 1073 ; depositi, 239, 481-2, 700, 1074, utilis, 482 ; directa, 478 (commodati), 482 (depositi), 489 (mandati) ; em- phyteuticaria, 429 ; empti, 504 ; ex contractu, 131, etc. ; ex empto vendito, 1074 ; ex locato conducto, 1074 ; ex maleficio, 131, 241, 1073 ; ex mutuo, 474 ; ex sponsu, 625, 695 ; ex stipulatu, 463, 464, 505, 504, 724 ; exercitoria, 617-18, 620, 621, 623 ; familioe ercis- eunda;, 19, 114, 259-60, 757, 883, 891-92 ; fiducite, 436, 1073 ; finium regundorum, 337 ; furti, 183, 237-41, 325-8, 330, 409, 614, 624, 646, 1073-5, concepti, 21, 328, non exhibiti, 329, oblati, 21, 328, prohibit!, 328-9, honoraria, 42 ; hypothecaria (or quasi- Serviana), 308 (dos), 433, 447-8, 646, 897, 962, 987 ; in factum, accommodata legi Aquiliae (or ad exempluui legis Aquilioe), 244-6, Pauliana, 1042, prse- io8o INDEX. Actio {continued). scriptis verbis, 453, 505-6, 533, 542-5 ; in personam, 131 seq. ; in rem, 131 seq. J injuriamm, 154-6, 149, 154, 166, 183, 185, 1020, 1021, 1073— persons under power, 194-6 — persons in man- cipio, 228, 230 — res coBamunis, 310, 312 — usufructuary, 409 ; institoria, 618-20, 621, 623, actions on analogy of, 621 ; interrogatoria, 1004-5 ; judicati, 1031-33, 1073 — recognisances, 985-6 — confessio, 1003 — costs, 1019 ; lega- torum per damnationem relictorum, 1003 (confessio) ; legis. (see Legis actio) ; legis Aquiliie, 332, 335, 409, 514, 524, 651, 663, in factum, 244-5, utilis, 244, 240 ; legitima, 42, 264 ; locati, 514, 238; mandati, 489, 490, 556, 557, 565, 576, 1074; metus, 552; mixta, 1073-4, 340 (in rem and in personam) ; mutui, or ex mutuo, 474 ; negativa^ or negatoria, 425» 387, 409 ; negotiorum gestorum, 661-6, 735, 1073 ; noxalis, 184, 166, 167, 197, 331, 248-9 (pauperies), utilis, 248 ;. oneris ferendi, 426 ; Pauliana, 1042, in factum, 1042 ; per judicis pos- tulationem, 978, 975, 37, 48-49 ; per manits injectionem, 10130-31 ; per pig- noris capionem, 1044, 970, 974-5 ; pig- neratitia, 448, 382, 439 ; poenalis, 1U04, 1073 ; popularis, 332, 1016 ; positi aut suspensi, 150, 153; prsBJudicialis, 989, 129, 1005 ; prKscriptis verbis (see Actio in factum above) ; prsetoria, 42, 264 ; prima (in criminal trial), 59 ; pro socio, 524, 519, 521, 522, 556, 629, 1074; Publiciana, 263-5, 387, 420, 425, 429, 987, rescissoria, 272 ; qua quaeritur an actor juraverit, 615 ; quasi-Serviana (or hypothecaria), 308, 433, 447-S, 646, 897,952, 987 ; quod jussu, 614, 615-17 ; quod metus causa, 1074-5 ; recep- titia, 566-7 ; redliibitoria, 505 ; rei per- sequendffi causa, 1073-4 ; rei uxorife, 307 ; Rutiliana, 1037 ; sacramenti, 364-7, 372 ; secunda (in criminal trial), 59 ; sepulcri violati, or de sepul- cro violate, 147, 317 ; servi corrupti, or de servo corrupto, 183, 234, 409, 1074; Serviana, 41, 433, 447-8, 987, lOOO ; strict! juris, 48 note, 537, 994, 1009; 1016, 1017;. superficiaria, 430 ; tributoria, 604, 614-15, 620; tutelas, 697, 723-6, 731— utilis, 724-5 ; utilis, 40, 1038, 244 ; venditi, 505 ; vi bon- orum raptorum, 241-2, 183, 184, 330, 409, 1073. Actor, 454 ; tutoris, 733. Actus, 415, 419. Addictio — bonorum libertatis causa, 742- 744 ; in diem, 590. Addictus, 1034. Ademptio legatorum, 949. Aditio hereditatis, 875-81. Heres neces- Aditio hereditatis {continue^. sarins, 875, suus et necessarius, 876, extraneus, 876-7. Jus deliberandi, 877. Formal acceptance (cretio), 877-9 ; in- formal acceptance — by sui et necessarii {immixtio), by extranei (pro herede gerendo), 879-81. Adjournments — in judioio, 1008 ; in jiire,. 985. Adjudioatio, 988, 9-89, Adjadicatus, 194. Admissions, 1003. Adoption, 203-21 : of persons alieni juris, 209; by mere declaration,. 2X0 > effect of, 203 ; forms— later (adoptio), 204, oldest (arrogatio), 204-7 ; informal confirmation of), 211 ; before Jus- tinian, 207-8 ; Justinian's alterations, 207-10-; by mancipation, 209-10; be- fore a magistrate, 21 j naturani imita- tur (copies nature), 211; primary objects of, 204 ; potestas acquired througb, 203 ; release from, 212-21 > cannot be repeated, 211 ;. restraints on, 211 ; by testament, 211 ; of women, 206. Adopted child : disherison of, 778-9 ; succession of child given in adoption, to natural father in- testate, 851 - 3 ; succession of natural father to inte.state child given in adoption, 853. Adpromissio, 665. Adrogatio. See Arrogation. Adscriptitii, 162-3. Adsertor libertatis, 24, 174, 184-5. Adsessores, 73. Adsiduus, 968-969. Adsignatio libertorum, 870-71. Adstipulatio, 563-5 ; of slave, 606 ; re- lations of adstipulator and stipulator, 564, 641. Adulterium, 687, 1061,1067, 1069,1071. Adversaria, 466. Adverse possession, 362, seq.- Advocates, 1028-29,. 1022. jEdiles, 15, 43, 44, 70 ; cereales, 43 ;. curule, 43 ; plebeian, 43. Edict as to- animals, 249 ; sale, 499-501. Jilquitas, 119 ; naturalis, 43, 60, 216. JSls, 229 ; equestre,.hordearium, militarey 1044. .^s et libram, per : conveyance (manoi- patio), 229, etc. ; contract, 459, 528, 529, 531, 538-9-40, release, 459, 547, 641 ; testamentum, 538, 767-9. jEstimatio litis, 336. AfBnes — ^who are forbidden to intermarry, 686 ; intestate succession of, 863-4. Affinitas, 686. Affirmatores, 716. Agency — In contract : perfect type, 609 ; none in early Roman law of contracts — why ? 609-10 ; how far substitute provided by old law within the family, INDEX. 1081 Agency {continued). 610-17, beyond the family (cxercitor, institor), 617-22 ; extensions on analogy of institor, 621 ; actiones exercitoria and institoria fall short of true agency, 621 ; did the Romans ever approach nearer to true agency ? — discussion of Savigny's views, 621-3, Cases analo- gous to, 623-6. In conveyance,. 322-5 y in possesaion^ 352-7, 378 ; in property, its fate contrasted with that of agency in contract, 623 ; principal's re- sponsibility for wrongs done by his- agent, 154. In procedure : three periods, 1025 ; procurators and advocates, 1022- 28 ; appointment of procurators and cognitnrs,. 1022-3 ; wh^^n must give security, 1023-4 ; under Ex- traordinary Procedure, 1024-9. Ager — arcifinius, 276; assignatus, 276 j compascuus, 417 ; limitatus, 276 ; privatus, publicus, 367 seq. ; Eomamis, 250 (interference with landmarks) ; vectigalis, 426. Agere — of jurisconsult, 55^ Agnati— defined, 835-6-, 684, 830 ; for- bidden to intermarry, 684-6 ; as tutores, 711 (impuberum)r 729 (mulierum) ; as curators, 732 seq.; intestate succession, 835-7,. 848,. 857-bO, 861, 863. Agni, 905.. Agnitio, 648-; (bonorum possessor). 843-4, 887. Agreements, 457. Agricultor, relief from error of law, 660. Agrimensores, 1013, Album — judicum, 46, 57 ; Praetor's, 35, spoiling entry on (albi corruptio),. 1073. Aleator, 691. Alienation of property, voluntary, 258 seq. : of bequest (created presumption ef revocation) 950 > in fraud of credi- tors, 1040-42 ; by emphyteuta, 427 ; of pledge,. 437 ; compared with volun- tary promise, 318-19 ; restrictions- on, 318-22,. 945-0 (legacy); by usuary, 410 ; by usufructuary, 401-2. Alieni juris, 193-4, 117, 128, Aliens. See Peregrini. Aliment, legacy of, 909, 943. Alluvio, 276,, 399. Altius toUendi jus, 418 ; altius non- tol- lendi jus, 418. Alveus derelictus, 275-6, Ambiguity in testator's intentions, 957- 64 : arising from language or gram- matical construction, 958-60 ; from testator's saying too miich, 960-61 ; from irreconcilable dispositions, 961-4. Ambitus, laws regarding, 57 note 2. Ampliatio— in criminal proceedings, 59 ; litis. 1007. Anastasian rescript, 213. Ancestral worship, 745-6, Ancilla, 163. Aneologistus, 704. Animals — undisclosed faults (on sale) of, 498-500 ; injury to, 242-7, 330-31 ; legacy of, 905 ; mischief done by, 248-9, 331 ; occupatio of, 256, 345-6 ; as res mancipi, or nee mancipi, 260-61 ; theft of (abigei), 1070 ; usufruct of, 401 ; usus of, 410 ; young of, 300, 335. Animus — domini (in possession), 375-88 ; fraudandi, 179 ; revertendi (of ani- mals), 346 ; tenendi, 378, 341, 348-9. Anniculi probatio, 198, 673. Annona, 1067. Annuity, 753, 912-13. Anquisitio, 56. Antichresis, 439. Antiqui, the, 93-94. Apoohas, 428, 636. Apostoli, 1048, Apparitores, 1043. Appeal, 1044-8 ; history of, 13, 22, 23, 26, 71-72, Under Empire, 1045-8; who may appeal, 1047 ; costs of, 1048, 1047 (security for) ; frivolous, 1047 ; lies from what judges, 1046, from what judgments, 1046-7 ; judge's letter of, 1048 ; notice of, 1047 ; written petition of, 1047 ; proceedings on (to hearing), 1047-8 ; vexatious, 1047. Under Re- public, 1044-5 (substitutes for regular appeal). Appearance — avoidance of, 969-70, 972 ; bail for, 968-9 ; prevention of, 9C9-70. Appellaticr, 1045. Appointment, power of, 823, 941. Apportionment, 399, 816,941. Aqua — aestiva, 424 ; pecoris ad aquam appulsus, 416, 425 (interdicts) ; cot- tidiana, 424 ; aquae ductus, 415, 419, 424 (interdicts) ;. aquse educcndse jus, 416 ; water-rate (pro aquse forma), 910 (legacy) ; aquEe haustus, 415, 425 (in- terdicts) ;. pluvia, 254. Aqua et igni interdictio, 218, 187, 1061, 1065 ; when di.-;solved marriage, 694 ; effect on testamenti factio, 795. Aquiliana stipulatio, 639-40, 642. Arbiter, 18, 22, 23, 44, 48-49 ; procedure before, 1007. Arbitraria formula, 998-9. Arbitration, reference to — compulsory 973, voluntaiy, 967, Arbitrators, the, 44-51. Arbitratu (or arbitrio) viri boni, 402, 406, 503. Arbitrium, 48 note. Arbores furtim cffiSEe, 251-2, 332, 514. Arcarium nonien, 467. Archiatri, 601 (promise of remuneration). Area, 444 (hypothec). Arenas fodiendae jus, 417. io82 INDEX. Argentarii — actio receptitia, 567 ; codex, 468 ; special mortgage, 445 ; partner- ship, 517 ; set-off, 994-5 ; joint stipula- tion, 560.; surety, 569. Aristotle, on slavery, 161-2. Armamenta, 336 (of ship). Arrest, 1030-31, 10-34; of baiilirupt's property, 1037. Arrhae, 50,4 ; sponsalitise, 096. Arrogation, 204-7, 209:; 7, 10,126 ; in- quiries preliminary to — in .case of boys under puberty, 207, of women, 206 ; by legislative. act (ancient form), 205 ; by imperial rescript, 206 ; restraints on, "206, 211 ; iorm of universal -suc- cession, 740-2, 754 ; .of pupillus (ends tutda), 723. Arrogated ohild^disherison of, .778- 779. Arson, 5.7. As 229 Assassins, 1061, 1062, 1066, 1063, -1069, 1II7L Assault, 1069 (punishment). Assessors, 73. Atrox injuria, 155, 1069. Auctoratus, 194. Auctores juris, 55, 76. Auctoritas — patrmn, 13 ; poptlli (in arro- gation), 205-6 ; of tutor impuberum, 699-702 ; of tutor mulierum, 728. Audientia episcopalis, 74. Audi tores, 79. Auditoria, 52. Auditorium sacrum, 67, 71. Augurs, 10. Augustus — changes in the law under, 66-67 ; gives jus publice respondendi, 53, 76 ; supremacy of, 65-66. Auspicia, 7, 8, 25. AuthenticEE, 92. Aversionem, per, '512. Aves, 905 (legacy of). Azo, 100, 109. Bail, 968 (vindex), 969 (cautio judicio sisti), 972 (.vadimonia), 1030 (manus injectio). Ballot, in criminal trials, 59. Banker. See Argentarii. Bankruptcy, 1036-42, 126, 133 note; involuntary, 1036-9 ; on application of bankrupt, 1039-40 ; fraud of bank- rupt, 1040-42. Barter, 491, 541-2. Basilica, 95-96, 97 ; abridgments of, 96 ; scholia on, 95-96 ; Basilicorum Synop- sis, 95^ 97 ; Minor, 96. Bastards, 683. Benefieium— abstinendi, 876, 877, 879-81; cedendarum actionum, 554, 578 ; divi- sionis, 554, 578 ; legis Cornelise, 572 ; ordinis seu exoussionis, 447, 554, 568 ; principale, 674 ; quinqueimalium, 1040. Bequest. See Legacy. Betrothal, 095-6, 525, 635. Bishops, 74, 221, 293, 717, 1056. Bla«kstone's classification, 135-7. Blind, cure of, 732 ; wills of, 772. Bluhme's discovery, 91. Body, harm to the, 146-7. Bologna school, the, 99-101. Bona — in Bonorum possessio (q. v.), 84], .745 ; materna, 293-4, 444, 853 ; va- cantia, 865-6,; vi rapta, 166 (see also Actio vi bonorum raptorum). In .bonis, 843, 1038- Bonorum — addictio libertatis causa, 742-4; cessio, 1039-40; coUatio, -849-50, 8-58, 783 ; distractio, 1038- ,9 ; emptor, 994-5, 1038, 1042 ; pos- sessio (see Bonorum possessio) ; pos- sessor,1038,1039 (see also Bonorum possessio); sectio, 1036; separatio, 748-.9:; rvenditio, 1037, 126. Bona fide contract, 537 ; bona fide pos- sessor, 237, 247-8, 268-9, 277, 279, 336, 341-2, 398, acquisition by, 885-6 ; slave possessed bona fide, 323, 354 ; ,in usucapio, 268-70. Bonse fidei actions, 48 note, 537, .994, 1009, 1016-17, Bonds, 429. Bonitarian ownership, 263-5, 371 seq., «12. Bonorum possessio, 840-63, 40, 127 ; .agnitio, 843-4, 887 ; definition, 840 ; special sense of bo7ia and of possessio in this connection, 841 ; interdict quo- rum bonorum, 842-5 ; origin of, 846-8 ; --cum re, sine re, 845-6 ; remedies, 886-7 ; tempus utile, continuum, 884. See Inheritance. Succession to Freebot-n. — Defects in law of XII. Tables — Praetorian modifi- .cations, 848 seq. .; agnates, 857-60 ; collateral cognates, 860-62 ; fathers and children, 849-53 ; grandfathers and grandchildren, 854-5 ; husband and wife, 863 .; mothers and children, 855-7 ; unde cognati, 848 seq., 861 seq.; unde legitimi, 848 seq,, 860 ^eq., 869 ; unde liberi, 848 seq., 860 seq. ; unde vir et UX05, 863, 848, 861. .J-ustinian's reform, 863-5. Contra tabulas, 860 ; secundum tabulas, 860. Succession to Fivedmen, 866-74. To freedmen (Roman citizens), 866-71 ; tum quem ex familia, 861, 869, 870 ; unde cognati manunjissoris, 861, 863 ; unde decern personse, 851, 860-61 ; unde liberi patronis patronseque et parentes eorum, 861, 869, 870 ; to Latini Juniani, 871-4 ; to dedititii, 874. Borboritae, 1056. Borrower. See Loan. Boundaries, 20 (XII. Tables). INDEX. 1083 Brachylogus, 100. Bracton— obligations of, to Eoman Law (chiefly through Azoj, 109-116.; sum- mary .of chief points of Roman Law in, 113-16. Breach of promise of marriage, 625. Breviarium Alarioi(auum), 89. Breviculus, 1009. Brevi mann delivery, 3^9. Bribery, 57, 1063. Burden of proof, 1057-8 ; causa liberslis, 185 ; actio confessoria de usufructu, 409 ; condictio indebiti, 661 ; utilis actio tutelce directa, 725. Burdens — on things bequeathed, 90.1 ; on land, i02-3., 438,-901. Burial-ground, 316-17. Burning alive, 1064, 1067,106,3. Burying alive, 1064. Byzantine Iiaw, 93, 97. Caduca, 758j 866, 915. Calcis coquendse jus, 417. Calendar, the, 10, 24, 52. Calumnia, 1020-21, 827, 986, 999,1019, 1066, 1074. Canon, 426, 428. Capita, division of intestate inheritance in, 835, 857, 864, 865. Capital cases, 21, 23, etc. (see Caput) crime, 671 ■; punishments, 1064-5. Capitis deminutio, 214-20; meaning of, 219-20 ; maxima, 215, media or njinor, 218, minima, 219. Effect in joint, obli- gation, 5.'t9 ; on partnership, 523 ; in conditional stipulation, 592 ; on co^pia.- tiou and agnation, 685, 836, 843, 857 " 861 ; on tutela, 723 ; on arrogatio and coemptio in manum, 741-2 ; on testa- tion, 805, 809 ; on membership of gers, 838 ; in intestate succession .to freed- men, 868. Capito, 77. Captatoria institutio, 947. Captive, 215-17; returned, 215-17; (in war) made slave, 160-61, 169 ; testa- menti factio, 795. Caput, 219, 23, 26, 30, 50 note, 160, 215, 1045, 1065. Slaves have no, 160, 214. Carbonianum edictum, 886. Carmen, 148. Cassians, the, 77. Castellum, 425. Castration, 1069. Catonia regula, 948. Cattle-stealing, 1070. Causa — cause, case, grounds : -cngnlta — adrogationis, 207 ; under Edictum Car- bonianum, 886 ; on application for bonorum possessio, 886 ; injuria to son, 196 note ; as to superficies, 430. Cause, consideration, ground, motive: cessante causa non cessavit lex. S75 • iTjn. data nfl.lis. Causa {continued). 656 ; falsa — in legacy, 925, in Aisucapio^ 270 ; justa — adquisi- .tionis, 336, 290., manumissionis, 180-81, possessionis, 290, 272 ; tra- .ditionis, 282, 287 ; injusta, 598 ; Jucrativa, 270, 914, 944 ; of legacy, •896, 925 ; noxalis, 196, 229-30 ; .pietatis, 658 ; turpis, 598. Valu- able consideratioq, 59.7 (sine causa), 944. (Cause, suit.: causae conjectio, 1007 ; liberalia, 184-5. •.Offspring, produce, things appertain- ingitq, 335.,'901-2 (casual gains). Cautio — of arrogator, 207 ; in bon- .orum addictio libertatis causa, 742-3 ; .damni infecti, 465, 495 ; de dolo, 465 ; judioatum solvi, 1026, 983, 1024; ju- dicio sisti, .'969 ; juratoria, 1024 ; in loan, 469-71 ; Muciana, 939 ; de perse- quendo servo, 465 ; ,as evidence of stipulation, 463 .; in usufruct, 39.7., 406 ; in usus, 411. "See Satisdatio. Cavere — of jurisconsult, 55. Censor?, the, 12, 28, 29, 70, 70. Censuale officium, 773. Census — evasion of, punished with slavery, 169.; manumission by enrolment of slave's name on, 174-5, 192. Census ■magister, .773. Centenarii (liberti), 869. Centumviri. 49-51, 39, 259, 885, '975, ft76, 979, 982, 1007. Cessio — bonorum, 1039-40 ; in jure (next article) ; jiominum vel actioniim, 626-8, .648. .-Cessio in jure, 262, 26Q, 26], 263, 246, 20, 55, 209 ; who cannot acquire by, 262 ; in fiducite contractus, 434-5, 433 ; of inheritance, 881-2 ; in legacy per •damnationem, and sinendi mcdo, 890 : creates, -servitudes, 419, 420, termi- nates servitude^, 422 ; tutela of women transferred by, 730 ; .creates usufruct, 404, terminates usufruct, 407. ■ Character, evidence of, 1052-3. Chastity — attempts on, 149-50 ; offences against, 1070 ; of vestal virgins, 1064. Child — rights and duties of, 194-7 (under potestas), 676-8 (not under potestas) ; exposure of, 190, 220 ; palming off a supposititious, 1071 ; prostitution of, •52b ; sacrifice of, 1069 ; sale of, 191-2 ; succession to, 853 ; will of father, 774. ■Chirographa, 468-9, 470 ; forgery of, 1071 ; legacy of, 913. ■Christianity, influence of, 68, 69 ; slave .accepting, set free, 183. Church — action by (prescription of), 648- 9 ; admission into, frees slaves, 183 ; as heir, 800 ; endeavour of, to sup- press interest, 652 ; legacies, trusts, 'idt to, 659 ; legislation in favour of, 1084 INDEX. Church [continued), 659, 689-90, 1074 (ter) ; manumission in, 177 ; property (sale of), 316. Circumstantial evidence, 1050-57. Citatio in criminal proceedings, 58. Citations, law of, 69, 79. Civitas, 30, 186 ; forfeiture of, 1065 grant of privileges of freeborn, 671 conversion of Latinitas into, 673-4 loss of, effect on testamenti factio, 795 sine suffragio, 31. Civitatum defensores, 7i. Clam, 252-3. Clans igentes), the, 6. Classification of Roman Law, 122-142 ; of ancient codes generally, 122 ; of the Perpetual Edict, 123 ; of the Roman Codes, 123 ; of the Digest,. 123, 139 ; Pothier's re-arrangement, 123 ; of the Institutes (Gaius and Justinian), 124- 132 ; classification of the present work, 132-142 ; importance of a sound and uniform system of exposition, 139-140 ; order of exposition (witlv illustrative example), 140. Clausula— codicillarLi, 829-30, 765 ; pro- rogationis, 930 ; stipulationis judica- tum solvi clausula? tres, 1062.- Clergy — property of, 293 ; excused fpom being tutores, 720 ; attempts to obtain jurisdiction over publication of wills, 773. Clients and patron, 4. Cloacae mittendiB jus, 419 ;• interdicts de cloacis, 425. Cloacarium, 901. Codes — ancient, 122 ; of Byzantine em- perors, 94 - 96 ; Gregorian, 85 - 86 ; Koman, promulgated by German kings, 88-89 — Lex Pomana Burgundionum, 89, Visigothorum (or Breviarium Ala rici), 89, Edictum Theodorici, 89 Hermogenian, 85-86, 123; Indian (definition of contract), 457 ; Indian Penal, 1 053 ; Justinian's — New (repe- titae praslectionis),. 92, 123, Old (Vetus), 90 ; Theodosian,- 86-87, 123 — projected new, 87. Codex — accepti et expensi, 466-9. Code (see Codes). Codicillaris clausula, 829-30, 765. Codioilli, 825-30 : form of, 826 ; intro- duction of, 76.7, 809-11 ; manumission by, 175-7 ; oflrences as to, 1072 ; trusts left by, 895 ; comparison with will (testamentum), 825-8 ;. confirmation by will, 828 ; wills construed as,. 829-30 ; as depen(]ent on wills, 828. Coelebs, 798, 824. See Lex Papia.- Coemptio, 224-5, 222, 223, 226, Iff; fiduciaria, 731, 795 ; compared with mancipatio, 229 ; matrimonii causa, 731; as mode of universal succession, 740. 42. Coemptionator, 228, 229, 731, 741. Cognati — defined, 830 ; forbidden to intermarry, 683-4 ; as tutores, 711 ; collateral (intestate succession), 860-65. Cognatio legitima, 836. Cognitio (Prsetoris), 988 ; extraordinaria, 42, 1013, Cognitor, appointment of (compared with procurator), 1622^3 ; exceptio as to, 991 ; security, 1023-4.. Co-heift, 553. Coinage, offences a« to, 1067, 183 (coiners of' bad money). Coke, Lord, his use of Bracton, 111 ; on insults 1k) the dead,. 147.- Collateral relations — defined, 830 ; for- bidden to intermarry, 683-6 ; intestate succession of collateral cognates, 860-65. CoUatio— bonorum, 849-50, 858, 783 ; Mosaicarum et Komanarum Legum. 88. Co-legatees, 915. Collegium, 314. Colonise — civium Komanorum, 32 ; Latins?, 32, 218 ; maritime, 32. ColOnus — tenant-farmer, 398, 447, 507 seq. ; adscriptitii or censiti, 162-3 ; inquilini, liberi, tributalrii, 162-3.. Gomitia — Calata, wills made in, 766 ; Centuriata, 7, 8-11, 34, 60, 66, 1065 ; Curiata,- 7, 66 ; Tributa, 14,. 25-27, 56, 60, 66, 1066. Gomitium, 51. Commercium, 5, 30,, 198, 599. Commixtio, 281. Commodatum, 475-9, 527 seq. ; damnum injuria under contract of, 248 ; theft under contract of, 238 ; compared with usus, 475-6. Gompensatio, 993-5, 1017-18. Compensation — in accessio, 277-81 ;' for unexhausted improvements, 301 (dos), 337, 440 (pignus) ; in simple injury, 154 ; in aggravated (atrox) injury, 155. See ilesponsibility. Gomperendinatio, in criminal proceedingSj 59i Comperendinus dies, 1007. Compromise (transactio), 549. Conceptio- (f ormularum), 986 seq. Conciliabula, 32.- Concilium plebis,- 26, note 1 ; concilia semestria, 71. Concubinatus, 678, 694 ; gifts to concu- bines, 321-2 ; concubines as heirs, 802 ; legitimation of children of (by subsequent marriage), 201-2. Gondemnatio, of formula, 988, 989, 996 (variance).. Gondictio — origin and definition, 37 seq., 132, 463-4i. 975, 979, 980v 981, 982 ; cerli — on adstipulatio, 564 ; on expen- silatio,, 469, 471 ; on mutuum, 472, 474 ; on sale, 505 ; on stipulation, 464, 626, 637 ; incerti— in delicts, 1073 ; INDEX. I08 = Condictio {continued). on stipulation, 464 ; in tutela, 724 ; furtiva, 237, 325, 329, 552 ; indebiti, 658-61, 588 ; ex lege, 973. Conditio. In contract : may be attached to all contracts (except expensilatio), 589 ; conditional obligations, how valued (lex Faleidia), 752-3 ; defini- tion, 586 ; dies cedit, venit, 587 ; differs from incertus dies, 587 ; chief practical effect, 587 ; fulfilment, 589 ; illegal, impossible, 591-2 ; novation, 630 ; prae- postera, 592 ; resolutive, suspensive, 689-91. In inheritance, 788. In legacy : casualis, 938 ; definition, 932 ; distinguished from dies, 932-3 ; from modus, 934 ; extrin- seous, 934-5 ; non faciendi, 939 ; failure, fulfilment, 935-9 ; illegal, impossible, 941 ; jusjurandi, 947 ; manumission, 176 ; in restraint of marriage, 947-8 ; mixta, 938 ; against morality, 948 ; Muciana cautio, 939 ; potestiva, 937 ; restrictions on, 937-41 ; si volet, 940. In usufruct, 406. Condominium, 337-40, 519, 553, 612-13. See Joint-ownership. Conduetio. See Hire. Confarreatio, 225, 223, 22«, 5, 19. Confessio in jure, 1003. Confiscation of goods, 1065, 1068, 1069. Confusio — Merger: ends emphyteusis, 428 ; mortgage, 447 ; praedial servi- tudes, 422 ; in dissolution of obliga- tions, 649, 748, 755 ; in joint obliga- tion, 559. Mixture of materials, chiefly licjuids, 281. Conjectio causae, 1007. Conjunctim (bequests), 915. Consanguine], 782, 836, 848, 858, 860-62. Consent — in betrothal, 695-6; in con- tract, 580; of curator, 733; in marriage, 680-81 ; of tutor, 702, 717. Consertio manuum. See Manuum con- sertio. Consideration — -illegal, 598 ; immoral, 468; valuable — contracts for, 458, 490-524, 534-6, want of, 597. Consilium — Advice (distinguished from mandatum), 483. Board, Council : Council of the King, 8 ; ■j'^ry in criminal trials, 44 ; board of manumission, 180 ; necessariorum, 6, 224, 735 ; of prffifeolus urbi, 72 ; of Prieses, 44 ; of Quajstor, 56. Consobrini, 831, 836. Consolidatio — terminated emphyteusis, 428 ; usufruct, 407. Consortium servile, 862. Conspiracy, 1066. Constitution, the Servian, 9, Constitutiones, of the Emperors, 76, 119- 120 ; generales, 120 ; personales, 120. Constitutum — Pactum tie constituto, 566- 76, 549 ; possessorium, 352. Construction cf terms in wills and legacies, 953-64. Consuetudo — diutina, diuturna, inve- terata, 119 ; revertendi (of animals), 346. Consuls, the, 11, 27, 70. Consultatio Veteris Cujusdam Jurecon- sulti, 88, 56. Contempt of court, 337, 1008. Contestatio litis, 560, 562, 631, 633, 650, 984-5, 992, 1005, 1007, 1009, 1014-16, 1028. See Litis Contestatio. Continuatio — dominii (intestate succes- sion of sui heredes), 876 ; temporis (in usucapio), 266-7. Contract, 451 seq. Aoce=iSory, 563-79 ; agency in, 609-23 ; cases analogous to agency, 623-6 ; arrangement — by Gains, 126-7, by Justinian, 458, in present work, 458, 524-40 ; bilateral, 635-6 ; in Bracton, 115 ; causa (see Causa, Consideration) — sine causa, 597-8, injusta, turpis causa, 598 ; conditio, 586-92 ; confusio, 649 ; con- sensu, 458, 642 (dissolution) ; consent, 580-84 ; consideration — illegal (injusta, turpis causa), 598, contracts for valu- able, 458, 490-524, 534-6, extension of contracts for valuable (pacta), 545-60, want of valuable (sine causa), 597-8 ; damages, measure of, 650-52 ; defini- tion, 456-7, 451, comparison with pactum, 546 ; dissolution of, 626-50 ; dolu.s, 595-8, 1071 (punishment) ; equit- able, 458, 471-90, 527-34 ; extension of «quitable, 540-45, 532-3 ; error (essen- tial, non-essential), 580-84 ; executed, executory, 535-6 ; bona fides, 537 ; force (see vis, below) ; formal, 458, 459-71, 525-7 ; fraudulent (see dolus, above) ; of freemen i;a manoipio, 602-4 ; of furiosi, 606 ; genus and species in, 580 ; heir, descent of obligations to the, 650 ; history ,and classification, 524-40 ; illegal promises, 6n0-l ; impossible promises, 598-600 ; of impuberes, 607 ; innominate real, 540-45, 532-3 ; in- terest, 652-3 ; intimidation (metus), 593-5 ; invalidating facts, 593-601- 609; joint-obligation, 551 seq.; laches, 653-4 ; Uteris, 458, 641 (dissolution) ; litis contestatio, 650 ; of persons under manus, 604-6 ; metus, 693-5 ; of minors, 608 ; modality, 584-92 ; mora, 653-4 ; novatio, 626-32 ; plnce, 584-5 ; of persons under potestas, 604-6 ; pre- scription, 615-9 ; promises, illegal and impossible, 598-601 ; quality, 580 ; io86 INDEX. Contract {continued). quasi-contract, 655 seq. ; re, 458,471, 641 (dissolution), — innominate real, 640-45, 532-3 ; releases— formal, 638- 642, non-formal, 642-5 ; remedies, 650- 54 ; rights and duties, interpretation of,- 579-80 ; rules applicable to contracts generally, 579 seq.; of slaves, 602-4 ; solutio, 632-8 ; of spendthrifts, 609 ;. time, 585-6 ; unilateral, 535-6 ; usu' fruct, to establish (in Provinces), 405 ; verbis, 458, 466, 639-41 (release) ; vis, 593-5, 1071 ; who cannot contract, 602-9 ; of women in tutela, 606j See also under the separate contracts. Contreotatio, 233-4 ; fraudulosa, 235. Contributory negligence, 246-7-, 146,,154.- See Responsibility. Contubernium, 678, 666.- Contumacia, 337, 1008. Gontutores, 554, 706-8. Conuhium, 5, 22, 25, 30, 187, 197-9, 682. Conventio— agreement, 457 ; in mauum, 126-7. Conventus juridici, 44, 180,. Conveyance, 258-90. Conviciuni, 147, 164. Convicts, 170, 162. Copy, when not admissible in evidence, 1054. Corporations — constitution, and property of (res universitatis), 314-15 ; as heirsy 799, 366 ; incertee persona, 799. Corporeal things, 287. Coi-pus — Authenticarum, 92 ;' damage done corpore corpori, and nee corpore nee corpori, 243-4 ; of dos, 297-300 ; opposed to fructus (q.v.) ; Juris Civilis, 24, 93 ; Theodosianum, 89. Correality, 551-62 ; contribution, 555-7 ; creation, 557-9 ; definition; 5.55 ; dis- solution, 559-61 ; rights and duties of correi, 555-7; correality and solidarity, 561-2. Correi — promittendi or de- bendi, 554 ; stipulandi or credendi, Soi. Correctores, 67. Costs, 1019-21 ; of appeal, 1048 ; secu- rity for, 1047. Co-sureties, 577-9. Co-tutors, 654, 706-8. Coulanges, M. de, on the gens, 839. Courts— civil, 51, 52 ; criminal, 55-60. Creditor — defined, 179, 454 ; right to action for damnum injuria, 248, for theft, 237 ; of deceased person — duties- of heir to — before Justinian,. 747-9, after inventory made, 755-6, order of priority, 755-6, duties of joint-heirs to,. 759-60, duties of fideicommissarius to; 817-22; fraud of, acquittances and alienations in, 1040-42, manumissions in, 178-9 ; joint, 551 seq.; peculiaris, 910 ; subsidiary, 563 seq.; substitution of new, 626-8 ; theft from, 236. Creditum, 472. CretEe eximendae jus, 417. Cretio, 877-9, 788-9, 793-9 ; abolition of, 879; continua, 87-8; definition, 877; perfect and iinperfeot, 878-9 ; vulgaris, 877. Crime, contrasted with Sin- and Civil Wrong, 1063. Crimen— adulterii, 687, 690-98,. 1071-2 ; expilatse hereditatis, 1072; laesse majes- tetis, lfl65 ; de peouniis residuis, 57 ; sepulcri violati, 1071'; suspectitutoris, 713,721-2, 726-7. Crimina extraordinaria, 74-75. Criminal — courts (of Republic), 55-60 ; law, 106-1 seq., (under Empire) 74-75, 1061. Criminals — may te divorced, 691-3 ; for- bidden- to marry, 687, 683. Crucifixion of slaves; 1064, 1067, 1068. Culpa— in comraodatum, 477 ;■ in deposit, 480 ;. in hire, 508-13 ;- of (person charged with) legacy, 903- ; in man- date, 487 ; in negotiorum gestio, 663 p of heir, as to trusts, 816-; of tutor, 704, 707,-7'22, 724 ; in sale, 494-5, 502.- Cum liber erit, 717.- Cum re (bonorum possessio),- 845-6.- Gura, cnratio, 732-5,-. 126, 128, 130 ; de- finition and chief cases of ,-782 ; opposed to tutela, 698.- Curatores — annonae, 43 ;- bonorum dis- trahendorum, 1038-9 ;-ludorum'Solem- nium, 46 ; of minors; and others — appointment, 733, dativi,- 734, duties, 733;. legitimi, 734, responsibility of heirs of, 7-35, security given- by, 7'34 ;, urbis,-43. Curia — oblatio curise, 202 ; privileges and burdens of the,. 202 ;. removal from,, 1005.- Curise, the, 7! Curiata — comitia, 7,-66 ; lex de imperib, 8, 76, 211, Vespasiani, 82, Custodes- (watchers), 222. Custodia,.342 ; nuda, 465. Custom- — as " customary law," 431' note ;' long-continued mores, mores dinturni,- 60, 1'19, 741' (jus quod consensu- re- oeptum est), 791, 1006; Damage— secret, defi'ni'tion of, 252-3. See- also damnum injuria.- Damages, measure of, 650-52 : — in pro- perty (damnum- injuria), 330-31 ; in condiotio indebiti, 661 ;- in injuria, r54-5 ; de sepulcro violate, 317 ; de servo' corrupto, 183.-4 ;. in- stipulation, 4B4 ; in theft,. 327. Damnas, 889. Damnationem, legacy per, 889-93, 894-7. Damnosa hereditas, 748. Damnum infectum, 39, 495, 975 ; stipu- lation, 465. INDEX. 1087 Damnum injuria, ICG, 18^, 242-8, 252-3, 330-31 ; elements of, 243 ; compared with damnum,. 245,, with injuria, 245 ; what damage supports an action, 245 ; measure of da,mages, 330-31 ; noxal action for, 184 ; permissible, 247 ;. what persons^ besides owners,- may sue for, 247-8. Dardanarii, 1067^ Dare, 453. Datio— dotis, 304, 466 ; ususfructus, 404'. Deaf and dumb — curaof, 732 ser|. ; could- not enter iiito stipulation, 461 ; testa- menti faotio, 794, 796, 803 ; could not be tutores, 717. Debitor, debtor, 454; 453 ; joint-debtors; 551 seq. ; jjid^'meut debtor made slave; 169 ; legacy of release to,. 913-14 ; sub- stitution of new, .631-2. Debts, 466-71 ; discharge of,. 632 seq.; hereditary, liability for, in coemptio in manum, 741-2, contracted by person adopted, or woman married, 741-2, lia- bility of heir for debts of deceased, 747 ; judgment (see Judgment debt) ; nova- tion, 626-32; as set-oflF, 1J318.- See Nomina. Decapitation, 106'4, 1065; Deceased wife's sister, 686. Decemviri — judices^ 15, 26, 49-50 ; legi' bus scrihendis; 15 ; litibus jadicandis^. 49, note 3. Decency, offences against, 106r-8.- Decisiones Quinquaginta, 90. Decretum — of Emperor, 76 ; of praetor, 41, 998, 1000. Decuriones, 202 ; legacy of ai Latin per mndicationcm, to- a colony,- 889 ; pro-* perty of intestate, 866. Deditio noxalis, 166-7, 197, 1X)34. Dedititii,. L28, 199, 675-6 ; intestate suc- cession to, 874 ; testamenti-factio^.795, 798 ; trusts, 824. Dedititii peregrini, 675". Deductio — de peculio, 604'; in case of sacramentum,. 978 ; set-off, 993-5 ; ususfructus,. 404- ; uxoris in domum- mariti, 682.- Deduoto usufructu, 404i Defence — equital-ile, 989-93, TOIS-IT"; imnroper (penalties- for), 1019-20. Defendere, meaning of (in clause of jjidi- catum'solvi stipulatio), 1025-6,- Defensor, 1026. Defensores civitatutn, 74, 714. Degradation (of- i-anli), 1065, 1067, 107:0, 1071. Decrees of propinquity, 830-32; Dejecta, 153-4, 1.55, 552. Delatio — criminis, or- nominis, fS ; here- ditatis 876. Delegatio, 626, 630, 631-2. Delictum, 135, 126-7, 131, 137; privatum, 74-75 ; of slave, 168. Delivery. See Traditio. Dementia, 606. Demonstratio— of formula, 987, 989, 993, 996 (variance), 1057 (proof of facts) of object of legacy, 924, falsa, 923. Dennnciatio — to free woman cohabiting with slave, 170 ; litis, 972. Deportatio, 218, 192, 1061, 1062, 1065-71. Depcsitio et obsignatio (formal tender), 637. Depositum, 479-82, 527, seq. ; miserable, 1074 ; no set-off in action on, 1017 ; theft under contract of, 239. Derelictio, 257-8. Desertion to the enemy, IOCS, 1066. Detentii), 342. Determinatio, in legacy, 924. Detestatio sacrorum, 766. Deversoriam, 444 (hypothec). Dictatorship, the, 25. Dictio-dotis, 466, 304. Dies, 587, etc. : — in diem addictio, 590 ; dies cedit, dies venit — in contract, 587, inlegacy, 930-32, 896 ; certus, incertus, 587, 933 ; comitiales, 52 ; comperen- dinus, 1007 ; endotercisi (or intercisi), 52 ; fasti, nefasti, 10, 24, 52, 1044 ; juridici, or judiciarii, 52. Djffarreatio, 227. Digest, the, 90-91, 123, 139 ; Digestum Novum, 101 ; Vetus, 101. Beferences tb, passim. Dignitas, loss of, involves no capitis minutio, 215. Diligentia. See references under Culpa. Dipondius, 229. Directarii, 149, 1070. Diriment impediments to marriage, 683. Disease, contagious, wills of persons suf- fering from, 772-3. Disherison, 774-9, 783-4 ; explanation of pule, 774-5 ; grounds for, 783-4 ; modes — nominatim, 774, inter CEeteros, 774 ; no disherison by codicilli, 827 ; who, if not made heirs, must be expressly dis- inherited, 775-9. Disjunctim (bequests), 915. Dispensator, 165, 229. Disseisin, 250-51>. Distractio^bonorum, 1039 ; pignorum, 437. Divinatio, in criminal proceedings, 58. Divorce — Divortium, 689-94 ; form, 690 freedom of, 601, 679, 690-91 ; grounds, 691-3 ; by nmtual consent (bona gratia), 689-90, by one party alone, 690-93, by paterfamilias of wife, 689 ; legislation regarding, 691-3 ; provision for children, 693-4 ; restraints on, 693-94. See also Repudium. Documents — admission and exclusion of, in evidence, 1054-5 ; production of, 1059 ; proof of authenticity of, 1059. Dolus, 593-8, 171, 236, 239, 241, 249-50, io88 INDEX. Dolus {continued). 1040-42, 1071. See references under Contract, Culpa. Dominium, 231 seq., 223, 309. See Ownership. Dominus— emphyteuseos, 426-8 ; invitus (furtum), 234-5 ; proprietatis nudae, 384 note, 386, 397; rei gestse, 664 seq. See Ownership. Domus— instructa, 907 ; cum inetru- mento, 907 ; domus quteque mea ibi erunt quum muriar, 908. Dona deorum, 752. Donatio — mortis causa, 915-17, 115, 321, 751, 898, 916-17 tuompared with legacy) ; ante vel propter nuptias, 308-9, 442, 682, 692-3 (how affected by divorce), 782 (legitim) ; inter vivos, 318. How far adopted in English law, 113, 115. Donationis pactum, 550. Dos (dowry), 295-308, 67« ; adventitia, 297, 305-6 ; dntio (giving of), 304 ; definition, 295 ; gift of (with marriage to a freeman), involving liberty, 177 ; dictio (promise of), 304, 466 ; exactio, 683 ; father having means must give to daughter, 677-8 ; husband's rights to corpus of, 297-300, to income and produce of, SCO, expenditure upon pro- perty included in, 301-2 ; husliand's power of alienation, 299-300, his duties as to, 302-4 ; hypothec over, 444 ; legacy of, 911-12; legitim, 782; pactum de eonstituenda dote, 550; prsedium dotale, 299 ; priority, 442 ; profectitia, receptitia, 297, 305-6 ; re- covery and restoration, 304-8, 691, 574 (sureties for) ; remedies, 307-8 ; re- tentio, 307 ; tacit resettlement of, 304 ; Rufus's work on, 295 ; promised by woman, 573 ; woman must have tutor in settling, 728. In Bracton and Fleta, 115. Dotale praidium, 299. Ducenarii, 45. Duplicatio, 992. Dupondii, 80. Duties and Rights : the basis of the classification in this work, 132 ; divi- sions ofj 133 ; negative, 133, 134 ; positive, 133. Duumviri, 25, 56. Ebeiosus, 691. Ecloga Legum, S4 ; ad Prochiron mutata, 96. Edict— of eediles, 34-35, 249, 331, 535; Carbonianum, 886 ; of Emperor, 76 ; magistratuum, 12, 34, 60, 75, 76, 119, 120 ; peremptorium, 1008 : perpetuum, 34, 35, 67, 75-6, 83, 123.- Prsetor's, 34 seq., and passim (see behiw) ; pro- vineiale, 35 ; in rem, 134 note ; Theo- Edict (continued). dorici, 89 ; tralatitium, 35 ; nrbanam, 35. Edict of Praetor, 34 seq. : actio noxalis, 184 ; actio Publloiana, 263-4 ; adjoin- ino- proprietors, 253 ; adjournments, 285-6; agency, 623, 614-15, 617; Bonorum possessio (q.v.) ; commo- datum, 475-6 ; convicium, 147 ; cor- rupting slaves, i64 ; damnum injuria, 243 seq., 330 ; de glande legenda, 2^54, 333 ; desuspensis, 153-4 ; deposit, 479 ; ■equitable contracts, 627 seq, ; filius- familias (injuria to), 195-6 ; formulse, 980 seq.; heir, 875-7, 886; heir and legatee, 917, 952 ; injuria, 146-156, 164-6 (slaves), 195-6 (children); in- terdicts, 997 seq. ; intestate succes- sion, 840-63, 866-9 (freedinen) ; lex Aquilia (extension of), 146, 244 ; libel, 148 ; manumission (private), 172-3 ; negotiorum gestio, 661 ; pacta, 546-9 ; pater fiduciarius (fraud by), 213 ; pauperies, 248 ; pecjmia constituta, 566-8 ; penalty for injuria, 154-5 ; possession .(q.v.) ; prescription, 289 ; slander, 148 ; slaves — corrupting, 164, injuria to, 164-6, runaway, 163, theft by, 210; summons, 969-71; Msucapio, long possession equivalent, 289, rescission of, 271 ; vi bona rapta, 241, 332 ; wills, 768-9. Edictiiles, 80. Editio actionis, 983. Education, legal, 55, 79-89. Efltractores, 1070. Effusa, 153-4, 155, 552, Ejectment, forcible, from lands, 250, 1070-71. Electio — in legacy, 928 ; in alternative stipulation, 579-80, Emancipatio, 212-14 : ancient form (based on triple sale), 212-13 ; under the Anastasian rescript, 213 ; Justinian's alterations, 214 ; voluntary on both sides, 212. Emancipated brothers or sisters — intestate succession, 858. Emancipated child — child and parent, 676-8, 130 : disherison of, 778 ; intestate succession of, 849-54 (fathers), 855-7 (mothers). Embezzlement, of public property, 45, 57, 1071, lCfi2, 1067. Emperor, the, 71, 76 ; liis council, 71. Emphyteusis, 426-9, 383 ; alienation, 427, 429 ; creation, 428 ; definition, origin, and nature, 426 ; forfeiture, 428 ; rights of empliyteuta, 427 ; use and enjoyment {utendi fruendi), compared with right of fructuarius, 427 ; is he in law owner? 423 ; compared with ownersliip, 383 ; remedies, 429 ; ter- mination, 428. INDEX. 1089 Employer and worlcman, 512-13. Eiuptio bonorum, 994-5, 1038, 1042. Emptio-venditio. See Sale. Emptor familice, 707-8, 769, 803-4. Bnohiridium, 100. Epanagoge Legis, 95 ; Aucta, 96. Epigrammata, 148. Episoopalis audientia, 74. Epistulse, imperial, 76. Epitome Lejjum, 96 ; ad Prochiron mu- ' tata, 96. Equitable contracts, 458, 471-90, 527-34 (history). Equites, the, 9, 44. Eremodioio, in, 1008. Ereptitiam legatum, 915, Ergastula, abolished, 158. Erro, 501. Error — falsae causae, 270 ; in statement of claim, 1018 ; in contract — in corpore (essential), 581-2, in substantia or ma- teria (non-essential), 582-4 ; of fact, of law, in quasi-contract, 660, affecting bona fides in usucapio, 268 ; in legacy, 923-6 (in corpore) ; marriage under (as to status of one of the parties), 199- 200 ; recovery of money paid in, 657- 661, 894, 923. Escheat, laws of, 789. See Caduca. Eunuchs — cannot adopt, 211. Eviction— in hire, 508 ; in sale, 493, 495- 498, 502, 817. Evidence, 1049-60 ; admission and ex- clusion of, 1051-3, 1054-6 ; circum- stantial, direct, 1050-51 ; defined, 1050; object of, 1049-51 ; rule of (what is, and is not, a), 1051 ; sufficiency of, 1056-7 ; who cannot give, 1055-6. See Testimony, Witnesses. Exceptio, 40, 133 note, 989-92, 1015-17 ; nature, objects, and form of, 990 ; not used in Legis actio, 1015 ; iu extraor- dinary procedure, 1016-17 ; when fail- ure to use ia fatal, 991 ; defendant must prove the facts alleged in, 1057. Exceptio cognitoria, 991 ; cohserens personse, 133 ; cohserens rei, 133 ; dila- toria, 991, 1017, 1027 (procurator); doli, 470, 594, 598, 6.30, 633, 642, 700, 846, 847, 891, 916, 925, 990 ; in factum com- posita, 594 ; jusjurandi, 1016 ; litis dividuae, 991, 996 ; metus causa, 594; nisi bonis cesserit, 576 ; non numeratse pecuniae, 470-71 ; pacti conventi, 576, 589, 630, 642, 913, 914, 990, 991 ; per- emptoria, 990-91, 1017 ; perpetua, 660, 1017 ; procuratoriffi, 1027 ; rei. alijnas a fisco emptae, 272 ; rei in judicium de- ductae, 1015 • rei judicatae. 1 115, 1 016 ; rei residuae, 991 ; temporalis, 1017. Exceptores, 293. Exchange (permutatio), 541 , 491. Excusationes — curatorum, 734 ; tutorum, 718-21 726-6. Execution of Judgments, 1029-44; against the person, 18 (XII. Tables), 1034-36, 1033 ; against property, 1042-44, 1033 ; by sale of debtor's universal succession, (bankruptcy), 1036-42. Exemplum (copy), 1054. Exemptions from serving as curator, 734 ; as tutor, 718-21, 725-6. Exercitor, 617-18. Exercitus, 10. Exheredatio (disherison), 774-9, 783-4. Exilium, 1065, 1067, 1069, 1071, 1072. Existimatio, loss of, 1038-40, 1043. Expenditure — beneficial, necessary, orna- mental. See Impensse. Expensilatio, 466-71, 525-7, 537 ; no con- dition attachable, 589 ; novatio, 629 ; release, 641. Experientia Eomani-, 96. Expilata hereditas, 1072. Expressa nocent, non expressa nonnocent, 941. Expromissio, 468-9, 631-2, 565, 626, 630. Extortion by provincial governors, 57, 1063. Extrajudicial Remedies for debt, 1044. Extranea persona (outsider), 324. Extraneus heres, 834, 871-2, 876-81. ExtraordinaricE cognitiimes, 1013 ; extra- ordinaria crimina, 74-75 ; judicia, 1012, 1029, 1039. Facere, 453 ; non facere, 453. Fact, questions of, 1049 ; relevant and irrelevant, 1052, 1053. Falcidia — lex (see Lex Falcidia) ; quaita, 750-2, 760, 819, 820, 882-3. Falsum, 57, 1062. Familia — the family, 5 ; early limits and conditions of, 203-4 ; early quasi-part- nership of father and children in the property of, 774-5 ; under XII. Tables, 259. Familiae emptor, 767-8, 769, 803-4. Familiae erciscundae judi- cium (or actio). See Judicium. Farm. See Fundus. Farm stock, rights of usufructuary in, 399. Farmer, 398, 447, 507 seq. Fees (advocate?'), 513, 1013, 1028. Fenus. Sec Interest. Fenus nauticum, 474. Ferise — imperiales, repentinse, solemnes, 52. Fetials, 1 0. Fiction, 40, 263, 342, 741-2, 843, 1037. Fideicommissum — introduction of, 809-11, 824 ; definition, 812 ; in classification of Gaius, 126 ; as affecting position of heres, 812-22; fideicommissarius, 813 ; duties of heres to fideicommissarius, 813-16 ; duties of fideicommissarius to heres, 816-17 ; duties of fideioommis- sarins to creditors and legatees — legis- logo INDEX. Fideicommissnm (continued), lative changes, 817-22 ; as enlarging the power of substitution, 822-4 ; power of appointment, 823 ; a trust upon a trust, 823 ; as removing testamentary incapacity, 824-5 ; of freedom, 175-7, 186 (remedies) ; instruments creating (will, letter or spoken words, or nod, codicils), 825-30; mora, 894; form, 894-5 ; modality, 895 ; restrictions as to object of bequest, 895, as to persons capable of being legatees, 895-6, as to causa, 896 ; release, 896 ; remedies, 896. See Codicilli, Legacy. Pidejussio, fidejussor — definition, 565-6 ; distinction from pactum de constituto, 567-8 ; extinction, 575 ; ■ form, 570 ; prasscriptio in action against fidejussor, 993 ; restrictions, 571 seq. In case of co-sureties, 577-9 ; in case of tutores, 716. Fidepromissio — definition, 565 ; extinc- tion, 675 ; form, 570 ; restrictions, 571 seq. In case of co-sureties, 577. Piduoia, fiducis contractus, 431-7, 528 seq., 850-51 (emancipation). riduciarius (-aria) — coemptio, 731, 795 ; pater, 213, 712 ; tutela, tutor, 712-13 (impuberum), 730-31 (mulierum). Filiafamiliaa, 194 ; disherison of, 776-7, 779 ; dowry of, 850 (hotchpot). See Child, Filiusfamilias. Filiusfamilias, 194, 189-93; agent^in contract, 610 seq., in conveyance, 323, in possession, 354, 356-7 ; restrictions on his power to borrow, 473-4 ; inca- pacity to contract, 605-6 ; anciently suable for delicts, 197 ; disherison of, 775-7, 779 ; injuria to, 194-5 ; labour of, 189 ; loans to, 473-4 ; peculium, 292-5, 605-6 ; peculium castrense, 605' 606, 797, 803 ; property of, 189 ; sur- rendered in mancipio, 196-7 ; testamenti faotio, 794 seq. ; could not be tutor, 717. See Potestas. Finance Ministers, provincial, 73. Fines, 1065, 1069, 1071-2. Fire-raising, wilful, 1071. Fiscus — caduca, 758 ; claimed inheritance in absence of heirs ab intestato, 806 ; claimed trusts left to aliens, 824 ; for- feiture of inheritance to, 882-3 ; hypo- thec of, 443 ; prescription of actions competent to, 649 ; priority of, 442 ; property of, not susceptible of usu- capio, 272 ; successor of man whose memory is condemned, 835. Fishing — in harbours, rivers, sea, 310. Flamen— Dialis, 220, 223, 225, 227 ; Martialis, 225 ; Quirinalis, 225. Fleta, Roman law in. 111. Florentinte Pandectag, 101. Flumen, 313 ; distinguished from rivus (stream), 313 ; perenne, torrens, 313. Fluminis recipiendi vel non reoipiendi jus, 417. Food, raising price of, 1063, 1067. Fora, 32. Force. See Vis. Foreclosure of mortgage, 437-8. Forfeiture — of emphyteusis, 428 ; of in- heritance to Fiscus, 882-3 ; of freed- man's independence for ingratitude, 170, of son's, 212; of patria potestas, 220 ; of master's property in a slave, 183. Forgery, 57, 1062 ; of chirograph, 1071. Formal contracts, 458, 459-71, 525-7 (history). Formalism of Eoman law, 23-24, 38, 325. Formulae— system of, 980-1011, 38, 68, 974 ; transition from Legis actionesto, 980-83 ; transition from, to Judicia Extraordinaria, 1012-13; in an actio, 983-97 ; proceedings to obtain, 983 ; parts of, 987-9 ; technicalities abol- ished, 69, 1013. Formula arbitraria, 998-9 ; in fac- tum ooncepta, 40, 986-7, 981 ; in jus concepta, 40, 986, 987-9 ; peti- toria, 368, 983 ; praejudioialis, 987. Formulae juris abolished, 69, 1013. Forum, 51. Fossa, 313. Foster-child, 181. Fraud — in alienation, 1040-42 ; upon creditors, in manumissiim, 178-9 ; sale of freeman, 171 ; removing landmarks, 239 ; theft, 233 seq. See Dolus. Fraudationis causa latitare, 970. Freedman, 33, 128, 130, 138, 140, 170, 171 ; ingratitude of, to patron, how punished, 170 ; falsely representing himself as freeborn, 1071. See Liber- tini. Freedom. See Libertas. Freeman, 127, 128, 171 ; as agent, in contract, 617-21 ; illegal detention of, 186 ; fraudulent sale of, 171 ; know- ingly treated as slave, 147, 149, 153. Fruetuaria stipulatio, 1002. Fructuarium judicium, 1002. Fructuarius, 398 (see Ususf ructus) ; might bring causa liberalis, 184. Fruetus, 335, 399-401 ; 439, 444 (mort- gage) ; 901-3 (legacy) ; civiles, 335 ; consumpti, percepti, 336 ; falling on another's land, 254 ; licitatio, 10U2-3 ; perceptio, 398 ; separatio, 398. Fuga lata, 1065. Fugitivus, 500, 599. Fundus — totalis, 299 ; emphyteuticariuB, 426 ; instructus, 907-8 ; cum instru- mento, 906.-7 ; legacy of, 906-7 ; with everything on the premises, 908. Furandi affeotus, 236. Furiosi — oura of, 732-5 ; incapacity in- INDEX. 109 1 Furiosi (coniimied). herent, 130 ; incapable of committing injuria, 153, of contracting, 006, of being tutores, 717; marriage of children of, 681 , testament! factio, 794, 797, 803. Furniture, 907-9, 953. Furor, 606. Furtiva— condictio, 237, 325, 329, 552 ; res, 325. Furtum — abetting, 240 ; actions for, 325- 30 ; noxal action for, 184 ; who (not being owner) could bring action for, 237-9 ; who could not bring action for, 239 ; aggravated, 327 ; might be com- promised (under XII. Tables), 18 ; con- ceptum, 21, 328, 1019 ; definition and derivation, 233 ; definition adopted by Bracton, 116 ; elements of, 233-7 ; of immoveables (could there be ?), 233 ; compared with injuria, 235 ; manifes- tum, 326, 1019-20 (costs), 169, 1073- 75 (action, penalty) ; of moveables, 233 ; nee manifestum, 326, 1019-20 (costs), 21, 1073 (penalty) ; nocturnal, 21 ; oblatum, 21, 328, i020 ; penalty for, 21, 169, 326-7, 1073 ; of possession, 236-7 — from creditor, 236, by owner from iona Jlde possessor, 237, case of mala fide possessor, 237, under contract of deposit, 236, under contract of loan, 236 ; criminal punishment of, 1070 ; of use (usus), 235-6, Gaius — 77, 84-85 ; classification of Insti- tutes of, 124-132, 139 ; defects of, as a text-book, 139. Gens, 6, 838-9. Gentiles, 6, 19, 838-9 ; intestate succes- sion of, 837-40, 848. Genus and species, 580. Gift — to concubines or natural children, 321-2 ; between husband and wife, 319; confirmation of invalid, 320-21. See Donatio. Glans, 254, 333, 335, 398. Gloss, the Great, 1 00. Glossators, the, 99-100. Governors, provincial, 44, 67, 72, 687, 695, 882, 887, 896, 1063, 1067. See Praeses provinciffi. Grffico-Roman Law, 93. Grandfathers and grandchildren — intes- tate succession of, 854-5. Giiterbock, Prof. Dr., on Bracton's obli- gations to the Eomau law, 108-116. Habeke liceee, 495. Habitatio, 411. Handwriting, in evidence, 1055, 1059. Harbours, rights in, 310. Hasta, symbol of Quiritary ownership, 49, 259. Hearsay, generally excluded, 1055. TTcii. llit"t'i>s\ 74.4. KRO. * dp.finifcii-n. 744-.*). Heir {conti-nued'). 813 ; extraneus, 834, 871-2, 876,-7,-8, 879-81 ; Cdeloomlnissarius, 813 seq. ; Hindoo, 745-6 ; indignus, 882-3 ; joint, 757-63 ; necessarius, 875,179 ; sine re, 776, 845-6 ; 775,-6,-8,-9, 799, 805, 808, 833-5 (succession of), 839, 882; suus et necessarius, 876, 879-81 ; possessors 'pro hcrede, 885. Appointment (institutio), 786-8 ; cap- tatoriEe institutiones or scripturte, 947; pro heredegerendo, 877, 879- 881 ; substitution, 788-94. Semd heres semper hercs, 882. Duties — prior to Justinian, 747-54, to creditors, 747-9, to legatees, 749- 754 ; — after introduction of inven- tories, 754-7, to creditors, 755-6, to legatees, 756-7 ; converted into mere executor, 755. Incapacity of (testamenti factio), 798-802. Eights, 747. Descent of obliga- tions to, 650 ; responsibility of heirs of curators, 735, of tutors, 724-5. See Inheritance, Bonorum Possessio, Fideicommissa. Hereditas — in classification of Gaius, 126; damnosa, 748 ; fideicommlssaria, 809- 830 ; jacens, 802, 898-9 ; legitiiua, 880. Hereditatis aditio, 875-81 ; delatio, 876 ; expilatffi crimen, 1072 ; peti- tio, 806, 884, 886, possessoria, 843 ; partis petitio, 886. See Inherit- ance, Heir. Heretics — dotes, donationes, to children, 309, 681 ; slaves of (freed on accept- ance of Christianity), 183 ; succession, 864 ; testimony of (excluded), 1056 ; wills of, 797 ; not witnesses to wills, 803, Hexabiblos, of Harmenopulos, 97. Highways, 311-13. Hindoo law — adoption, 205 note ; inherit- ance, 745-6 ; Narada, 122. Hire (locatio conductio), 505-16 : defini- tion, 505 ; dissolution of contract, 513- 514; no historical connexion with stipu- lation, 535 ; differs from sale, 506, from superficies, 507 ; payment {merces certa), 605, 509; remedies, 514; rights and duties, 507-13 ; theft under contract of, 238. Eire of Services {operanim) : 506-7, 511-13 ; distinction of services, 511 ; confusion of the Eonian jurists, 511 ; workman and em- ployer, 512-13 ; rtsponsibility of workman, 512-13. Bire of Things: 506-7,508-11; evic- tion, 508, 509 ; faults — warranty, 509 ; fixtures, removal of, 509 ; ren]ission of rent, 60S, 509 ; re- pairs, 608, 509 ; responsllilllty for thing hired, 508, 510 ; subletting, 508. I092 INDEX. Homicide, 1069. Honorarium, 482, 490, 513, 101 3, 1028. Horrearii, 513. Horreum, 444 (hypothec). Hotchpot, 783, 850, 858. House — 907-8 (see Domus) ; forcible entry to a man's, 149 ; legacy of, 905-8 ; rights of usufructuary in, 400, of usu- ary, 410. Housebreakers, 1070. Household, the, 5. See Familia. Humanists, the, 102. Hurt, when an injuria, 150-2. Husband and wife, 678-96, 130 ; gifts be- tween, 319-20 ; intestate succession of, 863. See Marriage. Hypotheca. See Pignus and Hypotheca. IGNOMINIA, 875. Ignorance of fact and of law, 660. lilata, 444. Illegitimate children, 677. lUustres viri, 156. Imaginaria— solutio, 639, 641 ; venditio, 492. Immixtio, 876-7, 879-81. Immoral consideration, 468. Immoveables, 249 seq. : conterminous {rights of owners of), 253-5; depriva- tion of owner of simple possession of, 249-51 ; offences against ownership of, 1070-71 ; rights to, 249 seq., to enjoy- ment and use of, 251 seq.; no robbery of, 250 ; no theft of, 249. Impediments to marriage, 682-8. Impensse — necessarias and utiles, 278, 301, 302, 307, 336-7, 338 (joint-owners), 440 (mortgage) ; voluptarise (orna- mental), 302, 478 (coramodatum), 481 (depositum), 488 (mandatum), 603 (sale), 904 (legacy). Imperium, 7, 8, 14, 41. Impetratio actionis, 1013. Impossibility — of conditions^ in contract, 591-2, in legacy, 936-8, in bequest of liberty, 176, 937 ; of performance (when equivalent to actual performance), 637-8 ; of promises, 598-600. Impos- sibilium nulla obligatio est, 599. Imprisonment, 1065, 1069 > for debt, 1035-6, 1043. Improvements, compensation for, 277-81 (acoessio), 301 (dos), 337, 440 (pignus). Impuberes, 696 seq.; inherent incapacity, 130 ; incapacity to contract, 607, to marry, 683 ; no testamcntifactio, 797-9, 803. In bonis habere, 263-5, 612, 674, 713. In diem addictio, 590-91. In judicio, proceedings, 23, 117. In jurs, proceedings, 23, 116, 973-80 (legis actio), 980-97 (formula) ; cessio (see Cessio in jure) ; confessio, 1003 ; in- terrogatio, 1003 ; jusjurandum, 1005. In jus vocatio, 967-73. Injedificafcio, 276. Incapacity, legal, 129, 130._ Inceudium, standing commission on, 57. Incerta persona — who is, 799, 922; sub certa deraonstratione (id est, ex certis personis), 922 ; cannot be heir, 798-9 ; unborn child was, 799 ; corporation, or municipality was, 799 ; legacy left to, 922-3; tradition to,284; trust left to,825. Incerti condictio. See Condictio. Inoertus dies, 587, 933. Incest, 1068. Incorporeal things, 287. Indentures, 469. Inde.x, 1054. Indian Penal Code, 1053. Indictio, 403. Indigni, 882-3. Inductiones, 805. Indutise quinquennales, 1040. Infamia, 431-2 note; of bankrupt, 1038-40, 1043, 1061 ; of removed curator, 735 ; from depositum, 482 ; of heirs. 782 ; from committing or instigating injuria, 155 ; from mandatum, 490 ; of patron, 667 ; of partner, 1021 ; of removed tutor, 727. Infantia, 701. Infantiae proximi, 153, 607, 701. Infanticide, 190-91. Infortiatum, 101. Ingenui, 667, 718. Ingratitude, forfeiture of independenre for— by child, 212, by freedman, 170, 668. Inheritance,739-887,19 (XII. Tables); de- finition, 739,744-5; classification, 126-7, 138, 1 40 ; chief form of universal succes- sion, 740 ; influence of Roman on En- glish law of , 114 ; comparison of Hindoo law of, 745-6 ; in jure cessio of, 881-2 ; division of, 761-2; heir— rights and duties of, 745-63, joint-heirs, 757-63 ; legacy of, 914-15 ; offences as to, 1072 ; lona fide possessor, 885-6, mala fide possessor, 885-6 ; remedies, 883-7 ; in- testate succession, 830-74, praetorian innovations,. 840-63 ; testamentary suc- cession, 764-830 ; untransferable and indivestible, 881-2 ; vesting of (aditio hereditatis), 875-81. See Heir, Here- ditas. Injuria, 20, 145-156, 166, 240 : compared with furtum, 235 ; Bracton follows the Institutes as to, 116 ; definition, 145 ; meanings, 150 ; forms, 146-50 ; aggra- vated (atrox), 155, 1069 ; circumstances rendering infliction of pain or hurt an, 150-52 ; to slaves, 164-6 ; who could not commit, 153; who could not sue for, 153; who could not sufFer,153 ; vicarious responsiljility for, 153-4; remedies, 154-6, 1073-4 ; criminal prosecution for. INDEX. 1093 Injuria {continued). 150, 1069 ; condemnation carried in- famy, 155 ; heirs of wrongdoer not liable, 155-6 ; prescription in action for, 156 ; indulgence to officials of rank sued for, 156, 1069. Innkeeper's responsibility (furtum), 241. Innominate real contracts, 540 seq. Inofficiosum testamentum, 780-'<2, 785. Inquilinus, 162-3, 444, 507 seq.; oastro- rum, 720. Inquiry. See Inquisitio, Causa (cognita). Inquisitio, by Praetor— before appoint- ment of curator, 734, of tutor, 709-10, 706. Inscriptio, in criminal proceedings, 69. Insinuatio, 178, 309. Institor, 618-20. Institutes— of Gaius, 84-85, 124-32 (clas- sification), 139 (defects, as text-book); of Justinian, 91-92, 124-32 (classifica- tion), 139 (defects, as text-book). Institutio heredum, 786-8; captatoria, 947. Instructus (-a) — domus, 9u7 ; fundus, 907, 90S. Instrumentum — domestica, 1055 ; dotalia, 937 ; of farm, and house, 335-6, 906-7 ; nuptialia, 834. Insularius, 404, 619. Insult — to the dead, 147 ; in pictures, 148 ; in public, 147. See Injuria. Intellectus, 701. Intentio — of formula, 988, 989, 996 (variance). Intention — in delivery (traditio), 283-4 ; in injuria, 146, 148, 150-51 ; in pos- session, 341-57 (see Animus) ; in theft (furtum), 234-5. Intercessio — of tribune, 14 note, 27, 565, 1045 ; by woman, 573-4, 631. InterJictio aqua et igni, 218, 187, 694, 795, 1061, 1065. Interdictum, 40, 41, 135, 137, 982, 1013 ; nature of, and comparison vfith actions, 998-1001 ; possessory, 342-74 ; pro- cedure in, 997-1003. Interdictum — de aqua cottidiana et zestiva, 424 ; de arboribus cstlen- dis, 333, 409 ; de clandestina possessione, 351 ; de cloacis, 425 ; de fonte, 425 ; de glande legenda, 254, 333, 997 ; de inspioiendo ventre, 222 ; de it- Inere aotuque private, 387, 388 note, 403, 424, 997, utile, 388 note ; de liberis exhibendis et ducendis, 221, 997 note ; de libero homine exhibendo, 186, 997 note ; de mifrando, 514 ; de mortuo inferendo, 317 ; de precario, 381, 412 ; de rebus sacris, 997 note ; de ripa munienda, 314 ; de rivis refioiendis, 424 ; de superficie, 430, 997 note : de vi cottidiana, 332 ; Interdictum (continued). de vi et vi annata, 250, 332, 409, 997 note ; duplex, 359, 373 ; for emphyteusis, 429 ; exhibitorium, 359 ; fraudatorium,1042 ; ne quid in flumine publico fiat quo aliter aqua fluat atque uti priore sestate fluxit, 314 ; ne quid in flumine publico ripave ejus fiat quo pejus navigetur, 314 ; ne quid in loco publico vel itinere fiat, 312, utile, 310 ; ne qiud in loco sacro fiat, 338; possessoviuro, 1038 (Gr. 4, 145) ; posses.-iionis adipiscendse, 448, 842, recuperandje, 250-51, retinendse, 367-8 ; prohibitorium, 350, 998 ; quasi-Salvianura, 448, 997 note ; qund legatorum, 385, 952 ; quod vi aut clam, 252, 332-3, 341, 342, 357 seq., 409, 514, 997 note ; quorum bonorum, 842-5 ; 886-7, 997 note ; for re- pairs, 424-5 ; restitutorlum, 359 ; Salvianum, 448, 997 note, 1000, utile, 4d8 ; sectorium, 1036 ; secundavium, 1002-3 ; for servi- tudes, 423-5, 997 note ; simplex, 359, 373 ; imde vi, 250-1, 342, 357 seq., 116 ; ut in flumine publico navigare liceat, 31 3 ; uti possidetis, 357-9, 116, 253, 333, 362, 365 seq. (history), 997 note, 1001 ; utrubi, 357-9, 365 seq. (history), 997 note, 1001. L'ti possidetis and Utrubi — conjec- tural date of introduction. 374 note ; their purpose, later and original, 365-6 ; possible origin of Uti possidetis in the necessities of private holders of the ager pub- licus, 367 seq.; views of Niebuhr and Savigny, 367 ; possible also that interdicts were first introduced to protect the proprietary interests of peregriui, 367-9 ; first hypo- thesis accounts for Uti possidetis, the other accounts for both Uti possidetis and Utrubi, 370 - 1 ; ownership extended to peregrini through possession, 371 ; parallel in case of Inheritance, 371 ; cor- roboration of conclusions reached, from peculiarities of interdict pro- cedure, 372 seq.; profound differ- ence between Uti possidetis and Utrubi on the one hand, and the rest of the interdicts on the other — as Unde vi, 372, and Quod vi aut clam, 373 ; correspondence of this difference with a difference in Pro- cedure, 373-4. Is the hypothesis of the origin of possessory inter- dicts in the necessity of establishing a wider basis of ownership, con- I094 INDEX. Interdictum [continued). sistent with the characteristic rules of the law of Possession ? 375 seq. ; title no defence, 375 ; Animus domini, 375-S8 (see under Possession). Interest, 652-3, 21 ; compound {usurce ijSMrai'wm), 653, 1032 ; usnrae legitiinse, 652, 724 ; pupillares, 723-1 ; fenus semiunciarium, unciarium, 652 ; on pecunia trajectitia, 475, 653 ; on pur- chase money unpaid, 503 ; on trusts, 894 ; when stopped by tender of prin- cipal, 637. Interitus rei, effect of — in emphyteusis, 428 ; in legacy, 903, 951 ; in mort- gage, 447 ; in discharge of obligation, 637-8 ; in servitude — personal, 408, preedial, 423. Interpretation — of wills and legacies, 953-64. Interrogatio in jure — in criminal jiro- ceedings, 59 ; interrogatories, 1003-5 ; actio interrogatoria, 1004-5. Intestabilis, 2], 148, 432 note, 803. Intestate succession, 830-74 : intestatus, 833 ; to freeborn persons, 830-66 ; to freedmen, 866-74 ; in Gaius, 126 ; names and degrees of relationship, 830-32. Under XII. Tables, 833-40— of sui heredes, 833-5, of agnati, 835-7, of gentiles, 837-40 ; Prsetorian Edict (Bonoram Possessio, q.v.), 840-63, defects of XII. Tables, 848 ; Jus- tinian's final reforms, 863-5. Ex- chequer as heir, 865-6. Intimidation, ;.93-5. Inundatio, 276. Invecta, 444. Inventory, 751, 754-7. Invito domino, 234-5 (furtnra). Irrelevance. See Relevance. Isaurian Law, the, 94. Islands, formed in rivers, 275-6; in sea, 256. Iter, 415, 419, 424. See Interdictum. Iteratio, 674. Jaotu, lex Ehodia de, 514-16. Jettison, 514-16. Jews — dos and donatio to children, 309 ; marriage, 687 ; slaves of, 183 ; testi- mony, 1056. Joint-creditors, Joint-debtors, 551 seq. Joint-heirs, 757-63, 553 : how consti- tuted, 761-3 ; rights and duties as between themselves, 757-9 ; rights to res hereditarice, 757, jus accrcscendi, 757-9, custody of title-deeds, 759 ; duties to creditors, 759-60 ; to legatees, 760 ; rules determining their respective shares, 761-3, 956. Joint legacy, 893-4, 915. .Joint legal transactions, 550-55. Joint obligations, 551 seq. Joint ownership, 337-40, 519, 553 ; how created, 339 ; how dissolved, 339-40 ; rights and duties, 338-9 ; remedy, 340; slave held in, 612-13. Joint tutors, 554, 706-8. Judex, 44-47, 18, 22, 23, 52 ; judieem addicere, 47 ; corruption of, 1066 ; domesticus, 190 ; judieem ferre, 47 ; judgment of, 1008-11 ; liability of, 1006-7 ; pedaneus, 73 ; procedure be- fore, 1008-11 — under legis actio, 1007, under formula, 1007-10 ; quaestionis, 58 ; tutelaris, 70. Judgment, 1008-11 ; execution of, 1029-44 ; grounds of nullity, 1011, 1O09 ; for property (enforcement of), 1033. Judgment debts— proceedings to enforce, 1033-44, to terminate, 1029-33. Debtor, made slave (XII. Tables), 18, 169. Judicata res, 60, 119. Judicatum solvi stipulatio, 1026, 983, 1024. Judices — Decemviri, 15, 26, 49-50 ; pedanei, 73-74, Judicial — officers, 34-51, 70-73 ; proceed- ings (places and times of), 51-53. Judicio, in, 22, 23, etc. (see Judicium). Judic-is postulatio, 978, 975, 37, 48-49. Judicium (faculty of judgment), 701. Judicium (trial, proceedings before a Judex), 22, 23, 48 note, 52, 974, 1006-11; absolutoria, 1009 ; capitalia, 1061 ; Cascellianum, ]0i'2 ; communi divi- dnndo, 337, 339-40, 524 ; contrarium, 1020-21; Dei, 690; extraordinaria, 23, 68, 1012-29, 1039 ; familise erciscundifi, 19, 259-60, 757, 883, 891, 892, its influence on English jaw, 114 ; fruc- tuarinm, 1002 ; imperio continentia, 42, 1010 ; legitima, 42, 1010, 1016 ; ordinaria (see Formula), 1039 ; publica, 74-75, 1061; secutorium, 1002; spon- sionum, 1003. See Actio. In judicio, 23, 117, 974, 1006-11. Judiciorum ordo (see Formula). Julian! Novellarum Epitome, 92. Jure, proceedings in, 23, 116, 973-80 (Legis actio), 980-97 (Formula) ; ce.=sio (see Cessio in jure) ; confessio, 1003 ; interrogatio, 1003 ; jusjurandum, 1005. Jureconsulti (see Jurisconsults). Juri aiieno subjectus, 193. Juridici conventus, 44. Juris — alieni, sui, 193-4, 117, 128 ; auotor, 55, 76 ; possessio, 392 ; praeoepta, 116 ; studiosus, 55, 79 ; vinculum, 453. Jurisconsults, the, 53-55, 60, 76-79. Jurisdictio — of prastor, 41 ; provincial judicial district, 44. Jurisperiti, Jurisprudentes. See Juris- consults. Jurisprudential 116 ; media, 859. INDEX. 1095 Jurists— Dutch, 104 ; Frencli, 102-3 ; German, 104-6 ; Greek, 93, 9f)-97, Jus— its meanings, 116-17 ; place in order of development of juridical ideas among the Romans, 125 ; abstinendi, 876-81 ; actionum, 124, 131-2 ; adorescendi, 757-9, 776-7, compared with substitu- tion, 789-90 ; ffidiflcandi, 418 ; ffidili- cium, 35, 43 ; ^Elianum, 54 ; agnationis, 685 ; altins non tollendi, altius toUendi, 418 ; aquK educendae, 416 ; annulorum aureorum, 670 ; arenffi fodiendae, 417 ; calcis coquendae, 417 ; civile, 24, 36-37, 117-19 ; civitatis, 30 ; cloacae mittendse, 419 ; cognationis, 685 ; commercii, 5, 30, 198, £99 ; commune, 771 ; conubii, 5, 22, 25, 30, 187, 197-9, 682 ; cretse eximendae, 417 ; deliberandi, 877 ; dicere, 971 ; edicendi, 120 ; Flavianum, 54 ; fluminis recipiendi, nctn recipiendi, 417 ; gentium, 35-36, 117-19,161, 171, 187-8 ; honorarium, 24, 35-37, 118, 120 ; intercessionis, 14 note, 27 ; itinnris, 415 ; lapidis eximendae, 417 ; Latii, 31, 33, 198 ; liberorum, 731, 856 ; luminum, 418 ; naturale, 35-36, 117-19, 161, 171 ; navigandi, 415 ; offerendi, 442; oneris ferendi, 417; Papirianum, 1 ; pascendi, 41 6 ; per- sonarum, or de personis, 124, 125-6, 129 ; possessionis, 392 ; postliminii, 33, 215-17, 714, 795, 835, activum, passivum, 216 ; potestatis (see Potestas) ; praediorum rusticorum, 414-17 seq., urbanorum, 414, 417-19 seq. ; prae- torium, 35, 118; privatum, 24, 117; projiciendi, 419 ; protegendi, 419 ; pro- vocationis, 13, 23, 26, SO; publicum, 24, 117; Quiritium, 118, 175-6, 229, 261, 262-5, 323, 379, 612, 672, 674, 699, 713, 889, 891 ; in re, 392 ; de rebus, 124, 126 ; publice respondendi, 76, 121 ; sacrum, 21, 24, 117 ; scriptum, nonscriptum, 119 ; sources of, 119-121 ; stillicidii recipiendi, non recipiendi, 418; suffragii, 5, 30 ; tigni immittendi, 417 ; tripertitum, 117 (Private Law), 769 (testamentum). See Jure, Juri, Juris. Jusjurandum in jure, 1005. See Oath. Justa causa — adquisitionis, 336, 290 ; manumissionis, 180-81 ; possessionis, 290, 272 ; traditionis, 282, 287. Justa: nuptiae, 226, 678-96. Justinian, 69-70 ; his Institutes, 91, 92, classification of, 124, defects of, as textbook, 139 ; his Law^n Gaul, 99, in Italy, 93 ; his Legislation, 90-93. Justinianani Novi, 80. Justitia, 116. Justus titulus, 270, 283. Kidnapping, 147, 1063, 1069. King, the, 8. Lakeo, 77. Lacus, 313. Land — burdens on, paid by emphyteuta, 428, by usufructuary, 402-3 ; con- troversies as to (trial of certain), 1013 ; injurious acts done to, 253 ; interfer- ence with owner's use of, 252 ; legacy of, 905-7 ; rights of usufructuary in, 399; tax, 403, 901. Landlord and tenant, 278, 507 seq. Landmarks — removing, 249-50, 332. Land-tax; 403, 901. Lapidis eximendae jus, 417. Latini coloni, 218 (caput), 32. Latini Juniani, 128, 173, 178, 198, 672-4, 675-6 ; origin and name, 871 ; could not marry Koman citizens, 688 ; in- testate succession to, 871-4 ; testamenti factio, 795-8 ; trusts, 824 ; could not be tutores, 717 ; abolition of, 874. Latinitas, 31, S3, 672-6. Latitare fraudationis causa, 970. liatium — majus, minus, 198. Laudemium, 429. Law — constitutional, 117 ; criminal, 24, 74-75, 1061-72; ecclesiastical, 22-24, 117 ; private, 117 ; public, 21, 24, 117 ; questions of, 1049 ; real property. 20 ; sacred, 22, 24, 117 ; schools, 79-80. Law of Citations, 69, 79. Leading questions, 1060. Legacy, 887-964 : classification, 126r7, 138-40 ; at first founded on will of testator, 887-8 ; subsequent limitations, 888. See Legatum (next page). Lecatum (tfnder Republic), 887-94 forms, 888-9, 897 ; rights o: legatee under each, 880-91 ; re striction as to object of bequest, 891-2 ; release, 892-3 ; joint- legacy, 893-4. FiDEIcoMMISSUM (under Empire), 894-6. Fusion of Legatum akd Fidei COMMISSUM (under Justinian) 897-952 : definition, 897-8 ; specific legacy, 898 seq. Rules common to all legacies, 898-904 ; rights of legatee, 898-904 ; duties of legatee, 904. Rules applying to particular legacies, 904-15 ; legacy of slaves, 905 ; of things — unquahfied owner- ship, 905-10, qualified ownership, 910-12, usufruct, etc., 612, 404; of rights in personam, 912-14 ; of hereditas, 914-15. Co-legatees,915. Donatio mortis causa, 915-17. Interpretation of legacies, 953-64 : expression clear and sufficient, but involving illegality, absurdity, or injustice, 953-6 ; expression clear, but incomplete, 956-7 ; expression obscure or amijiguous, 957-64. Making of legacies, 917-52. Simple 1096 INDEX. Legacy (continueri). legacy, 917-29 : how made, 917-18 ; who could be charged with pay- ment of, 918-20; creating words, 920-1 ; object of legacy and person of legatee must be certain, 921-3 ; error, 923-6 ; demonstratio, deter- minatio, 924 ; causa, 925-6 ; modus, 926, 934 ; oases where election of heir or legatee is necessary to vest the legacy (legacy — of choice, optionis, alternative, in general terms), 927-8 ; when it is uncer- tain whether legatee or testator died first, 92,8-9. Modality of legacies, 929-41 : place of performance, 929-30 ; time of performance, 930 ; postponed and conditional, 930-41 ; dies, 930-3, legatum pnram, 932, conditio, 932-41 ; Muciana cautio, 939 ; power of appointment, 941. Restrictions on legacy, 941-9 : what may not be bequeathed, 941-2 ; who may not be legatees, 942-4 ; as to unlawful objects, purposes, or conditions, 944-9 ; lucrativa causa, 944; captatoriae inatitutiones or scripturai, 947 ; restraints on marriage, 947-8; condititms against morality, 948 ; Kegula Catoniana, 94S-9. Remedies, 952. Revocation of legacies, 949-52 : ademptio, 949-50, translatio lega- torum, 950-1, events, 951-2. Divestitive fact, 952. Legatarius (legatee) — duties of heir to — before Justinian, 749-54, after in- ventory made, 756-7 ; lexFalcidia, 750-4 ; duties of joint-heirs to, 703 ; duties of fideicommissarius to, 817-22. Indignus, 915 ; par- tiarius, 820, 915. See Legacy. Legati Csesaris, or Augueti, 72. Legatum — classification, 126-7, 138-40 ; compare donatio mortis causa, 916-17 ; ademptum, 949-50 ; of aliment, 909 ; alternative, 928 ; of animals, 905 ; of annuity, 912-13 ; of books, 909 ; of chirograpba, 913 ; of clothes (vestis) 910; conditional, 930-41 ; conjunctive, disjunctive, 915 ; of sum due to a creditor, 914 ; of release of a debt to a debtor, 913-14 ; per damnationem, 889-93, 894-97, 1019 (costs), 1073 ; of dowry, 911-12 ; ereptitium, 915 ; of firewood (lignum), 910 ; of furniture (supellex), 908-9 ; left in general terms, 928 ; of gold and silver, 910 ; of in- heritance, 914-15 ; of jewellery (orna- menta), 910 ; sub jurisjurandi condi- tione, 947 ; of lands or houses, 905-8 ; of building material (materia), 910 ; Legatum [continued). optionis, 927 ; of peculium, 910-11 ; pcensE nomine, 944 ; per prseceptionem, 889-94, 897 ; of provisions (penus), 909 ; purum, 917, 932 ; of securities, 913 ; of silver vessels (vasa), 910 ; sinendi modo, 889-93, 894, 897 ; of slaves, 905 ; specific, 898 seq. ; translatum, 950-51 ; unconditional (purum), 917, 932 ; of usufruct, 912, 404 ; per vindioationem, 888-93, 897 ; of wheat,.wine, oil, 909 ; of women's toilette (mundus muliebris), 910 ; of wood, 910. Leges — caducarise, 789 ; censorise, 1044 ; Corneliae, 57 ; judioiarise, 44 ; Julia et Papia, 66. 67, 68, 81, 432 note, 677, 681, 688, 691,'731 ; 757-8, 790 (jus accres- cendi) ; 798 (incapacity of heirs) ; 807, 824-5 (ccelibes, orbi) ; 865 (bona vacantia) ; 867 (intestate succession of freedmen) ; 893, 898-9 (joint legacy) ; JuHk, 39, 64, 81, 975, 981 ; Liciniffi, 25, 27, 34, 62 ; Publiliffi, 26, 62 ; regiffi, 1 ; republican, 61-65 ; tribunicite, 26 ; under empire, 81-82 ; Valerise, 13, 23, 26, 61 ; Valeriffi-Horatiffi, 16, 25-26, 61. Legis actiones: 23, 36-38, 41-42, 52, 973-80 ; characteristics, 979-80 ; forms, 975 ; Gaius on, 974-5, 848 ; defects and disuse, 848, 975, 979-80, 1022 (no agents) ; allowed no second action on same matter, 1014-15, and no exceptio, 1015. Legitima portio, 780-86, 827. Legitimatio, 201-3 ; per subsequens mat- rimonium, 201-2, 114, 694; per obla- tionem curise, 202 ; per rescriptum principis, 203 ; by testament confirmed by Emperor, 203. Legltimum judicium, 42, 648, 1010, 1015. Lender. See Loan. Leonina Societas, 516. Lex, 60, 75, 119,120. Lex — Acilia (repetundse), 45, 46, 57, 58, 69, 63 ; Acilia Calpurnia, 57 (note 2). 64 ; iEbutia, 39, 49, 62, 975,981 ; ^liaSentia, 66, 81,178, 187, 198, 189, 200, 230, 667, 669, 672-3, 675, 699, 824, 834, 874; JSmilia, 28,61 ; Anastasiana, 213, 858 ; Annalis, or Villia, 62 ; Antonia, 51 (note 2), 64; Ap- puleia (agraria), 63 ; Appuleia (majestas), 67 (note 3), 63; Apuleia (sureties), 61, 577-9 ; Aquilia, 20, 62, 146, 150, 152, 242-5, 247, 330- 331, 335, 339, 342, 373, 564, 641, 1003, 1010, 1073-74— actio in factum, 244, utilis, 244, 247 ; Asinia Antistia, 81 ; Aternia Tar- peia, 61 ; Atilia, 62, 81, 714, 730 ; Atinia (res furtivee), 62, 272-3 ; INDEX. 1097 Lex {continued). Atinia (tribunes), 63 ; Aurelia, 45, 46, 59, 64. Baebia, 62. CEEciliii., 64 ; Ceelia, 63 ; Calpurnia (condictio), 37, 62, 464, 979-80 ; (repetundas), 57, 58, 63 ; Canuleia, 5, 25, • 61 ; Cassia (agraria), 61 ; Cassia (ballot), 59, 63 ; Cassia (senatorsbip), 63 ; Cicereia, 62, (Poiupeia?) 577,579; Ciiicia, 62, 319 ; Claudia, 82, 729-30 ; Clodia, 29, 64 ; Colonia2 Juliffi Geuetlvoe, e. Ursonensis, 64 ; commiesoria, 434, 438, 590 ; Cornelia de captivis, 64, de falsis, or testaraentaria, 64, 216, 79,5, 810-11,1062,1066,1070, 1072, de injm-iis, 148, 149, 155, 156, de majestate, 67 (note 3), de peculatu, 57, de sicariis et veneficis, 57, 64, 218, 1061-2, 1066, 1068-9, 1071, de sponsoribus, 64, 572, de vi, 57 (note 5), de XX Quaestoribus, 64, on praetor's edict, 35, 64, repetundarum, 57 (note 1), 64, sumptuary, 64 ; Cornelia Eaebia, 57 (note 2), 62 ; Cornelia Pulvia, 57 (note 2), 63 ; Creperia, 65, 982 ; curiata de imperio, 8, 76, 211, Vespasiani, 82. Dei, 88 ; Didia, 63 ; Duilia, 61 ; duodecim tabularum (see Twelve Tables). Fabia, 57 (note 2), 63 ; Fabia or Pavia (de plagiariis), 147, 1063, 1069-70 ; Falcidia, 64, 750-54, 760, 815 ; Fannia (banishment), 63 ; Fannia (sumptuary), 62 ; Fla- minia, 62 ; I'lavia, 64 ; FuBa Caninia, 66, 81, 182, 230, 750, 922 ; Furia (de sponsu), 63, 576-8, 1031 ; Furia (testamentaria), 62, 750-51, 1031. Gabinia, 63 ; Genucia, 62, 653 ; Gondobada, 89. Hortensia, 25, 26, 60, 62, 120 ; Hos- tilia, 979. Icilia (Airentine), 61 ; Icilia (tri- bunes), 61 ; imperfecta, 750. Julia, agraria, 64, caducaria, 81, de adulteriis, 81, 178, 299, 307, 595, 1061, 1067, 1069, 1071, de ambitu, 57 (note 2), 81, 1063, de annona, 64, 1063, 1067, de bon- crum cessione, 81, de civitate, 26, 32, 63, 198, de fenore, 64, de majestate, 57 (note 3), 1061, 1065- 7, de maritandis ordinibus, 66, 67, 68, 81, 670, 730, de peculatu, 57 (note 4), 10C2, 1067, 1071, de praedio dotali, 299, de residuis, 1063, 1067, de vi, 57 (notes 5, 7), 64, 251, 1062, 1066-7, 1069-71, de vicesima hereditatum, 81, judi- Lex [continued). ciaria, 45, 64, 81, 272, 274, 1010, 1039-40, municipalis, 64, repet- undarum, 57, 64, 1063, 1067, sumptuary, 64, 81. Julia et Papia Popptea, 66, 67, 68, 81, 432 note, 677, 681, 688, 091, 731 ; (jus accrescendi) 757-8, 790 ; (incapa- city of heirs) 798 ; (coalibes, orbi) 807, 824-5 ; (bona vacantia) 865 ; (intestate succession of freedmen) 867 ; (joint legacy) 893, 898, 899. JuUa et Titia, 81, 714, 730 ; Julia Papiria, 61, 65 ; Junia (de pere- grinis), 63 ; Juuia (repetundarum), 57, 63 ; Junia Norbana, 67, 81, 172, 173, 187, 667, 672-3, 675, 713, 824, 871, 873-4. Latina., 188 ; Licinia (ambitus), 57 (note 2), 64 ; Licinia (plebeian consuls), 62 ; Liciuia (sumptuary), 63 ; Licinia Mucia, 63 ; Livia, 45, 46, 63 ; Lutatia, 57 (note 5), 64. Maenia, 13 (notel), 62 ; Malacitana, 82; Mamilia Itoscia, etc., 82; Manila, 62 ; Marcia (agrarian), 63 ; Marcia (usury), 62, 1031 ; Maria, 57 (note 2), 63 ; Minicia, 65, 187. Nervae agraria, 82. Ogulnia, 25, 62 ; Ottinia (or Ovinia), 1010 ; Oppia, 62 ; Orohia, 62. Papia (b.anishinent), 64 ; Papia, or Papia et Poppaea (see Julia et Papia Poppaea, above) ; Papiria (Acerrani), 02 ; Papiria (ballot), 63 ; Papiria (ue sacramcniisj, 62 ; perfecta, 750, minus qu;ira per- feota, 750 ; Petronia, 82, 158 ; Pinaria, 61, 1007 ; Ptetoria, 62, 608, 734 ; Plautia, 57 (note 5), 63, 272, 274 ; Plautia Papiria, 26, 32, 45, 46, 63, 198; Fcetelia,33, 57 (note 2), 62, 638, 1035 ; Pompeia ambitus, 46, 57 (note 2), 64, civitas, 33, 63, judiciaria, 45, parricide, 57 (note 6), 1062, sureties, 677, 579 [? Cice- reia], tribunes, 64, vis, 46, 57 (notes, 5, 7), 64 ; Portia, 148 ; Publilia (de sponsu), 61. 570, 576, 1031 — (patrum auctorilas), 7, 13 (note 1), 26, 28, 62— (tribunes), 14, 61. Quinctia, 64. Eegia, 8, 76 ; Eemmia, 64, 1066 ; lihodia de jactu, 514-16 ; Romana Burgundionuni, 89 ; l^omana Visi- gothorum, 89 ; P^uliria, 64. Salpensa, 82 ; Scribonia, 64, 289, 419. Sempronia (agraria), 63 ; (caput), 63 ; (de fenore), 02 ; (judi- ciaria), 44, 56, 63 ; (provincifE con- sulares), 63. Serviiia, of Caepio, 45, 63, of Glaucia, 45, 57, 59, 63 ; logS INDEX. Lex {continued) . Silia (condiotio), 37, 62, 463, 979- 980 — (deponderibus), 62 ; Sulpioia, 26, 63. Theodosiana, 89 ; Thoria, 63 ; Tre- bonia, 61 ; Tullia, 57 (note 2), 64. Valeria (B.C. 300), 62 ; Vallia, 66, 1031 ; Varia, 57 (note 3) ; Vecti- bulici (?), 174 ; Vellsa, 81, 778 ; vicesimaria (Julia), 81 ; Villia, or Annaiis, 62 ; Visellia, 81, 674, 1071 ; Voconia, 62, 750-5), 811, 858. Zenoniana, 427. Libel, 20, 148-9, 1069-70. Libellus — appellatorius, 1047 ; conven- tionis, 972, 1073 ; repudii, 690. Liber — Authentioarum, 92 ; legum, 89. Liberalis causa, 184-6. Liberatio — ^legata, 913 ; nexi, 641 ; from obligation, 633. Liberi. See Child, filiusfamilias. Adop- tivi, 203, etc. ; naturales — (1) born to U3 (not adopted), 203, (2) of concubin- age, 201 ; sui ac legitimi, 201. Libertas — defined, 157 ; bequest of — con- ditional and unconditional, 176-7, to incerta persona, 922-3 ; cap of (pileus), 177 ; deprivation of, 1065 ; directa (or justa) and fideicommissaria compared, 175-6 ; modes of obtaining (see Manu- mission) ; given through master's for- feiture, 183 ; poenae nomine, 945, as reward, 183; personal, 147, 1069 (of- fences against) ; prescription, uaucapio, 185-6, 407, 428, malicious questioning of one's, 185 ; special remedies for libertas fideicommissaria, 186 ; suit for (liberalis causa, adsertor libertatis), 184-5. Libertinus — Libertus. Patron and freed- man, 666-76, 687, adsignatio, 870-71 ; libertinus defined, 667 ; libertus or- cinus, 176, 183 ; duties of libertus, 667-70, services to patron, 668-70 ; re- lation how created, 670 ; how dissolved, 670-1 ; remedies, 671-2. Intermar- riage, 687 ; intestate succession to freedmen (Roman citizens), 866-71 ; difficulty of arranging in tribes, 33 ; tutela, 711-12, 715 (must apply for tutor to children of patron), 718, 720, 721 (as tutor to patron's children), 727. See Latini Juniani, Dedititii. Cen- tenarii, 869. Libripens, 536, 537, 641, 767, 769, 80a. Licitatio fructus, 1002-3. Lignum, legacy of, 910. Limitation of time — for prosecuting Esuit, 1010. See Prescription. Lis crescens, 659, 1020, 1074-5. Lis et vindiciiB, 976-7, 982-3. See Litis. Litem suam facere, 988, 1006. Litigation — restraints on reckless, 1020 ; vexatious, 150. Litis — aestimatio, 336 ; ampliatio, 1007 ; contestatio — in Formulary procedure, 984-5, 992, 1005, 1007, 1009, in extra- ordinary procedure, 1014-16, 1028, in extinction of obligations, 633, 650, in joint obligations, 560, 562j in novation, 631 ; denuntiatio, 972 ; pactum de quota, 601. Littera — Bononiensis, or Vulgata, 101 ; Pisana, 101 ; litterse dimissorise, 1048. Liturae, 805. Livery -stable keeper's responsibility (fur- tum), 241. Loan, 466-71, 454 ; commercial, or mari- time, 474-5 ; gratuitous (commodatum), 475-9; mutuum, 472-4. Locatio conductio. See Hire. Locator — operarum, 511 seq.; operis, 511 sseq. Longa manu delivery, 282, 348. Love potions, 147, 1069. Lucid interval, 606. Lucrativa — causa, 914, 944 ; possessio usucapio, 27G ; usureceptio, 436, Lwmen, lumina, 418. Lunatics, 681, 732 seq. Lustrum, 28. Lytse, 80. Maeniana, 419. Magic, 1068. Magister — bonorumi vendendorum, 1038- 9 ; census, 773 ; navis, 241, 617-18. Magistratus — from whom appeal lies, 1044-6 ; created by Constantine, 74 ; domestious, 190 ; under Empire — new, 71, Republican, 70 ; provincial, 44, 72, 74 ; Republican, 11-12, 27 seq. Maine^. Sir H. S.— on coudictio, 37, 62, 979-80 ; on Narada, 122-3 ; on patria potestas, 189 ; on pignoris capio, 1044 ; on sanramentum, 37, 977 ; on deriva- tive theory of the stipulation, 536 seq. Majestaa, 57, note 3, 1061, 1065-7. Mala fide possessor, 237, 247-8, 268-9, 277, 279, 336,, 341-2, 398, 885-6. Malefici, 1068. Maleficium, 241 ; actio (obligatio) ex maleficio, 131, quasi ex maleficio, 241, 1073. Manoipatio, 20, 229, 210, 212, 260-2, 263- 4-5 ; in fiduciae contractus, 434 5, 433 ; in legacy — per damnationem, or sinendi modo, 890, 892 ; created rural servi- tudes, 419 ; in testamentum, 767-8 ; in usufruct, 404 ; of wife, 224, 228. Mancipium (slave), 160, 228. Mancipium (fictitious legal status), 227- 230; 20, 153, 192 ; 1034-6 : classification, 126-7-8, 130, 135, 140 ; derivation, 223. Mandata, imperial, 7Q. Mandatum, 482-90 : definition, 482 ; INDEX. 1099 Mandatum {continued). formed in five ways, 483-5 ; no set form of words necessary, 489 ; history of, 533 seq. ; remedies, 489-90 ; renun- ciation, revocation, 489 ; rights and duties, 485-9. As contract of suretyship — distin- guished from fidejussio, 566, from pactum de constituto, 567 ; how constituted, 570 ; how extin- guished, 575 ; remedies, 576. Co- sureties, 577 seq. Manilian stipulations, 498. Manuals, of Byzantine Emperors, 94-96. Manumission, 171-183, 223 : Board (Con- silium) of, ISO ; definition, 171 ; his- tory, 172-3 ; modes, 172-8, 229 (pro- cess) — formal or public (justa, legitima, publica, solemnis), 173-7, informal, 177- 178, distinctions between formal and in- formal, 173 ; in fraud of creditors, 178- 179, 177 ; legal grounds of, 180-81 ; by masters under 20, 180-81 ; of slaves under 30, 181-2 ; restraints on, 178-83. Inter amicos, 177, 180; censu, 174-5 ; per epistolam, 177 ; testainento, 175-7, 180, 182 ; per vindietam, 173-4, 180-81. Mamis, 222-7, 5, 153, 171, 678 seq. : de- finition, 222-3; classification, 126-7-8, 130, 135, 140 ; how acquired, 224-7 ; incapacitates from contracting, 605, 610 ; relation of dos to, 295-7 ; release, 227, 296 ; remedies, 227. Manus— injectio, 17, 18, 1030-31, 974-5 ; militaris, 335, 1033 ; manuum consertio, 976. Markets, offences as to, 1067. Marriage, 224-6, 678-96 : definition, 678, 680 ; as contract, 682 ; two principal eflPects — husband's powers over wife, 679, and over children, 679 ; freedom of divorce, 679 ; whose consent neces- sary, 680-1 ; delivery of wife to husband, 681-2; impediments to, 682-8; who cannot marry, 683 ; who can marry, but cannot intermarry, 683 ; modes — by coemptio in manum, 224-5, by con- farreatio, 225, by usus, 225, M'Lennan on, 226 ; under mistake as to status of one of the parties, 199-200 ; dissolu- tion of, 688-94. Master of ship— agency, 617-18' j liability (vicarious), 241. Materfamilias, 194, 222. Materia, legacy of, 910. Materna bona, 293-294, 444, 853. Matrimonium, 678-96 ; liberum, 601, 979 ; legitimatio per subsequens, 694. Matrona, 194, 222. Measures, offences as to, 10C7. Mediastinus, 165. Memory, a man's, condemned, 1061. Mensores, 1013. Mente captus (lunatic) — oura of, 732 seq.; Mente captus {continued). incapacity to contract, 606 ; marriage of child of, 681. Merces, 505, 509. Merchandise, shipped, loans on, 474-5. Merger— in mortgage, 447 ; of obligation, 629-30, 649 ; terminates prsedial servi- tude, 422, usufruct, 407. See Confusio, Consolidatio. Merx peculiaris, 604. Metallum, in opus metalli, 170. See Mines. Metus, 593-5. Jlilitia, 442, 674. Minerals, rights of usufructuary in, 392. Mines, the (as punishment), 170, 1061-5- 7-8-9, 1070-71. Minors— contracts of, 608 ; cura of, 732-5; relief from error of law, 660 ; could not be tutores, 717 ; could rescind a title acquired by usucapio, 271. Minus petitio, 995-7, 1018. Mi.ssio in possessionem, 133 note, 1037. Mistake, 199-200,268,270,581-4, 657-61, 894, 923-6, 1018. See Error. Modality : in contract — conditions, 586- 592, place, 584-5, time, 585-6 ; in legacy — conditional and postponed, 930-41, place, 929-30, time, 930 ; in trusts, 895. Modestinus, 78. Modus, in legacy, 926-7, 934. Money paid by mistake, 657-61, 894. Moneylenders. See Argentarii. Montanistae, 1056. Mora, 49-1, 637, 653-4, 894, 903. Morals, offences against, 1067. Morbus, 500. Mores (diuturni), 60, 119, 791, 1006 ; 431 note. Mortgage, 430-48, 127 : history of, 430-4 ; three stuges—fiducia, 431-4, pignus, 432-4, hypotheca, 433-4 — successive, but overlapping, 434. See Fiducial con- tractus, Piynus and Hypoiluca. Mosaicariim et Komanarum Legum Col- latio, 88. Mother and child — intestate succession of, 855-7. Moveables, 232 ; acquisition of, 255 seq. ; alienation, conveyance of, 258 seq. ; dereliction of, 257 ; mortgage, 430 seq. ; offences against ownership of, 232-49, 1070-71 ; posseFsion, 341 seq. Muciana cautio, 939. Muliercnlarius, 691. Mundus muliebris, legacy of, 910. Municipia, 32. Murder, 1069, 1062. Mutatio rei, effect of — ^in legacy, 951 ; in mortgage, 447 ; in personal servitude, 408 ; in prsedial servitude, 423. Mutuum, 472-5, 527 seq., 537. 1 100 INDEX. Naeada (treatise on Hindoo law), order of topics ill, 122. Naturalis {-ale) — sequitas, 43, 60, 119, 216 ; creditor, debitor (see Naturalis obligatio); jus, 35-36, 117-19, 161, 3 71 ; liber, 201 (ot concubinage), 203 (born to us ; not adopted) ; obligatio, 454, 353, 445, 602, 6U7, 658, 1018 ; pater, 209. Naufragiura, 328 (theft). Navicularii, 866. Navigandi jus (on another's lake), 415. Necessarii, 969 ; consilium of, 6, 224, 735. Necessitas, 453, 455. Negligence — contributory, 246-7 ; reme- diesfor, 146, 154. See Diligence, Culpa, liesponsibiiity. Negotiorum gestin, 661-6 : how consti- tuted, 663-6 ; duties of gestor, 662-3, responsibility for acts, 663, for omis- sions, 662 ; duties of principal, 663-4 ; gestor could not sue thief, 239 ; reme- dies, 666. Nexum, 459, 53, 525-8, 530, 534, 1035. Nexus, 260, 1035 ; nexi liberatio, 641. Niebuhr, 50, 84, 106. Nomen, Nomina (debts) — arcaria, 467 ; nominum cessio, 626-8 ; liquida, 443, 1018 ; transoriptitia, 468, 4B6-71. Nomen (name, accusation) — nominis de- latio, 58 ; receptio, 59 (criminal pro- ceedings). Nominatim, 774 (disherison). Nominatores, 716. Nomocanon, of John of Antioch, 92, 97. Non liquet, 59. Notary, 207, 442, 504, 772. Novatio, 468-9, 560, 626-32, 1015. Novellce — Julian's Epitome, 92, 99 ; Jus- tinian's, 92 ; after Justinian, 97 ; after Theodosius, 87, 89. Noxa, 166-8, 193, 196-7, 248. Noxa caput sequitur, 167-8, 248, 338. Noxffl deditio (see Noxalis). Noxalis— actio, 184, 166-7, 197, 331,248- 249 (pauperies), utilis, 248; deditio, 166- 167, disuse of, 197, compared with seiz- ing person of judgment debtor, 1034. Noxalis actio caput sequitur, 167, 338. Noxia, 166-7 ; compared with pauperies, 248. Nudus (-a, -um) — jus Quiritium, 265, 61^ ; pactio, pactum, 115, 548, 282 ; pollici- tatio, 457 ; proprietas, 384, 386, 394, 404 ; traditio, 283 ; usus, 409. Numa, laws of, 1. Nuncupatio, 768-9, 846. Nuntiatio operis novi, 134 note. Nuntius, in contract, 622. NuptiEE justjE, 226, 678-96. Oath — condition of (in legacy), 947 ; de- cisory, 1005 ; of defendant, 1019-20 ; Oath (continued). of expert (in handwriting), 1059 ; of traitor, 1066 ; of witness, 1060. Oblatio — curiiE, 202 ; offer to pay, 637. Obligatio — definition and explanation, 451-5 ; in Bracton, 115 ; civilis, 454 ; classification, 124-8, 131, 135 ; condi- tional, 586-92, 572 ; ex contractu (see Contract) ; damages (measure of), 650 seq. ; division of Gaius, 455, of Justi- nian, 455 ; extinction or discharge of, 632 seq. ; descent of, to heirs, 650 ; honoraria, 454 ; inutilis, 461-2-3, 681- 585-6, 591-2-9, 600, 605-6, 624 ; joint, 551 seq.; ex maleficio (see Delictum) ; naturalis, 454-5, 353, 445, 602, 607, 658, 1018 (set-off) ; novatio of, 626-32 ; operarum, 466 ; praetoria, 454 ; quasi ex contractu (see CJuasi-oontract) ; quasi ex maleficio (see Quasi-delict) ; reme- dies, 650 seq.; in solidum, 651 seq.; sources enumerated by Modestinus,455. Obscene language, 150. Obsequium — to parent, 676 ; to patron, 171, 667, 715. Occupatio, 255-7, 345-6. Offences, grijuped, 1064-72. Officiates, 1013, 1043. Onera realia, on things bequeathed, 901. Oneris ferendi jus, 417, 426 (actio). Operae — filiorumtamiliarum, 677 ; locatio conductio of, 611-14 ; ofiiciales — liber- torum libertatis causa impositse — oper- arum obligatio, 668 - 70, 466, 639 ; servoruni, 411. Ophitffi, 1056. Optionis legatum, 927. Optivus tutor, 729. Opusculum de Jure (A.ttaliatos), 96. Oraculum sacrum, 204. Oratio, 75. Orbi, 798, 824. See Lex Papia. Orcinus, 176, 183. Ordinarius, 165. Ordo judiciorum. See Formulse. Orichalcum, 229. Ornamenta, legacy of, 910. Ortolan, 17, 50, 66, 90, 91, 95, 99 ; on derivative theory of stipulation, 537 seq. Outlawry, 218, 187, 694, 795, 1061, 1066. Overboard, goods thrown, 614-16. Oves, 905. Ownership, 231-340, 19 : definition of do- minium, 231 ; abandonment of (dere- lictio), 267-8 ; alienation, power of, 259 (see Alienation, Conveyance) ; among aliens, 263-5 ; animals, duties of owners of (pauperies), 248-9 ; bonita- rian (in bonis), 263-5, 612, 674, 713 ; classification, 126, 130, 135, 140 ; con- veyance — ex jure civili (mancipiitio, in jure cessio, usucapio, adjudioatio, lega- tum), 255, 258-74, ex jure gentium INDEX. IIOI Ownership {continued). (accessid, traiUtio, praescriptio^ 255, 274-90, agency in, 322-5 ; creation of (occapatio),255-7; immoveables — rights of owners, 249-55 ; joint, 337-4(1, 519, 553,612-13 ; in legacy— qualified, 910- 912, unqualified, 905-10 ; limited, 394 Beq. ; moveables —rights of owner, 232- 249 ; oflFences against, 232-55, 1070-71 ; of persons, 140, 223 ; Prsetorian inno- vations, 263, 841 note (analogy of Inlieritanoe) ; Quiritarian, 265, 612, 674, 713 ; remedies, 335-47 ; restraints — persons that cannot be owners, 290- 295, things not susceptible of ownership, 309-18'; under XII. Tables, 19. Paotio, nuda, 548. Pactum, 457, 545 seq. : enforced by ac- tion, 549-50 ; adjeotum, 547 ; compared with contractus, 546, relation to crea- tion of contract, 547-9, to dissolution of contract, 546-7 ; relation to delicts, 546 ; donationis, 550 ; dotale, 601 ; de constituenda dote, 550 ; de cons^tituto, 566-76, 549 ; in continenti, 548 ; his- tory of, 546-9 ; ex intervallo, 548-50 ; nudum, 115 (in Braoton), 282, 548 ; in personam, 133 note, 643 ; depetendo, 547, de non petendo, 568, 575, 642-5, (Savigny on) 643-4 ; protimeseos, 503 ; de quota litis, 601 ; in rem, 133 note, 643 ; vestitum (in Bracton), 115. Pain, infliction of — when constitutes in- juria, 150-2 ; by paterfamilias, 190. Palatini, 293. Pandects, the (or Digestl, 90, 101, 123, 139 ; the Florentine, 101. Pannormia, 99. Papinian, 77-78. PapinianistHB, 80, Parapherna, 295. Parent and child. See Potestas Patria, Emancipatio (Emancipated Child), Parricidium, 57, 1062. Para virilis, 562. Partiarius legatarius, 820. Partition — of inheritance, 259-60, 761-3, action for (see Judicium familise ercis- cundee) ; form of legacy, 820. Partnership (societas), 516-24 : definition, 516 ; how dissolved, 522-5 ; how formed, 522 ; kinds, 517-20 ; Leonina societas, 516 ; dutiesof partners into' se, 520-21 ; rights and duties of partners in relation to third parties, 521 ; no partner could put another in his place, 522 ; no his- torical connection with nexum or stijiu- latio, 535. Pascendi jus, 416. Pasture, right of, 416. Pater — adoptivus, 209, etc.; fiduoiarius, 91S '719- iiatiiT.aH= 900 Mn Paterfamilias, 5, 18, 194, 259 : duties of, 196-7 ; rights of, 194-6. See Potestas. Paternity, 221-2. Patres, 10, 13 note 1, 26 ; patrum aucto- ritas, 13. Patria potestas. See Potestas. Patricians, the, 4, 24, 25. Palrioiatus, 220. Patron and dent, 4. Patronus, 4, 30, 130, 138, 140. Patron andtreedman, 666-76, 687 t ingratitude of freedman to patron, how punished, 170 ; intermarriage, 687 ; rio-hts of patron, 667-70, services of freedman, 668-70 — how created, 670, how extin- guished, 670-1 ; power of assigument of patronage rights to one of his chil- dren, 870-71 ; remedies, 671-2 ; intes- tate succession of patron to freedman, 866 74, of relatives of patron, 869, 870 ; tutela, 711-12. Paul, 78. Pauperies, 248-9, 331. Pecoris ad aquam appulsus,416, 425, Paculatus, 57, 1071, 1062, 1067. Peculiaris — creditor, 910 ; merx, 604. Peculium — adventitium, 293-4 ; castrense, 292-5, 605-6, 853, 855 (legacy of), 910-11 ; of free person in maucipio, 295; profectitium, 294; quasi -cas- trense, 293, 797, 850, 853 ; of slave, 33, 157, 290-1, (in contract) 603-4, 871, (legacy of) 905, 910-11 ; of wife, 295. Pecunia — compared with Familia ; con- stituta, 566-76 ; credita, 454, 672 ; non nuinerata, 470-71 ; pecunia residuce crimen, 57 (note 4) ; trajeotitia, 474, 653. Pecus, 905. Pecoris ad aquam appulsus, 416, 425. Pedanei judices, 73-74. Pegasiana quarta, 815, 820. Pegasians, 77. Penalty — in contract, 651-2 ; for injuria, 154-6 ; legacy left by way of, 944-5 ; for harbouring runaway slaves, 163 ; in stipulations, 651-2 ; for suit impro- perly brought, 1020-21, or improperly defended, 1019-20. Pensio, 507, 427, 429. Penus, 909. Per aversionem, 512. Per capita, 835, 857, 864-5. Per stirpes, 835, 864. Feroeptio fiuctuum, 398, 336. Perduellio, 57, 1005. Peregrini, 30, 34, 38, 51, 129, 130, 169, 186-8 ; decJiLitii, 675 ; is Bonorum possessio to be traced to the neeils of ? 846-8 ; view that Interdicts were first introd uced to protect proprietary rights of, 367 ; could not marry Roman citizens, 688 ; nomina transcriptitia, itfia ; potestas, 189 ; stipulatio, 461 ; II02 INDEX. Peregrini {continued). trusts, 824 ; succession of, 846-7 ; could not be tutores, 717 ; wills, 794-5. Peremptory — edictum, 1008 ; exceptio, 990-91, 1017. Performance of contract, 633 seq. ; impos- sibility of {when equivalent to actual performance), 637-8. Periculum rei, 285-6, 494-6, 654. Perjury, 1063, 1066. Permutatio, 541. Persecutio, 490, 1013. Persona — meanings of, 160 ; alieni, sui juris, 128, 193-4 ; jus de personis, 113, 124-6, 129 ; publica, 207 ; a slave was a, 160. Petere minus, plus, 995-7, 1018. Petitio — opposed to actio, and to inter- dictum, 1001, 1013 ; hereditatis, 834 ; bereditatis possessoria, 834. Minus petitio, plus petitio, 995-7, 1018. Petri Exceptiones Legum Komanarum, 100. Pictures, accession to, 279-80. Pietas, 658, 677, 726. Pignoris capio, 1044, 970, 974-5. Pignorum distractio, 437. Pignus and Hypotheca, 436 seq.,432-4, 341- 342, 382: creation of, 433-5— hypotheca, pignus, 433, tacita hypotheca, 443-5, hypothec, rural, urban, 444 ; in respect of what obligations could a hypothec be contracted ? 445 ; creditors — concur- rent and subsequent, 440 seq., duties to debtors, 439-40, priority, 440-42, exceptions to rule of priority, 442-3, rights of, 436-8 ; debtors — duties of, to creditors, 439-40, remain owners, 438-9, rights of, 438-40 ; definition and dis- tinction, 436 ; expenses on property hypothecated, 440 ; foreclosure, 437-8 ; history of, 527 seq.; no registration of mortgages, 442 ; release or extinction of hypothec, 445-7 ; remedies, 447 ; what rights may or may not be hypo- thecated, 445 ; sale of pledge, 437 ; tacita hypotheca, 443. Pileus, 177. Pistrinum, 674. Place — of judicial proceedings, 51, 52 ; of performance of contract, 5S4-5, of legacy, 929-30. Placita principura, 119, 120, Plagium, 1069. Plebeians, the (Plebs), 4, 5, 11, 12, 24, 25, 28, 119 ; oonoilium of, 26 note 1 ; decrees of, 26, 60, 75, 119-20 ; tribunes of, 13, 25, 70. Plebis concilium, 26 note 1. Plebisoita, 26, 60, 75, 119-20. Plus-petitio, 995-7, 1018. Pcena, 22. See Peniilty. Poens servus, 170, 162, 215. Pollioitatio, 457. Polygamy, 678. Pontiflfs, the, 10, 53. Populiscitum, 60. Popnlus Komanus, 4, 9. Portio — hereditaria, 814 ; legitima, 780-86. Possession, 341-93, 19 : accessio posses- Bionis, 266. Acquisition of, 343-9 : agency in, 352-4 ; physical fact (cm'pus) re- quisite in, 343-8, free dealing essential, 343, obstacles to free dealing, 343-4, occupation i mat- ter of degree, 344-5, acquisition of things not before possessed, 345-6, transfer of pos.>iession (tra- ditio), 346-8, delivery longa manu, 348 ; intention (animus) requisite in, 348-9, delivery brevi manu, 349 ; restraints on — as to persons, 349-50, as to things, 349. Adverse, 362 seq. ; agency, 378 — in acquisition of, 352-4, in loss of, 354-7 ; ambiguity of possessio, 379 ; animus — domini, 375-88, tenendi, 378, 341, 348-9. Animus domini, 375-88 : originally necessary for interdict protection, 375-7 ; extension of interdicts to personal and prsedial servitudes, 376 ; further extension (to de- positees, borrowers, tenants) con- venient, but not necessary, 376-7 ; errors of German writers, 377. Possession without animus domini, 379 seq.: Cases where possession (name and thing) is admitted in absence of animus domini, 380-4 — precarium, 380-2, pignus, 382, emphyteusis, superficies, se- questratio, 383 ; Cases where possession without animus domini is denied in name but admitted in fact — Quas^-posses5^o, 384 seq. — personal servitudes (ususfructus), 384-fi, affirmative prsedial servi- tudes, 386-8. Basis, true philosophical, 378 ; nemo sibi ipse causam possessionis mutare potest, 362 ; Bonorum possessio (q. v.); civilis, 342; clandestina, 351, 371 ; corporis, 392 ; definition, 341 ; delivery brevi manu, 349, longa manu, 348 ; derivative (Savigny), 391-2 ; how far adopted in English law, 113 ; bona, mala fide, 237, 247-8, 268-9, 277, 279, 336, 341-2, 398, 885-6 ; n, fact or a right ? 379 ; history of, 362-388 ; ignoranti non a,dquiritur, 361 ; of incerta pars, 361 ; injusta, 360, 365, 371, 375, 381. Interdicts : animus domini, 375-88 INDEX. 1 103 Possession {continued). (above) ; assisted adverse posses- sors, 363-4, but were introduced, not for such possessors, but for persons holding innocently against all the world, but having no title by the civil law, 364 ; possessio simply, or possidere, protected by, 342, possessio naturalis not pro- tected by, 342 ; Uti possidetis and Utrubi, 366-74 (see under Interdictum). Juris, 392 ; jus possessionis, 392 ; justa, 360, 365, 371, 375, 381 ; longi temporis (prescription), 288- 290 ; loss of, 350-52, agency in loss of, 354-7 ; maxims (certain general) explained, 359-62 ; mere (attitude of law to), 363 ; missio in pos- sessionem (bankruptcy), 1037-8 ; naturalis, 342, not protected by interdicts, 342 ; distinguished from ownership, 359, 362-3, why ques- tions of, took precedence of ques- tions of ownership, 364-5 ; pro herede, 269 ; pro possessore, 885 not to be confused with proprietas. 359-60 ; quasi - possessio, 384-8 : ex jure Quiritium, 1038 ; remedies, 357-9 ; rights and remedies of pos sessor, 342 ; a right or a fact 379 ; of same thing in solidum, 361-2 ; title no defence, 375 transfer of (traditio), 346-8 ; vacua, 368, 900 ; vitiaof, vitiosa, 360, 365, 371, 375, 381, 390 ; what cannot be acquired, 349-50 ; who cannot acquire, 349. Possessor— See Possession ; bona, mala fide, 237, 247-8, 268-9, 277, 279, 336, 341-2, 398, 885-6 ; rights and remedies of, 342. Possessoria hereditatis petitio, 843. Possessorium constitutum, 352. Postliminium, 33, 215-17, 714, 795, 835 ; activum, passivum, 216. Postulatio — actionis, 983 ; in criminal court, 58 ; judicis, 978, 975, 37, 48-49. Postumi— alieni, 79S-9, 895, 923 ; Aquili- ani, 777 ; disherison of, 777 ; extranei, 798 ; intestate succession of, 833-4 ; Vellaeani, 778. Potestas, dominica, 171, 184. See Slavery. Potestas patria, 188-223, 5, 18, 153, 679 : how acquired, 197-211, over one's own issue, 197-203, over another's issue (Ar- rogation. Adoption), 203-7 ; acquisition through, 323-4, 127, 294, 605-6, 610-11; characteristics, nature of, 189-193; clas- sification of, 126-30, 135, 140 ; effects on contract, 60.0-6, 610-11 ; definition, 188 ; duties of paterfamilias, 196-7 ; determined the legal constitution of Potestas patria (continued). Rcnnan family, 193 ; divorce, 689 ; forfeiture of, 220 ; inheritance, 774-9, 833-5 ; loans to persons under, 82, 473-4, 660 ; Sir H. S. Maine on, 189 ; marriage, 678 seq. ; not (as the Roman jurists thi>ught) peculiar to Rome, 189 ; property, 292-4, 323-4, 127 ; powers of father, 188-193 ; release from, 212-21 ; remedies, 221-2 ; rights of pater- familias, 194-6 ; tutela, 708-10. Pothier, 103, 104, 123. Power of appointment, 823, 941. Prseceptionem, legacy per, 889-94, 897. Prsede litis et vindiciarum, stipulation pro, 982-3 ; praedes litis et vindiciarum, 976-7, 982. Praediatura, 270. Praedium — 414 note ; dominans, 412 ; dotale, 299 ; Italica, 287 (delivery) ; provinciale, 261, 272 ; rusticum, 414, 441, 507 ; serviens, 412 ; stipendiaria, tributaria, 287 (delivery) ; iirbana, 414, 507 ; vioina, 413. See Servitudes, predial. Praefecturaa, 32; Praetorian (Constantine), 74. Praefectus — juri dicundo, 32 ; morum, 29, 71 ; Prffitorio, 72 ; urbi, 69, 71, 72 ; vigilum, 674. PrEejndicium, 1004. Praelegatum, 787, 813-15, 891. PriEscriptio. See Prescription. Praescriptiones, 992. Praeses provinci^, 44, 67, 72 ; extortion by, 1063 ; restriction on marriage of, 687, 695, 882 ; refusal to give place to successor, 1067; jurisdiction over trusts, 887, 896. Praestare, 453. Prajsumptiones — facti, 1058 ; juris, 1058-9 ; juris et de jure, 1058. Praeteritio of sui heredes, etc., 776-7. Praetexta, 150. Praetor, 34-43, 70, and passim : his edict, 34-35, 123, and passim (see Edict of Praetor) ; fideicommissarius, 66, 67, 70, 811, 887, 896, 1013 ; influence, 40-41 ; innovations in law of inheritance, 841-2 note, 840-63, of <]wnership, 841-2 note ; imperium and jurisdictio, 41-42 ; peregrinus, 31, 34, 38, 70, 368, 980 ; tutelaris, 70 ; urbanus, 34, 70. Praetores (consules), 11. Praevaricatio, 1067. Preearium, 411-12, 341-2, 361, 3S0-82. Precious stones, 256 (occupatio). Prescription — in actions, 648-9; in Bracton, 114 ; creates emphyteusis, 428 ; of liberty, 185 ; of marriage (usus), 225 ; of mortgage, 447 ; as extinction of obligation, 645-9 ; in regard to property, 288-90, 645-6 ; II04 INDEX. Proscription {continued). creates servitudes, 419 ; in suretyship, 576 ; as to wills, 807, 884. Present ( = in same province), 290. President of Province, 44, 67, 72, 687, 695. 882, 887, 896. Presumptions — of fact and law, 1058 ; death of heir and legatee, 928-9. Pretium — affectionis, 331 ; verum rei, 651. Priests, colleges or guilds of, 10, Primogeniture, 839. Principal and agent. See Agency. Prinoipaliter (Gaius 4, 138), 41. Priority among creditors, 748, 755-6. Pro donato, dute, emptore, legato, solnto, '283. Pro herede gerendo, 877-9. Pro judicato, 1031. Pro religiose, 316. Probatio anniculi, 198, 673. Probrosffi feiiiinse, 802. Procedure, 967-1060. Extraordinary, 1012-29 ; transition from ordo judi- ciorum, 1012-13 ; outline of proceed- ings, 1013-14; litis contestatio, 1014-16; pleading and defences (exceptiones), 1016-1017 ; set-(.ff, 1017-18 ; variance, 1018-19. Formulary (see Eormulffi), 980-1011. Legis actiones (q.v.), 967-80. Prochiron, 94 ; Anctum, 96. Procinctus, 766 ; testamentum in pro- cinctu factum, 766-7. Proconsules, 30, 44, 72, 74. Proculians, 77. See Sabinians. Procurator, 1022-8 : appointment of, 1027,1022-3; who conld not be, 1027-8 ; change or dismissal of, 1028 ; compared with cOLjnitor, 1022-3 ; duties of de- fendant's, 1026-7, of plaintiff's, 1025 ; how introdnced by formulary pro- cedure, 1022 ; gave security, 1023-4. CEesaris, 73 ; in suam rem, 576, 628, 760, 1032. Prodigi — incapacity to contract, 609 ; cura of, 732 seq. ; deci.?ory oath, 1006 ; testamenti factio, 797, 803. Prohibitive impediments, 683. Projioiendi jus, 419. Proletarius, 968-9, 9, 17. Prolytffi, 80. Promise — to give, 550 ; illegal, 600-1 ; impossible, 598-600 ; of marriage (breach of), 525 ; in stipulation, 460-62 ; voluntary, 318-19. Promiser. See Reus. Promptuarium, of Harmenopulos, 97. Proof — burden of, 1057-8, in condictio indebiti, 661 ; in utilis actio tutelse directa, 725 ; dtfinition, 1050. See Evidence, Testimony. Property— classification, 135 ; confisca- tion of, 1065, 1068-9 ; damage to (damnum injuria), 242 ; executfou Property [continued), against, 1042-4 ; family, see Familia ; private (origin of), 258 ; real (under XII. Tables), 20 ; symbol of (hasta), 259. See Ownership. Prophets, punished, 1068. Proprsetor, 30, 34. Proprietas — contrasted with possessio, 359 ; nuda, 384 note, 386, 394, 404. Prorogatitmis clausula, 930. Prosecution, malicious, 1065, Prospectus, 418. Protectum, 419. Protegendi jus, 419. Protimeseos (pactum), 503. Provinces, 30, 72, 74. Provincial — finance minister,73 ; governor, 44, 67, 72, 687, 695, 882, 887, 896 ; magistrates, 44, 72-74 ; solum, 272. Provisions, legacy of, 909. Provocatio, 13, 23, 26, 30, 1045. Prudentium Responsa, 60, 76, 119-21, Psalterium, 148, Puberlas, 722-3 ; plena (full), 211 ; Pubertati proximus, 701. Publica judicia, 74-75. Publicani, 45, 1073. Publicatio, 523, 1039. Punishments for offences, 1064-72 : bodily harm, 1068-9 ; capital, non-capital, 1064-5 ; chastity, 1070 ; contract, 1071 ; corporal, 1065, 1067 ; decency, 1067-8 ; duties, f r violation of abso- lute, 1065-8, relative, 1068-72 ; ex- chequer, 1067 ; government, stability or prerogatives of, 1066 ; inheritance, 1072; justice, administration of, 1066-7 ; liberty, persona], 1069 ; markets, measures, 1067 ; morals, 1067-8 ; ownership, 1070-71, owners of slaves, 1070, as to things not subject to owner- ship, 1071 ; against public force, 1066, by public servants. 1067, against public tranquillity, 1066 ; religion, 1068 ; security, external, 1065 ; status, 1071-2; treason, 1065-6 ; weights, 106'? ; wills, 1072 ; witchcraft, 1068, See Otfences, Pupillares usuree, 723-4. Pupillus — in contract (incapacity of), 607 ; co-tutor's authority, 706 ; sometimes receives curator, 732-3 ; legal incapa- cities of, 699-701. how far removed by tutor, 701-2 ; decisory oath, 1006 ; promise without tutor's sanction, 607 ; property, administration by tutor, 702, by contutor, 706-8 ; rem salvam fore pupillo, 716. See Tutor, Contutor, Impubes. Qu^STiOKES, 44, 56 ; perpetuse, 34, 44, 56-60, 74, 1045. Quffistores, 12, 25 ; criminal judges, 56 ; parricidii, 12, 56 ; provincial, 44, 73 (imperial). INDEX. IIO5 Quaestus, 517. Quanti actoris interest, 424, 651. Quanti ea res est, 651. Quantum faoere potest, 307, 524, 651, 668. Quantum looupletior factua est, in, 700. Quarta— Antonina(orDiviPii), 207, 781 ; Falcidia, 750-2, 760, 819-20, 882-3 ; Pegasiana, 815, 820 ; Trebelliana, 820-21. Quasi-contract, 138, 127, 131, 655-66, 456 ; -delict, 131, 150, 153 ; -possessio, 384 seq., 392 ; -relationship (in refer- ence to prohibition of marriage), 687 ; -usufruct, 397-8. Querela inoffioiosi testamenti, 780-82, 786, 883-4. Quinquagiiita Decisiones, 90. Quiritarian ownership. See Jus Quiri- tium. Quota litis, pactum de, 601. Rape, 183, 1070. Eapina, 166. See Bona vi rapta. Kate — sewers, 901 (legacy) ; water, 901 (legacy). Katis vel navis expugnata, 328 (theft). Reasonable time, 585-6. Receipts, 428. Receptitia actio, 566-7. Receptio nominis, 59. Recognisances (vadimonia), 985, 972. Rectors, 74. Reouperatores, 38, 44, 51, 981, 985, 998, 1007, 1010. Redemptor operis, 511. Redhibitio, 505, 498 seq. Reditus, 507, 427, 912. Regal period, institutions of the, 1. Regula Catoniana, 948. Relatio, 1048. Relationship — names and degrees of, 830-32 ; quasi-, 687. Release — of obligation, 638-44 (formal), 642-5 (non-formal). Relegatio, 218-19, 1065, 1061, 1067-72. Relevance — legal and logical, 1052-3. Religion, Roman, 10 ; punishments for offences against, 1068. Relocatio, 514. Rem salvam fore pupillo, 716. Remancipatio, 227. Remissio — pignoris, " 446 ; of rent, 509; ,of servitude, 422. Rent — of emphyteusis, 427-8 ; of farm (reditus), 509, 427, 912 ; ground (sola- rium), 403, 901 (legacy) ; remission of, 609 ; of state lands (vectigal), 901 (legacy) ; of superficies, 429. Repairs— of hired thing (house, etc.), 508-9 ; interdict for, in case of servi- tudes, '424-5 ; of ship, 515 ; by usuary, 410 • by usufructuary, 402. Repetundse, 45, 57 note 1, 1071,1062,1067. Replicatio, 991-2. Reprsesentatio, 914. Republican institutions, early, 11. Eepudium, 689. Reputation, offences against, 148-9, 1069- 1070. See Existimatio. Res — law concerning, 113, 124, 126 (see Ownership), ^stimatse, 298 ; com- munes, 126, 309-10 ; corporales, 126, 287, 913 ; divini juris, 315-18, 349, 126 ; fungibiles, 286, 930 ; furtiva, 325, 273 ; hereditarias, 757 ; im- mobiles, 249 seq., 262, 274 (vi possessse), 332-3 (protection of rights to) ; incorporales, 287, 913 ; judicata, 60, 119, 1015 ; in judicium deducta, 1015 ; legacy of, 913, 930 ; litigiosa, 1016 ; mancipi, nee niancipi, 260-62, 287 (delivery), 890 ; mobiles, 232 seq., 325 ; se moventes, 325, 331 ; nuUius, 256-7 ; in nostro patrimonio, extra nostrum patrimonium (J. 2, 1, pr.) ; persons regarded as, 127 ; publicse, 310-14, 349, 126 ; religiosee, 315-17, 256 ; sacris, 315, 256 ; aanctse, 317-18, 256 ; siiigulEe, 314 ; singulorum, 314 ; universitatis, 314-15, 156 ; vi possessae, 274. Res perit domino, 285. Kescripta, imperial, 76, 198, 203. Respondere, of jurisconsult, 54. Responsa prudentium, 53-55, 60, 76-79, 119-21. Responsibility — in agency (negotiorum gestio), 662-3 ; for bodily harm, 146 ; in commodatum, 477 ; in deposit, 480 ; of heir, as to trusts, 816 ; in hire, 508-13 ; in mandate, 487 ; of person charged with legacy, 90S ; in sale, 494-5, 502 ; of tutor, 704, 707, 722, 724 ; vicarious, for wrongs, 153-4. Eestipulatio, 975, 999, 1002, 1020-21. Restitutio— of dos, 304-8, 547 ; of in- heritance under a fideicommissum, 812 ; in integrum, 41, 593, 608, 743, 991, 1028 ; natalium, 671 ; ob causam, ob conditionem, ob indebitum, ob rem, ob transactionem, 656 ; trusts inter vivos (quasi-contract), 656. Reus, 454 ; promittendi or promittendo, 454, 460, duo, 555 ; stipulandi or stipu- lando, 454, 460, duo, 655. Reverehtia — to parent, 676 ; to patron, 667. Rex, 8 ; sacrorum, or sacrificulus, 12, 52, 225. Rights and duties, the basis of the classi- fication in this work, 132 ; divisions of 132-3. Rights — in personam, 133, classes, 137-8, exposition in detail, 451 seq. ; in rem, 133, 137-8, classes, 134-5, exposition in detail, 145-448. iio6 INDEX. Eingg, right to wear gold, 670-1. Kipa (river-bank), 313. Kivers, 313-14, 310 : bank defined, 313, use of bank, 310 ; right of fishing in, 310 ; navigation of, 313. Rivus (stream), 313. Roads — private, 311 ; puVjlio, 311-13. Robbery, 241, 330, 1070. Roman — commonwealth (beginnings of), 3 ; history (early), 1 ; Law — in Eng- land, 107-116, in France, 103, in Gaul, 99, in Germany, 104-6, in Holland. 104, in Italy, 98, in Scotland, 107, in Spain, 106-7— schools of, 97-80, sources of, 60, 75, 119-21 ; population, (early divisions of), 4. Riistici, wills of, 772. Ruta csesa, 494, 502. Sabinians and Proculians, 77 : on alienR andnominatranpcriptitia, 469 ; animals as res mancipi, 261 ; conditions (per- formance of), 588 ; damages under lex Aquilia, 330-31 ; disherison of sons, 776 ; error of law, 660 ; fideicommissa, 894 ; formula arbitraria, 999 ; heredes necessarii, 875 ; in jure cessio of in- heritance by lieres suus et necessarius, 881-2 ; absolutoriajudicia, 1009 ; legacy — with impossible conditions, 591, per prEeceptionem, 892, 894, per vindica- tioneui, 889-90, placs of (in will), 894 ; can slave of sole heir be legatee ? 943 ; should a son surrendered ex causa noxali be mancipaled thrice, or only once? 196-7; njandate (performance of), 486 ; age of puberty, 722 ; sale — ought the bona fides necessary for usucapio exist at sale or at delivery ? 268-9, barter and sale, 491, price to be fixed by third p.arty, 491 ; slave (see below, under Stipulation), — If another's slave or son wrongs me and then comes under my potestas, does the action fall through, or is it only in abeyance? 119; solutio, 633; specifi- catio, 280 ; sponsor, 629-30 ; stipula- tion — for self and another (in whose power we are not), €23-4, of slave liereditatis j leentis, 614, of slave held in joint ownership, by order of one master only, 612 ; usucapio, 268-9 ; usus, 410. Sacra^family (privata), 205, 225,' 746-7 ; gentilitia, 839 ; saororum detestatio, 766. Sacramentum, 23, 37, 49 ; 364-8, 374 ; 975-8, 967, 981-4, 1000-1, 1007, 1014, 1019. Sacrifice — of child, 1069 ; to injure a neighbour, 1068. Sacrilegium, 57 note 4, 1071. Sacrum oraculum, 204. Sale {emptio-venditio), 490-505; colourable Sale {continued). (imaginaria), 492 ; definition, 490 ; diflfers from barter, 491, from exchange, 541, from letting on hire, 506 ; duties and rights, 492-504, obligation to de- liver, 492-4, delivery, 284-5, to accept delivery, 603, expenses prior to delivery, 603, prior responsibility, 494-5, by agreement, 502 ; eviction, 493, 496-8, 602 ; faults in thing sold — edict of Curule ^dile, 498-502 ; fictitious (see Mancipatio); contract how formed, 604; history of, 634-5 ; possessory interdicts, bearing of law of sale on introduction of, 368-9 ; of mortgage — by creditor, 437, by debtor, 438 ; pre-emption, 503 ; price, 491-2 ; produce and accessions, 286 ; remedies, 504-5 ; risk (periculum rei), 286-6 ; of debtor's universal suc- cession, 10-36-42 ; warranty, 601 Saltuarius, 404. Salvius Julianus, 35, 75, 77, 83. Samaritse, 1056. Sanctio, 317-18. Sanction, the social, 431 note. Sanguinolenti, 192. Satisdatio — required from agents, 1023-6 ; from child (impubes), 886 ; for costs, 1047 ; fromcurators, 734, 1023-5 ; from .defendant acting suo nomine, 1024, .acting alieno nomine, 1024 ; for resti- tution of dos, 574 ; judicatum solvi, 1023-6 ; from possessor, 1023-6 ; from procurator, 1024 ; de rato, 1023, 1025 ; from tutores, 715-6, 724, 1023-5. Savigny, 100-2, 104-8 ; on agency, 661 ; formulae reconstructed, 1003-4 ; on relief in non-essential error, 582-4 ; on pactum de non petendo, 643-4 ; on place of performance of contract, 584 ; on poissession (criticism of), 388-93 ; on , stipulation, 537 seq. Scholia — on ]3asilica, 96, antiqua, 96. Schools of law, 79-80. Soribentes, the, 102. Scribere, of jurisconsults, 55, Scriniarii, 293. Scriptur£e captatoriae, 947. Sea-shore — extent, 310; public use, 30910. Secretaria, 52. Scctio bonorum, 1036. Seetores bonorum, 1036. Security. See Satisdatio, Cautio. Secutorium judicium, 1002. Seditious gathering, 21, 1066. Seduction, 149-150. Self-defence — how far force was permitted in, 151. Semestria, 71, 720. Senate, the, 7, 12 ; removal from, 1065. Senators, restriction on marriage of, 688. Senatus auctoritas, 65, 77. Senatus-oonsultum, 13, 60, 65, 75, 81- INDEX. I 107 Senatus-consultnm {continued). 83, 119-20 ; Atininnum [read, for " Sabinianura "], S3, 858 ; Apronianmn, 83, 799 ; Calvitianum or Calvisianum, 82 ; Clautlianum (cohabitation), 82, 169, 187, 188, 215, 740 ; (jus honorum) 82; (iiiairiage)82, 798 ; jjasuiiiianum, 83, 186 ; de a3dificiis non diruendis, 82 ; de aqusductibus, 81 ; de eoUegiis, 81 ; de Cyzicenis, 83 ; de ludis ssecularibus, 81, 82 ; de niense Augusto, 81 ; de mundinis saltus Begiiensis, 83 ; auotore Hadriano, 83 ; Juncianum, 83, 186 ; Juventianum, 83 ; Largiaimm, 82, 872-4 ; Libouiamim, 81 ; Macedoni- anum, 82, 473-4, 660 ; temp. Marci et Commodi, 687-8 ; Maximo etTuberone coss. factum (wife of Flamen Dialis)^ 81 ; Neronianum, 82, 890-92 ; Orphi- tianvim, 83, 857 ; Pegasiaiivim, 82, 815, 819-21, 812, 823-4 ; Pegaso et Pusione coss. factum (favourable to certain Latini), 82, 673 ; Perniciauum or Fer- sicianuiii, 82, 798 ; Plancianum (fidei- commissa), 83 ; (libsri) 83, 222 ; Eubri- aiium, 83, 186 ; lUifo et Scapula coss. factum (temp. Claudii), 870-71 ; Sabini- anum, 83, 853 [read Afinianuiiij ; Sil- anianum, 81, 883 ; TertnUianum, 83, 674, 855-7, 887 ; Tvebellianum, 82, 818-19, 821, 751 ; Turpillianuui, 82, 1067; Velleianum, 82, 572-4, 718; Vitrasianum, 83, 186. Sententia nullius momenti, 1011, 1030. Separatio — ^bonorum, 748-9 ; fructuum, 398. Sepulcri -piolati — actio, 147, 317 ; crimenj 1071. Sequester, Sequestratio, 383. Serfdom, 162-3. Series — of Edict, of Papinian, of Sabinus, 91. Servian constitution, the, 9. Servitudes, 394-426, 126-7, 247, 800. Persona], 394-412 ; definite, inde6nite, 395-6 ; explanation, 394-6 ; in con- nection with Possession, 384-6. See Ususfructus, Usus, Habitatio, Operas servorum, Preoarium. Prsedial, 412- 426 : actions, 425-6 ; affirmative, 414, 420-23, interdicts for, 423-5, in con- nection with Possession, 386-8 ; ia Bracton, 114 ; characteristics, general, 413-14 ; creation of, 419-20, restrictions on 421-2 — nuUi res sua servit, 421; servitus servitutis non esse pote&t, 421 ; conditional, 420 ; continuous, discon- tinuoTis, 423 ; definition, 412 ; indi- visible, 413; negative, positive, 414, 420-23 ; remedies, 423-6 ; reservation of 420 ; rural, 414-17 ; termination of, 422-3 ; urban, 414, 417-19. Servus. See Slave. Set-off, 993-5, 1017-18. Shipwreck, loss through, 514-16. Si quid minus fovet, 786. Sicarii, 1001-2, 1066, 1068-71. Silva cffidua, 399, 417. Sin, contrasted with Crime and Civil Wrong, 1063. Sine — causa, 597 ; re (bonorum possessio), 845-6, 776. Slander, 148-9. Slave (servus), Slavery (servitus), 157- 188, 5, 33, etc. : abandonment of, for delicts, 166-8, when sick, 183 ; as ad- stipulator, 605 ; as agent in acquisi- tion, 323-4 ; alienation of, 159 ; Aris- totle on, 161,; how one became a, 168-71 ; why called servus, and man- ■cipium, 160 ; claimed in causa liberalis, 184-6 ; accepting Christianity, set free, 183 ; classification, 127-8, 130, 135, 140 ; cohabitation of, with free woman, 169-70, 740, 801 ; consorHum servile, 862 ; contubernium, 678, 686 ; in con- tract — incapacity to contract, 602-4, beneficial and technical ownership separated, 612, in joint ownership, 612-13, bona jide possessed, or held in usufruct or use, 613, hereditatis jacen- tis, 614, 802, onuld better, not worsen, his master's condition, 614, disabilities of his position, how removed, 614-17 ; as agent in conveyance, 323 ; corrupt- ing a, 164, 183; taken as debtor, 1034-5 ; definition, 157 ; delicts of, 166-8 ; dere- lictio in case of, 258 ; exposure of in- fant, 183 ; free, how made, 171-183 ; fugitivus, 500 ; hereditatis iacentis, 614, 802 ; increase in 'numbers, 33 ; inex- ■cussus, 911 ; ingratitude of (how punished), 170 ; injuria to, 164-6 ; killed, damages for, 1073-4 ; as legacy, 905, could not be legatee (except for aliment), 943 ; manuinission of, 171- 183, 223 ; marriage (contubernium), 678, 686 ; master and slave, 157-160— no action between, 159-60, complaints of slave against master, 183, limitation of master's ownership, 157-60, master's power over slave compared with his power over son, 189, master's rights as against third parties, 163-5, 184-6, 1070, master's responsibility for wrongs done by slave, 166-8, 184-6 ; merx peculi- aris, 604 ; ordinarius, 905 ; origin of slavery, 160-62 ; peculium, 33, 157, 290-91, 603-4, 871, 906, 910-11 (legacy of) ; slave was a person, 160 ; servus pcense, 170, 162, 215 ; as agent in pos- session, 353-4, 356-7 ; made unwilling prostitute, 183 ; publicus, 716 ; populi Eomani, 675 ; runaway (harbouring a), 163, 183-4 ; rusticus, 905 ; legal se- curity of, 194-5 ; stipulations of, 610- 617 ; intestate succession, 862 ; teata- menti factio, 794-5, 797, 800-3; as iio8 INDEX. Slave {continued). trader, C04 ; ti-eaf.mont, progressive humanity in, 157-9 ; trusts, 824 ; could not be tutor, 716-17 ; urbanus, 905 ; usufruct, 613, 400-1 ; verna, 168-9 ; vicarius, 905, 911 ; woman made, 740. Societas — company, 314; partnership (q. v.), 516 seq. — leonina, 516, negotia- tionis alicujus, 518, unius rei vel cer- tarum rerum, 519, umversorum bono- rum, 518, universorum qu£e ex quaestu veniunt, 517, vectigalium, 51S. Socii, 32 ; et nomen Latinum, 32, Sodomy, 1061, 1068. Solarium, 403, 901. Soldier — desertion of, to enemy, 1066 ; error of law, relief from, 660 ; lex Falcidia, 751 ; marriage, 680, 688 ; succession to intestate comrade, 865-6 ; tutela, 717, 720; will of, 771-2, 761, 779, 796, 807, 809, 928, 945. Solidarity, 561-2. Solum— Italicum, 260-61, 289-90; pro- vinciale, 272. Solutio, 633-8 ; per errorem, 657-61, 894, 923 ; imaginaria, 639, 641, 1032. Solvere, 452. Sources — of Roman history, 1-3; Law, 60-61,75-9, 119-21. Spadones, 211 (adoption), Specificatio, 280. Spendthrifts. See Prodigi. Spiritual lieings. as heirs, 799-800. Sponsa, 525, 695. Sponsalia, 695-6, 525, 535. Sponsio, 565 (definition), 131, 368, 460, 526, 538, 570 (form), 575 (extinction of), 577 (co-sureties), 975, 982-3> 998,, 1003 (in interdict), 1019 (costs). Sponsor, 565, 570-77 ; as to prescription in action against, 993, See Sponsio. Sponsus, 525, 695. Sportulse, 973. Spurii, 683, 677. Stagnum, 313. Statuliber, 176, 602. Status, 127-9,138, 140, 655, 666-735 ; by birth, rules determining, 168, further illustrations, 187-8 ; reductions of, 214- 220 ; tutelary relations, 666-735 — cura, curatio, 731-5, husband and wife, 678- 696, parent and child, 676-8, patron and freedmau, 666-76, tutela impuberum, 696-727, tutela mulierum, 727-31. Statute-process (Legis actio), 23, 37, 41-42. Stellionatus, 1071. Stillicidii recipiendi vel non recipiendi jua, 417. Stipendiaria prsedia, 287. Stipendium, 403, 287. Stipulatio, 459-66 : alternative, 579-80 ; application of, 464-6 ; Aquiliana, 639-40, 642 ; in Bracton, 115 ; com- Stipulatio (continued). mittitur, 496, 689 ; communes, 405-6 ; convention ales, 464 ; how created, 461-3 ; definition, 459-60 ; derivation of name, 460; derivative theories (Savigny, Ortolan, Maine), 536-40 ; forms, 461-2, oldest form, sponsio, 526, sponsio perhaps also oldest name, 538, rela- tion of question and answer, 461- 462, words usable, 461 ; fructuaria, 1002 ; history of, 525-6, 530-31, 534-5 ; inutiles, 593 seq. ; joint, 551-62 ; judi- ciales, 465, 464 ; Manihan (sale), 498 ; novatio of, 629 ;, preepostera, 592 ; prsetorise, 465, 464 ; remedy, 463-4 ; written, 463. Stipulator, 454, 460, etc. (see Stipulatio) ; relations with adstipnlator, 564, 641. Stirpes, division of intestate inheritance in, 835, 864. Stoics, the, on the Law of Nature, 36, 161. Studemund, 84, 65, 81. Students-at-law, 55, 79-80-. Stuprum, 678, 1067. Subscriptio, in criminal proceedings, 59 ; rescript (G. 1, 94), 200. Subsliiutio of heirs,. 788-94 ; exemplaris, 793-4 ; by fideicommissa, 822-4 ; pupil- laris, 791-3 ; vulgaris, 788-91. Subvades, 972. Succession — intestate, 126, 830-74 ; sin- gular, 739 ; testamentary, 764-830 ; universal, 739-887 — addictio bonorum libertatis eausa, 742 - 4, arrogatio, coemptio in manum, 740-42, enslave- ment of women (by Senatus Consultum Claudianum), 740, Inheritance (testa- mentary, intestate), 739-887. Suffragium et honores, 5, 30. Suggestio falsi, 596. Suggrunda, 419. Sui — et necessarii heredes, 876, 879-81 ; heredes, 775-9,, 799, 805, 808, 833-5, 839, 882 ; juris, 193-4, 117, 128. Summons, the, 17, 967-73 : tinder Im- perial constitutions, 971-3, 968 ; under Prtetor's Edict, 969-71, 968 ; under XIL Tables, 17,968. Superficies, 429-30, 383 ; contrasted with hire, 507 ; solo eedit, 276, 383. Superinductiones, 805. Suppellex — defined, 909, 953 ; legacy of, 907-9. Supplicium summum, 1064. Si>i:)pressio veri, 596. Sureties, 565-79 : how constituted, 570-74, restrictions on, 571-4 ; forms, 565-8 ; how released, 575 ; remedies, 576 ; rights and duties of creditor, debtor, and surety, 568-70. Co-sureties, 577-9. Surveyors, on land trials, 1013. Suspension from professional practice, 1065,1069. INDEX. 1 109 Syngraphae, 468-9. Synopsis— Basilicorum, Legum, 96. 6-97, minor, 96 ; Tabellio, 442, 504. Tabula— accepti et expensi, 466 ; Hera- cleensis, 1040 ; XII. Tabulse, or XII. Tabularum lex (See Twelve Tables) ; nuptiales, 690 ; tabulas testamenti— possessio bonorum contra, 860, 776, 844, 851-2, 866, 872, secundum, 860, 768, 809, 844. Tabularis, 207, 772^ Tacit consent, 681. Tacita hypotheca, 443. Talio, 154. Tascodrogi, 1056. Taxatio, 988. Taxation— on things bequtatlied, 901 ; on land, 403, 901. Telum, 1061. Tempus— continmim, utile, 844. Tenant farmer, 398, 447, 607 seq. Tender, of debt, 637. Tergiversatio, 1067. Terminalia, 250. Terminus motus, 249, 332. Testamenti faclio, 794-804, 717, 824-5, 942 : definition, 794 ; incapacity of heirs, 798-802, of legatees, 942, of testator, 794-8, of witnesses, 802-4 ; necessary to tutores testamentarii, 717 ; removal of incapacity by fideicommissa, 824-5. Testamentum (formal will), 764-809 : per aes et libram, 767-8 ; of blind, 77-2 ; causes as to, in Bracton, 114 ; classifi- cation, 126, 138 ; codicilli (introduction of), 765, 810 ; made in Comitia, 766 ; derivation of name, 538-9 ; destitutum, 805 seq. ; of person suffering from con- tagious disease, 772 ; disherison, 774-9, 783-4 ; essential elements in, 764 seq.; erasures, 805 ; falsum (forged), 885, 1062 ; forms — extant in Justinian's time, 769-91, obsolete in Justinian's time, 766-9, special forms for particular classes, 771-3; heirs, appointment and substitution of, 786-94 ; holograph, 770 ; incapacity ^testamenti factio), 794-804, 717, 824-5, 942 ; inductiones, 805 ; injustum, non jure factum, 805 seq.; inofficiosum, 780-2, 785; inspec- tion, 773-4 ; interlineations, 805 ; in- terpretation, 953-64 ; irritum, 805 seq.; legitim, 780-86; liturffi, 805; by mancipatio, 767-8 ; manumission by, 175-7 ; nullius momenti, 805 seq.; nuncupative (or oral)— private, 770, public, 771 ; offences as to, 1062, 1072 ; opening, 773-4 ; of parents and chil- dren, 773 ; perils of will - making, 809-10 ; priEtorian, 768-9 ; prescrip- f.inn RlW ■ in rirnrincbi 768-7 ■ nnh}ir<,. Testamentum [continued). tion, 773-4 ; revocation, 804-9 ; ruptum, 805 seq.; rustioi, 772 ; scorings out, 805 ; state seamen, 772 ; soldier, 771-2 ; superinductiones, 805 ; testamenti factio, 794-804, 717, 824-5, 942; written, 769-70. See Codicilli, Fidei- commissa. Testatio privata, 1055. Testimony, 1050 - 64 : admission of, 1053-6 ; circumstantial, direct, 1050 ; domestioum, 803 ; exclusion of, 1053-6 ; explained, 1050 ; false (punishment of), 1063-4 ; who cannot give, 1056 ; of opinions (not admitted), 1055 ; oral, 1055 ; production and recording of, 1053, 1057-«0 ; sanctions of, 1060 ; sufficiency of, 1053, 1056-7 ; written, 1054-5. Theft. See Furtum, Actio Furti. Theophilus, 93 ; on selling up a bankrupt, 1038 ; tacit consent of insane person, €81 ; jus civile, 118 ; manumission — board of, 180, valid reasons of, 181, of slave (by sitting at table with his master), 178 ; pactum de constitute, 567 ; table of propinquity, 832 ; autho- rity of senate, 120 ; Senatusconsultum Sabinianum (adoption of one of three sons), 853 ; free woman made slave for cohabitation, 170 ; vindicta, 173. Thesaurus, 256-7. Thief. See Furtum. Fur improbus (shameless), 241 ; manifestos (taken in the act), 326-7 ; nocturnal, 152. Threatened — damage (damnum infectum) 39, 465, 495, 975 ; harm (posita aut suspensa quse possunt, si ceciderint, aiicui nocere), 150, 153-4. Tignum, 276 ; tigni immittendi jus, 417. Time — of judicial proceedings, 51-52 ; of performance of contract, 585-6, of legacy, 930 ; how reckoned, 673 ; for prosecuting suit (limitation of), 1010. Title deeds — custody of, 759 (joint heirs), 904 (heir or legatee) ; of slave, 178 ; acquisition by transfer of, 282. Titulus Justus, 270, 283. Torts, 20, 126-7. Torture — of another man's slave, 1070 ; of inheritance, 1060. Traditio, 282-8, 258, 260 : acquisition by (conditions of), 282-6; by agents, 323-5 ; nuda, 283 ; restrictions on, 287 ; constituting prsdial servitude, 420 ; by transfer of title-deeds, 282. Tralatitium Edietum, 35. Transaetio, 549. Transcriptitia nomina, 468, 466-71. Translatio legatorum, 950-51. Treason, 1061, 1065-7. Treasure-trove, 256-7. Trespass in pursuit of wild animals, 256. iCrial, 973-1029, 18 (XII. Tables) ; new. mo INDEX. Testamentum (continued). 1010-11 ; proceedings preliminary to, 967-73, 17 (XII. Tables). Tribes— Assembly of the, 14, 25-27, 60, 66 ; local, 10, 26 ; the three, 3. Tribonian, 90-92. Tribunes— Consular, 27 ; of the Plebeians, 13, 14, 25-27, 70. Tribus Esquilina, 33. Tributa Comitia, 14, 25-27, 60, 66. Tributaria pr^Hia, 287. Tributum, 403, 287, 901, Trinocti'um, 19, 225. Tripertita, 54. Tripertitum jus, 117, 76'9, Triplicatio, 992. Trumping up charges [calumnia), 1020-21, 827, 986, 999, 1019, 1066, 1074. Trusts. See Fideicoinmissa. Trusts inter vivos, 656-7 ; trust upon a trust,- 823. Turn quern ex familia, 861, 869, 870. Tutoi', Tutela — classification, 126-30, 138^ 140 ; divisions, 696-7 ; in. XII. Tables 19. Impuberum, 600-727 : appointment of tutores, 708-15, who could not be, 716-18, who were exempted from serving (excusationes), 718-21,. 725-6, could not be appointed by iideicommissum, 825, inquisitio {by Prffltor), 709-10, 716 ; auctoritas of tutor, 699-701 ; co-tutors, 706-8 ; dativi, 708, 713-16; definition, 697-8, opposed to cura, 698, to potestas, 698 ; tutor ought to certus, 922 ; duties of pupillus, 705-6, of tutor, 698-705 ; extinc- tion of, 721-3 ; fiduciarii, 712 (Gaius), 713 (Justinian); honorarii, onerarii (acting), 707 ; legitimi,. 710-13, 715 ; preatorius,. 702 ; tutor's management of property of pupillus, 702-5 ; remedies, 723-7 ; responsibility of tutor, 704, of heirs of tutor, 724-5 ; restraints on appointment, 716-21 ; security required from tutores, 715-16, 724 ; crimen suspecti tutoris, 713, 721-2, 726-7 ; testamentaria, 708- 710,713,715. Mulierum, 727-31 : appointment (modes of), 729-31 ; Atiliani, 730-31 ; auctoritas of tutor, 728 ; cessicii, 730 ; dativi, 729-30 ; de- finiticm, 727 extinction, 731 ; fiduciarii, 730 31 ; legitimi, 729 ; optivi, 729 ; remedies, 731 ; testa- mentarii, 729. Tutela of Latins, 713 ; of parent over emancipated children, 712 ; of patron (and descendants) over freedman, 711-12. Twelve Tables, the, 16-24 ; and paisim : Twelve Tables, the {coniirmed). accessio, 276 ; actiones legis, 975 ; adjournments in judieio, 1008 ; arbores — ^furtim caesffi, 251-2, 332, over- shadowing, 253 ; beating, as punish- ment, 148 ; body, protection of, 147 ; carmen, 148 ; child, sale of, 192, 196-7 ; person without curator, 732, 734 ; damage to immoveables, 373 ; damnum injuria, 242 ; debt, judgment, 1033, 1039 ; debtor, judgment, 169 ; delict, 646 ; deposit, 481 ; divorce, 690-91 ; dos, 295-6 ; relation of Perpetual Edict to, 123 ; familia, 259, 757, 775 ; tiducia, 529 ; furiosus, 732, 734 ; furtum, 152, 169, 184, 326, 328; injuria, 154-5, 551 ; interest, 652 ; intermarriage of patricians and plebeians, 22, 688 ; joint heirs, 759 ; judicis postulatio, 978 ; legacies, 749, 751 ; legis actio, 975 ; lex Aquilia, 551 ; libellers, 1069 ; libertatis adsertor, 184 ; mancipatio, 209-10, 212, 229 ; manus injectio, 1030-31 ; paterfamilias, 190, 191, 259 ; pauperies, 248, 331 ; pecuiiia, 259 ; person — accidentally killing a, 146, execution against the, 1034, protection to the, 147 ; pignoris capio, 1044 ; pro- cedure, 122, 124, 128, 967 : prodigus, 732, 734; property — harm to, by accident, or by negligence, 146 ; sacra, 746-7 ; saeramentuni, 976 ; sale, 284 (delivery) ; stipulatio, 538 ; succession, intestate, 779, 833-40, 848 seq. ; sum- mons, 968-72 ; telum, 1061 ; tutela, 708, 710-12, 724, 726,- 729, 731 ; usu- capio, 269-70, 272-3 ; usus, 225-6 ; vades, sub-vades, 972 ; via, 415 ; vindicatio (costs), 337 ; wills, 768, 775 ; false witness, 1064. IIlpian, 78. TJnde — cognatx, 848 seq., 861 seq.; cognati manuraissoris, 861 ; decem personae, 851r 860-6 ; legitimi, 848 seq., 860 seq., 869 ; liberi, 848 seq., 860 seq. ; liberi patroni patronseque et parentes eorum, 861-9, 870 ; vir et uxor, 848, 861. Universal succession, 739-887 ; sale of debtor's, 1036-42. Universitas, 314 ; juris, 314. , Unskilfuluess, as negligence, 246. Usuarius, 409-11, 237, 247. Usucapio, 265-74, 263-4, 645-6, 1015, 1038 : accession, 266 ; acquisition — necessary conditions, 266-70, restraints on, 270-4 ; when bona fides of possessor not required, 269 ; in Bracton, 114 ; not applicable toj)roperty of Ifiscus, 272 ; of immoveables, 265 ; libertatis, 407, 418, 428; hiorativa, 270; of moveables, 265 ; pro herede, 269 ; who could rescind a title acquired by, 271 ; INDEX, II I I Usucapio (continued), of servitudes, 419 : XII. Tables on, 269-70. Usurffi — legitimjE, 652, 724 ; pupillares, 723-4 ; usurarum, 653, lu32. See Interest, Usureoeptio, 270, 435-6 ; luorativa, 436 ; ex preediatiira, 270. Usnrputio, 267-8 ; civilis, 268 ; naturalis, 267. Usus— marriage, 19, 225-6, 678 ; use, 4;'i9-ll, compared 'vvith conimodatum, 475-6, nudus, 409. XJsusfructus, usufructuary, 396-409, 237, 247, 253, 384-6, 900,'912-13: aliena- tiou, 401-2 ; contrasted with annuity, 912-13 ; of tiling bequeathed, 900, 912 ; conditional, 406 ; creation, 404-5 ; de- finition, 396 ; duties of fructuarius, 402-3 ; in connection with Possession, 384-6 ; quasi-usufruct, 397-8 ; remedies, 409 ; rights of fructuarius, 398 ; of owner, 403, 402; securities (fidejussores) given by usufructuary, 406 ; how termi- nated,406-8; no transvestitive facts, 408. TJterini, 782, 860. Uti optimus maximusque, 900, 907. Utilis actio, 40, 1038, 214. Utilitas, 43, 244. Vacaeids, 100, 108-9. Vacua possessio, 368, 900. Vades, 18, 972, 1008. Vadimoniuin, 985, 526, 972, 1007 ; de- sertum, 1008. Variance, 995-7, 1018. Vaticana Fragmenta, S7-88. Vectigal, 426-7, 901. Venditio— See Sale. Bonorum, 120,1037; imaginaria, 492. Verdict, 59. Verna, 168-9. Versura, 652. Vestal virgius — could not be heirs, 798 ; released from potestas, 220 ; no tutela of, 19, 731. Veterani, 688, 720, 751. Veto, 14, 1045-6. Vi bona rapta, 241, 330, 1070. Via — privata, publica, vioinalis, 311-13 ; servitude, 415. Viator, 14, 973. Vicarius, 74, 604, 905, 911. Visiles, 674 ; Vigilum Prsefectus, 674. Villicus, 619. Vinculum juris, 453. Vindex, 17, 968, 1030-31, 1034 ; com- pared with fidejussor, 969 ; praetorian substitute for, 969, 1032. Vindicatio, 221, 209-210, 230, 333-7, 387, 976, 132, 1073 ; legacy per vindioa- tionem, 888-93, 897. VindiciEe, 976-7, 982-3. Vindicta, 173-4, 180, 210, 212, 213, 229. Virilis pars, 562. Vis (Force, violence) — what is ? 252 ; ar- mata, 250-51 ; civilis et festuoaria, 976; in contract, 693 seq. ; cottidiana, 250- 251 ; justifiable, 151-2 ; laws on, 67 note 5 ; major, 477 ; privata, publica, 251, 1062, 1069. Vitium — of animal, slave, etc., 500-1 ; noxae, 501 ; vitia possessionis, 360, 381. Vocatio in jus, 967-73. Vulgo ooncepti, 677. Wagee. See Saoramentum, Sponsio. Water, rights to, 415-6, 4 24-5. Way, rights of, 415-16, 424. Weights, false, 1067. Western Empire — fall of, 69. Wife. See l)os, Manus, Marriage. In manu, and not in manu, 195. Plusband and, 678-96 ; authority of husband over, 223-4 ; divorce from husband, 691 ; in- capacity to contract, 605, 610 ; inherit- ance (aditio), 876 ; injuria to, 195, 224; position of, 858 ; property, 813 ; release from manus, 224 ; succession to intes- tate husband, 835, 863 ; no sale of, 224 ; theft of, 224. Wild beasts, criminals condemned to fight with, 1064 ; slaves, 158. Will. See Testamentum, Codicilli, Pidei- commissa. Windscheid, 104-5. Wine, 909. Witchcraft, 20, 1068. Witnesses — ^to grant of liberty, 177-8 ; in a trial, 1050-64— credibihty of, 1050, 1055, examination, 1060, exclusion, 1055-6, false, 1063-4, expenses, oatli, production, summons, torture, 1060 ; to a will, 769-70, 802-4. Woman — could not adopt, 211 ; could not be arrogated, 206 ; incapacity to con- tract (in tutela), 606 ; appearance in court, 971 ; mother must apply for curator to insane child, 715 ; disheri- son, 776, 779 ; promise of dos by, 573 ; relief from error of law, 660 ; as heir, 750 ; intercessio by, 573-4 ; as legatee, 750; legitim, 781 seq.; intestate suc- cession (disabilities of women agnates), 858-9 ; as procurator, 1027 ; property, 728, 779 ; made slave (by Senatus-con- sultum Claudianum), 740 ; married (See Dos, Manus, Wife) ; summons of, 971 ; testament! factio, 795-6, 798, 803; trusts, 824 ; tutela of, 708, 727-31 ; as tutor, 718 ; must apply for tutor to her children, 716 ; wills of, 795-6. Wood and timber, rights of usufructuary in, 399. Workman and employer, 512-13. Wounds, 1069. Wrong — civil, contrasted with Sin and Crime, 1063-4 ; in XII. Tables, 20-21. III3 INDEX TEXTS OF THE INSTITUTES OF GAIUS Translated and referred to in this Worh. Book Sect. Page Book Sect Page I ook Sect. Page I. 1 117 1. 45 182 I. 93 200 2 119 46 182 94 200 3 120 47 178 95 198, 674 4 120 48 160 96 262-3 5 120 49 160 97 203 6 121 50 160 98 205 7 120 51 160 99 205, 210 8 124 52 157, 160 100 206 9 53 159 101 206 10 667 54 265, 672 102 206-7 11 667 55 189, 197 103 211 12 667 56 197 104 211 13 675 57 688 105 211 14 675 58 683, 684 106 211 15 675 59 684, 685 107 204-5 16 675 60 684 108 222 17 160,264, 672 61 684, 685 109 222 18 181 62 684 110 225 19 181 63 686 111 225 20 174, 180 64 683 112 225 21 182 65 198 113 224-5 21 A 182 66 198 114 731 22 672 67 83, 199 115 731 23 672 68 83, 199 , 115a 83 24 672 69 83, 199 115b 222-3, 795 25 675 70 83, 200 116 228 26 675 71 83, 200 117 228 27 675 72 197 118 228 28 673 73 198 118a 228 29 181, 673 74 200 119 229 30 83, 181, 673 75 200 120 260 31 673 76 688 121 262 32 673 77 83, 688 122 229 32 A 673 78 65, 187 123 229 32 B 674 79 65, 187 124 214 32 674 80 83, 187-8 125 214 33 264, 674 81 83, 188 126 214 34 264, 674 82 169 , 127 214 35 264, 674 83 188 128 218 36 178 84 188 , 129 215-16 37 178 85 188 130 220 38 180 86 188 131 218 39 181 87 199 , 132 212-13 40 180 88 199 , 133 212 41 180 89 168 134 209-10 » 42 182 90 187 , 135 208 43 182 91 387 , 135 a 208, 228 44 182 92 83, 187 , 136 223-4 1 1 14 INDEX TO THE Book Sect. Page Book Sect. Page Book Sect. Page I. 136a 227 I. 195 730 II. 56 270, 362 137 227 )) 196 77 note, 722 „ 57 83, 270, 362 137 a 227 197 732 ,f 58 270, 362 138 229 a 198 734 }) 59 362, 435 139 230 199 715 11 60 362, 435-6, 527 140 192, 228, 230 •) 200 716 ») 61 270, 362, 414 141 228-9, 230 II. 1 ,, 62 142 697 ji 2 316 ,, 63 299 143 697 ,j 3 316 ,, 64 232, 437 „ 144 708 jj" 4 315 T, 65 282 145 731 5 315 66 256 „ 146 709 n 6 316 J, 67 346 147 709 rt 7 316 „ 68 346 „ -iis 729 8 317-18 ,j 69 267 149 729 J, 9 >> 70 276 150 729 ,f 10 71 276 151 729 ,, 11 ,y 72 276 152 729 12 287 73 276 153 729 „ 13 287 „ 74 278 154 . 729 „ 14 287 „ 75 278 155 711, 1038 ), 15 77 note, 261 ,, 76 277 156 685 ,, 15a 261 „■ 77 279 157 729 16 261 78 279-aO 158 685 IJ 17 261 „ 79 280-81 159 215, 219 JJ. 18 287 „ 80 232 160 215 „ 19 261, 287 » 81 728 161 218 JJ 20 261, 287 ,, 82 232, 699 162 219, 220 JJ 21 287 83 728 163 723 JJ 22 260 „ 84 700 ]64 711 ^J 23 260 „ 85 728, 881 165 712 J^ 24 262 „ 86 295, 323, 881 1C6 712-13 ,J 25 262 » 87 323, 881-2 167 713 26 260-61 88 266, 323 168 730 JJ 26 a 260-61 JJ 89 323 169 730 JJ 27 260-61 JJ 90 228, 323 170 730 JJ 28 287 ,r 91 401 171 730-31 JJ 29 260, 419 JJ 92 323 172 730-31 ,, 30 407, 408 J, 93 324 173 83, 730 31 404, 405 >> 94 401 174 83, 730 ,, 32 404 »j 95 324, 378 175 712 ,, 33 404 )) 96 127 176 83, 730 34 881 97 127 177 83,730 JJ 35 881 JJ 98 127, 223 178 730 J, 36 881 ,j 99 127 179 730 37 77 note, 881 „ 100 127 180 83, 730 JJ 38 627 JJ 101 766 181 730 JJ 39 627 J, 102 767 182 83, 713 JJ 40 263 J, 103 767 183 714 »■ 41 263 JJ 104 628, 767-8 184 701-2 ,, 42 266 J, 105 803 185 714 43 268 ,j 106 803 136 714 JJ 44 266-6 ,T 107 803 187 714 ,, 45 272 108 804 188 697-8 jr 46 272 ,j 109 771 189 697 „■ 47 272 J, 110 798 190 727, 728 jy 48- 272 „ 111 798 191 705, 731 ,f 49 272-3 ,, 112 83, 795 192 728 50 269, 272-3 ,j 113 795 193 727 JJ 61 269 JJ 114 794 194 731 JJ 52 269, 362 JJ 115 787 195 228, 730 JJ 63 269, 362 JJ 116 787 195 a 730 JJ 64 269-70, 362 JJ 117 787 195 b 730 „ 55 270, 362, 746 „ 118 705 INSTITUTES OF GAIUS. III5 Book Sect. Page Book Sect. Page Book Sect. Page II. 119 528, 768 II. 182 792 II. 245 449 120 768 )I 183 792 jj 248 811 121 796 »J 184 792 jj 247 811 122 796 J] 185 800 JJ 248 812 123 77 note, 776 )) 186 800 tt 249 812 124 776 1i 187 800 U 250 812 125 776 »> 188 800-1 251 817 „ 126 776 189 801 J, 252 817-18 127 774, 776 jj 190 801 JJ 253 818 128 776 191 897 >r 254 820 129 777 192 888 ii 255 820-21 130 777 193 888-9 )J 256 820-21 131 777 194 889 )> 257 820-21 132 777 195 77 Bote, 889 57 258 820-21 133 777-8 196 891 n 259 812 134 777-8 197 891 n 260 895 135 778 198 891 n 261 895 136 203, 778-9 199 893 )j 262 895 137 203, 778-9 200 7 7 note, 889-90 » 263 175 138 808 201 889 264 176 139 808 202 891 n 265 176 140 808 203 891 266 176 141 808 204 890 „ 267 175, 176 142 83, 808 205 893 „ 268 894 143 83, 808 206 893 „ 269 894 144 807 207 893 „ 270 894 145 809 208 893 „ 270 a 895 146 805 209 889 )) 271 895 147 809 210 891-2 ,, 272 895 148 364, 845-6 211 892 ,, 273 827 149 846 212 892 JJ 274 824 150 866 213- 890 „ 275 824 151 805-6 214 890 „ 276 83, 824 152 875 215 893 „ 277 822 153 260, 875 216 889 „ 278 896, 1013 154 875, 1038 217 77 note, 890-91 „ 279 896 „ 155 875 218 77 note, 890-91 „ 280- 894 156 876 219 77 note. 890-91 jr 281 894 157 876 220 77 note, 892 ,j 282 896 158 876 221 77 note, 892 „ 283 894 159 876 222 77 note, 892 j> 284 824 160 876 223 77 note, 894 „ 285' 83, 824 161 876-7 224 749 )j 286 824 162 877 225 750 „ 287 83, 825 163 877 226 750 ,, 288 896 164 877 22r 750 ,, 289 825 165 878 228 750 III. 1 833 166 878 229 894 ,»■ 2 833 167 879 230 894 ,»■ 3 835 16S 878 231 77 note, 894 tr 4 833 169 879 232 895 !)■ 5 834 170 878 233 895 „■ 6- 834 171 878 234 895 „ 7 835 172 878 235 896 ))- 8 835 173 878 236' 896 „- 9 835 174 788 237 896 „■ 10 836 175 790 238 922 tr 11 837 176 789 239 922 J? 12 837 „ 177 789 240 922 If 13 836 178 789 241 798, 895 „ 14 858 179 791 242 799 „ 15 837 180 791 243 896-6 „ 16 837 „ J.WV „ 181 792 244 77 note, 943 " 17 837 I ii6 INDEX TO THE Book Sect. III. 18 19 20 21 22 23 2i 25 26 27 28 29 30 31 32 33 33 a 34 35 36 87 38 39 40 41 42 43 44 45 46 47 48 49 50 51 62 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 70 71 72 73 74 75 76 77 78 79 Page 848 848 848 836, 848 848 848 848 848 849 657-8 860 858 861 851 842 855 855 845, 847 845 845 84S 741-2, 845 867 867 867 867 867-8 868 871 871 871 871 872 872 872 872 872 872 872 873 873 873 873 873 873 873 83, 874 874 874 874 1039 81, 1039 1037-8 Book Sect. Page Book Sect. Page III. 80 843, 1033 III. 142 505 81 842, 1038 ,, 143 506 82 741 ,} 144 505 83 219, 223, 741 145 427 84 223, 741 jj 146 506 85 881 J, 147 506 86 881 jj 148 517 87 77 note, 881-2 ,, 149 522 88 455 ,, 150 522 89 458 151 523 90 472 „ 152 523 91 658 ' M 153 523 92 461 1, 154 523 93 461, 565 JJ ]55 483 94 461, 526 156 483 95 „ 157 600 96 ,} 158 599 97 599 159 489 97 a 599 „ 160 489 98 77 note, 591 )» 161 486 99 £99, 600 „ 162 482 100 592 163 610 101 592 „ 164 613 102 462 „ 165 613 103 77 note, 623-4 „ 166 265, 612 104 «02, 605 „ 167 77 note, 612. 105 461 „ 167a 612 106 606 „ 168 633 107 607 9, 169 639 108 606 ,, 170 639 109 607 1J 171 641 110 563 172 639 111 664 „ 173 641 112 564 ,j 174 641 113 564 „ 175 459, 641, 892 114 564, 605 ,, 176 631 115 565 « 177 629 116 570 178 77 note, 629-30 117 563, 565 „ 179 630 318 565 ), 180 1015 lis 665, 566 181 1015 120 ,576 „ 182 ., 121 63,576-7,578-9 „ 183 328 „ 122 577, 579 „ 184 326 „ 123 62, 577, 579 „ 185 327 124 572 J, 186 828 125 572 )t 187 328 „ 126 571 188 328 127 599-70, 576 H 189 169, 326 „ 126 468 ,, 190 326 „ 129 468 ,) 191 328 130 468 Jt 192 329 131 467 „ 193 329 132 467 « 194 329 „ 133 77 note, 469 ,, 195 235-6 „ 134 469 „ 196 235-6 135 490 M 197 236 „ 136 490 „ 198 234 „ 137 490 ,, 199 194, 224 „ 138 490 200 723 139 504 ,j 201 246 140 77 note, 491-2 202 240 H •"7 — !•„ im 203 237 INSTITUTES OF GAIUS. III7 Book Sect. Page Book Sect. Page Book Sect. Pago III. 204 237 IV. 41 368,453,988,989 IV. 103 1010 205 238 It 42 988-9 ^1 104 648, 1010 206 238 M 43 988 J, 105 648, 1010 207 239 )) 44 989 ,, 106 1015 208 241 45 986 ,, 107 1015 209 241 11 46 986 ,, 108 980, 1014-15 210 243 47 453, 986-7 „ 109 1010 211 246 Tl 48 110 646 212 331 »» 49 988 ,j 111 646 213 330 )) 50 988 „ 112 650 214 330 t) 51 988 ,} 113 650 215 564 J) 52 988-9, 1006-7 jj 114 77 note, 1009, 1015 216 564,565' )] 53 995, 996 t} 115 40, 990 217 243 63 J 995 116 40, 990 218 330-31 ,j 54 996 „ 117 40, 990, 1016 219 243-4 ^, 55 995-6 „ 118 40, 990 220 146,147,148,149 ,j 56 996 )j 119 40, 990 221 194, 224 ]} 57 996 tt 120 40, 990-91 222 164 n 58 996-7 n 121 40, 990-91 223 154 if- 59 996-7 tt 122 40, 990-91 224 155 60 997 n 123 40, 991 225 155 j^ 61 993-4 )f 124 40, 991 IV. 1 131 jj 62 994 ft 125 40, 991 2 124, 131, 453 jj 63 994 )r 126 40, 991 3 125, 132 ti 64 994 n 126 A 992 4 329 J] 65 994 H 127 40, 992 & 132 66 994-5 ,) 128 40, 992 6 1073 67 994-5 ,r 129 40, 992 7 1073 68 994-5 130 40, 992 8 1073 69 605 ,) 131 40, 992 9 1073 jr 70 614-15 » 131 A 992 10 71 617, 618 132 40, 992 11 974-5 J 72 604 „ 133 40, 993 12 975 ^ 73 604, 615 „. 134 40, 84, 993 13 975 J 74 620 „ 135 84, 993 14 975-6 )r 75 166 t» 136 84, 993 15 1007 76 184 )) 137 84, 993 16 50 note, 976 77 167 tr 138 41, 84, 998 17 977-8 )) 78 77 note, 193, 1037 )j 139 41, 84, 998 17 A 979 79 77 note, 196-7 )» 140 41, 84, 998 18 979 80 jr 141 41, 84, 998 19 979 81 )) 142 41, 84 20 979 82 979, 1022 143 41,84 21 1030 83 1022-3 ,, 144 41, 84, 842 22 63, 1031 84 1023 „ 145 41, 1038 23 1031 85 1022 ,,. 146 41, 1036 I. 24 1031 86 1022 )> 147 41, 448 25 65, 1031 87 1022 )t 148 41, 357-8 "„ 26 1044 88 1023 >) 149 41, 358 » 27 1044 " 89 1023-4 >r 150 41, 358 28 1044 90' 1023-4 151 41, 358 " 29 1044 91 983 ' )• 152 41, 358, 371 „ 30 39, 81, 975 92 983 153 41, 358 31 39, 975 93 982 )f 154 41, 250-51, 390 32 1073 94 982 it 1,55 41, 251, 390 33 1073 95 65, 982 )) 156 41, 359, 373 34 843 96 1023 jr 157 41, 359, 373 35 1037 " 97 1023 j» 158 41, 359, 373 36 263-4 98 1023 159 41, 359, 373 38 342 " 99 715 „ 160 41, 359, 373 219, 220 100 1024 JJ 161 41, 999 " 39 987 101 1024 JJ 162 41, 999 ",, *o 987 » 102 1024, 1038 JJ 163 41, 77 note, 999 iii8 INDEX TO THE Bnot Sect. Page Bonk Sect. Page Book Sect. Page IV. 164 41, 998-9 IV. 171 982, 1003, 1019 IV. 179 1021 ^1 165 41, 998-9 1032 „ 180 1021 166 41, 1001-2 „ 172 1019 181 1021 166 a 1002 173 1019-20 182 1021 167 41, 1002 174 1020, 1032 183 970-71 168 41, 982, 1002 175 1020 184 985 169 41, 1002 176 1021 185 985 170 41, 1002-3 177 178 1020 1020-21 186 187 985-6 986 INDEX TEXTS OF JUSTINIAN'S INSTITUTES Translated and referred to in this Work. 3ool t Tit. Sect I. 1 pr. » tJ J' 1 2 3 4 " 2 pr. 1 2 J) 3 4 5 " it 6 7 8 tl )1 9 10 » 11 „ 12 ,, 3 pr. " " 1 2 jj „ 3 " )» 4 5 ft 4 pr. 1 )J 5 pr. M >» 1 " )» 2 ») JJ 3 71 6 pr. Page Book Tit 116 I. 6 116 it }> 84 J» )> 116 117, 120 1) ■») 117 117 )» •>» 118 >i 7 119 8 120 )) » 120 !> J) 120 9 120 „ „ 121 1) » 119 »> M 119 „ 10 117, 118 )) >} 124 )> ») 157 157 !) )f 160 171 » n 162 169, 667 » » 667 j> j> 171, 667 177 )) 1) 174 )> >) 675-6 „ 11 178 ») » Sect Page Book Tit. Sect Page 1 179 I. 11 2 2U9 2 179 ,. » 3 207 3 178-9 " » 4 211 4 180 5 207 5 180 6 207 6 180 7 207, 681 7 180 8 207-8 pr. 182 9 211 pr. 160, 193 10 211 1 157 11 205 2 159 12 177-8 pr. 197 „ 12 pr. 214 1 678 >, 1 218 2 189 2 218 3 197 „ « 3 215 pr. 678, 6S0 4 220 1 684, 685 5 215-16 2 684, 685 6 213, 214 3 «84, 686 7 212 4 684 „ '8 210-11 5 .685 9 208 6 686 10 212 7 686 I'-i pr. 697 8 686 1 697-8 9 687 2 697 10 684 3 709 11 686 4 709 12 683 11 „ 5 709-10 13 201 1, 14 pr. 717 pr. 203 1 717 1 206, 210 2 717 INSTITUTES OF JUSTINIAN. III9 Book Tit. Sent. Page 1 Bonk Tit. 26 14 3 709 I. » )J 4 709 )) ) » 5 709 ») , 15 pr. 711 )I J n 1 685 M > >) 2 710 ') ] 1) 3 586 , 16 pr. 215 ,, ) » 1 215 J-J 1 >i «> 218 J, . „ 3 219 M . 4 160, 214 J. . 5 215 „ I! 6 685 » . 7 711 W ! 17 pr. 712 , 18 pr. 712 „ , 19 pr. 713 „ „ 20 pr. 714 ,, 1 714 jj 2 714 w 3 714 II. >. 4 714 >t 11 5 714 )) •> 6 697-8 I) 7 705 )J ',', 21 pr. 699 » 11 1 700 J8 ij 11 2 702 )> 3 701-2 JI ',! 22 pr. 713,723 1 723 » .7 » 2 723 „ » 3 723 „ >. )i 4 723 „ 11 5 723 M » i> 6 721 „ „ 23 pr. 732 » "1 733, 734 " 2 732 )) 3 732, 734 )* 4 732 )J 5 732-3 )> 6 733 „ " 24 pr. 715 „ 1 707-8 „ 2 725 „ 3 725 M 4 725 „ ',', 25 pr. 719 „ 41 1 720 „ 2 720 ,, 3 720 „ 4 717 „ 5 719 )) 6 719 ') 7 719 8 719 „ 9 718, 720 ,, 10 718-19 „ 11 718-19 „ 12 718-19 „ I) }' 13 717, 719 )J Sect. 14 15 16 17 18 19 20 pr, 1 2 3 4 5 6 7 10 11 12 13 pr. 1 2 3 4 5 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 Page 717 719 725-6 698 735 735 718 72G 726 721 726 726, 735 722 727 727 726 721 721 727 722 722 309 310 310 -310 310 314 255 315 316-17 317-18 118 256, 345-6 346 346 346 346 257 256 275 275 256, 275 275-6 276 280-81 281 281 281 276-7 277, 278 278 278, 279 279 279-80 336 398 400,401 401, 402 257 282 287 284 Book Tit. II. 1 Sect. 42 43 44 45 46 47 48 pr. 1 2 3 pr. 1 2 3 4 pr. 1 404, 2 3 4 pr. 1 2 3 4 5 6 pr. 1 2 3 4 5 10 10 11 12 13 14 pr. 1 2 3 4 pr. 1 2 pr, 1 2 3 4 5 6 pr. 1 2 3 4 Pa {re 324 324 349 347 284 258 258 287 2S7 287 415 417 415 412 420 396, 408 405, 406 397 407, 408 407 410-11 409-10 410 410 410 411 397 290 272 272 272-3 269 • 269 269 274 273 272 272 270 266 267 272 915 916 318 308-9 758-9 299 437 699-700 323 294 294-5 323 323, 324, 766, 324 378 127 766 768 768 769 770 II20 INDEX TO THE Book Tit. Sect. Page Book Tit. Sect. Page Book Tit. Sect. Page II. 10 5 770 II. 17 4 809 II. 22 3 752 II t] 6 803 1 5 805 23 pr. 811 7 803 1 6 809 » 1 811 1. i> 8 804 1, 7 806 » 2 812 11 „ 9 803-4 >i 11 8 802 » 3 817 .1 -. 10 804 11 18 pr. 780 " 4 818 _, 11 804 1 781 5 820 ji 12 770 2 781 „ 6 820-21 11 13 770 ^^ 3 786 „ 7 821 11 14 770 11 4 785 )» 8 812 „ I'i pr. 771 11 5 785 » 9 822 11 11 1 771 n 6 782 >I 10 828 2 796 7 782 JJ 11 823 3 771-2 ", 19 pr. 875 12 826-7 11 i 772 1. 1 875 24 pr. 895 5 809 2 876 jj 1 895 6 797 11 11 3 876-7 ^j 2 175, 176 ", 12 pr. 796-7, 8.^3 11 11 4 794 'J 3 812 1 797 5 877 25 pr. 825-6 II 2 797 ir 11 6 754, 877 J» 1 828 11 11 3 796 11 11 7 880 ») 2 827 II 11 4 796 „ 20 pr. 897 3 826 5 795 1 897 III. 1 pr. 832 !! 13 pr. 776, 777 jf „ 2 897 rj 1 833 11 1 774, 777 }r ft 3 897 » 2 833 2 778 4 942 2a 834 3 778 >) il 5 900 j> 2e 833 11 11 4 778-9 i7 f) 6 944 a 2o 833 5 779 7 891 )j 3 876 6 779 8 915 >) 4 835 7 779 if )) 9 944 5 835 ", T-'i pr. 799, 801 jy ii 10 942 „ 6 835 1 800-1 ii ii 11 942 „ 7 834 " » " 2 802 12 950 )) 8 834 ^1 3 801 Ji „ 13 913 »» 9 849 4 14 914 )) 10 851-2 5 761 JT I) 15 11-12 11 852 11 11 6 762 n )) 16 903 „ 12 852 7 761 17 905, 908 >r 13 852 8 762 )j 18 902 ]) 14 852-3 9 788 >3 )J 19 902 15 854 10 176, 788 jr » 20 910, 911 » 16 854-5 11 788 21 913, 928 2 pr. 835 12 799 JJ w 22 928 JJ 1 836-837 i" 15 pr. 788 >) >> 23 927 J» 2 836 ir 11 1 790 »» '» 24 942 J» 3 858-9 2 791 25 83, 922-3 )} 3a 859 3 790 »i »» 26 799 }J 3b 859 4 789 » » 27 799 »> 4 859-60 " 16 pr. 791 jf » 28 799 »y rt 5 837 1 1 793 IT *) 29 923 « )i 6 836-7 11 2 791 11 »T 30 923-4 )} ») 7 837, 860 11 n 3 793 )) >I 31 925 It 8 850-51 11 1] 4 792 J) n 32 943 n 3 pr. 855 5 791 >T )I 33 944 ii )) 1 855 11 11 6 793 )T )I 34 918 )» J* 2 855-6 II i» 7 793 }i )i 35 941 )) 91 3 856 8 791 )» '1 36 944-5 a yi 4 856 II 11 9 792 21 pr. 949 n It 5 856-7 ,. 17 pr. 808 n ij 1 950 )f it 6 856 11 11 1 808 1. 22 pr. 751 f) )) 7 856 1) )i 2 807 11 11 1 760 4 pr. 857 11 11 3 807 11 11 2 753-4 11 9) 1 857 INSTITUTES OF JUSTINIAN. I 121 Book Tit. Sect. Page Book Tit. Sect. Page Book Tit. Sect Page III. 4 2 857 III. 14 2 475, 477 III. 22 2 490 )) 3 857 )♦ 3 480, 481 ,j 3 490 )f 4 757 J» 4 439 23 pr. 504 5 pr. 861 15 pr. 459, 463 J, 1 491-2 . 11 1 858 „ 1 456, 461 J, 2 4«1 2 861 „ 2 686 J, 3 285 J, 3 851 „ 3 913 )fl 3a 285 ,1 4 861-2 „ 4 587, 588 ^j 4 689 jj 5 862 „ 5 585 It 5 600 6 pr. 830 „ 6 586-7 24 pr. 50.'i 1 831 J, 7 651-2 ^, 1 506 2 831 16 pr. 558 ^, 2 £05 3 831 ,, 1 555 It 3 427 4 831 ,, 2 559 11 4 506 5 831-2 17 pr. 614 tt 5 510 j^ 6 832 ,j 1 611, 614-15 »» 6 514 j^ 7 831 jj 2 611-12 25 pr. 617 ji 8 830 ,, 3 612 ^1 1 52:^ ,^ 9 832 18 pr. 464 ^, 2 .522 II 10 861 J, 1 4«5 11 3 522 II 11 861 n 2 645 }i 4 522-3 1 12 861 tt 3 4-64 TI 5 623 7 pr. 866 J, 4 465 » 6 524 1 866-7 19 pr. 5«9 7 523 II 2 867 It 1 599 j^ ,^ 8 523-4 II 3 869-70 2 599 ^ ^, 9 621 >j 4 874 »> 3 624 n 26 pr. 483 8 pr. 870 )> 4 624 „ „ 1 484 II 1 871 ■M 5 462 „ J, 2 484 II 2 871 I» 6 605 M ,, 3 484 II 3 870-71 » 7 461 )» It 4 4«4 9 pr. 799, 844-5 3» 8 606 11 ft 5 485 1 845 »I 9 606 »» 11 6 483 2 842 >» 10 606 -n It 7 600 3 860-61 »» 11 sm 11 11 8 486 4 851 *f 12 463 it 9 489 5 851 13 692 ,j 10 489 6 870 „ 14 692 11 ,, n 485 7 863 ,, 15 592 n *T 12 589 8 845 S» 16 592 11 13 482 9 844 M 17 463 27 pr. 10 844 f» 18 462 11 fl 1 456, 661-2 11 844 »f 19 624 u 91 2 457, 697 12 844 11 20 624 It n 3 337 10 pr. 741 ti 21 624 tt 11 4 747 1 219, 741 1» If 22 600 »» 11 5 457, 747 2 741 « 11 23 681 tf 11 6 456, 658 S 742 1» n 24 600 11 7 65!l 11 pr. 742-3 M ft 25 687 11 28 pr. eiQ 1 742-3 rt 11 26 686 tt It 1 613 " 2 743 27 585 11 2 •613 11 3 743 1) 20 pr. 565 J, It ■» 3 612 " 4 743 It H 1 566 „ 29 pr. 633 " 5 743 te J» 2 576 tt *> 1 639 " 6 743 M 3 570 )f l» 2 639-40 11 7 743 It »» 4 578-9 « tf 3 629, 630, 631 11 12 pr. 1039 J» J> 5 571 »J 3a 630 1 69-70, 740 ti f* 7 576 „ It 4 642 13 pr. 452 11 ff 6 570 IV. I pr. 1 454 It »I 8 570 II 11 1 233 " 2 455, 458 It 21 pr. 469 t1 It 2 233 14 pr. 472 »» 22 pr. 490 11 It 3 326-7, 328 )) 1 658 ») 11 1 490 tt H 4 328-329 II22 INDEX TO THE INSTITUTES OF JUSTINIAN. Book Tit. Sect Page Book Tit. Sect. Page Book Tit. Sect. Page IV. 1 5 326 IV. 6 9 566 IV. 11 2 1024 tt » 6 476 It n 10 615 tt n 3 1025 tr » 7 236 n 11 615 tt tt 4 1026 »T »? 8 234 It 12 1073 tt tt 5 1026 yr 9 194 IT ,j 13 989 6 1025 ,j 10 236 it ,^ 14 329 tt tt 7 1025 ^j ,, 11 240, 551 tt ,j 15 132, 979 „ 12 pr. 646 ^^ }> 12 241 it ,^ 16 1073 tt tt 1 650 ,^ tf 13 237 Tt tt 17 1074 It tt 2 1009 ^, t1 14 237 )> tt 18 1073 „ 13 pr. 990 tf rt 15 238,507,510 tt tt 19 1003, 1073-4 It tt 1 694 ft 16 238 It u 20 340 ti it 2 471 n j^ 17 239 21 1074 tt I* 3 547 tr J, 18 241 ,j »> 22 1074 tt tt 4 1016 »» 19 325 tt tt 23 1032, 1074 tt tt 5 1016 ^^ 2 pr. 241, 330 24 973 6 ^^ 71 1 241-2 J, J, 25 1074 tt it 7 990 j^ »t 2 242 tt tt 26 1003,1074-5 ti a 8 1017 J, 3 pr. 243 tt tt 27 1074-5 9 1017 ,^ „ 1 243 tt 28 994 tt tt 10 1017 ^^ J, 2 152 „ tt 29 307-8, 442 tt tt 11 432, 1027 ^^ »» 3 246 „ 30 1017 „ 14 pr. 991 j^ T» 4 246 tt JJ 31 987 tt tt 1 992 ^, 5 246 tt „ 32 1011 >t ft 2 992 ^^ ^j 6 246 tt tt 33 1018 tt tt 3 992 T* jj 7 246 tt It 33 a 995 tt tt 4 578 jj 8 246 tt 33 b 995 15 pr. 997-6 ^^ f1 9 330 JJ 33 c 584-5 it it 1 j^ ti 10 331 jj tt 33 d 579, 580 ti tt 2 ^^ n 11 330 ^j tt 33 E 1018 tt tt 3 448, 842 j^ 12 243 „ „ 34 1018 Ti tt 4 357-8, 365 »» J, 13 243 jj it 35 1018-19 tt tt 4a 358, 371 I» ,j 14 330 tt n 36 604 tt ti 5 358 ^j 15 330-31 It tt 37 307 tt tt 6 250, 251, 390 ir »» 16 243-4 »I tt 38 524 tT J» 7 359 4 pr. 150 tt ti 39 1017 it ti 8 998, 1001 J, >» 1 146-7-8-9 tt tt 40 1040 16 pr. 1020 ,, »? 2 194 tt 7 pr. 605 it ti 1 1020, 1021 j^ 1} 3 164 )* JJ 1 614-15 Tf It 2 1021 jj )♦ 4 165 tt J, 2 617, 618 3 971 J, »i 5 166 „ 3 604 ',', 17 pr. 1006 j» J? 6 166 „ tt 4 604, 615 tt tt 1 184 »* 7 154, 155 t* ti 5 620 If it 2 336 )» „ 8 149 „ tt 6 620 n it 3 335 „ 9 155 jy ,, 7 473 Ti }> 4 883-4 i» » 10 156 >» TJ 8 615, 618 tt ti 5 339-40 jj 11 154 JJ 8 pr. 166 it it 6 337 )» 12 152 tt „ 1 166, 437 it ti 7 340 jj 5 pr. 1006 „ 2 166 „ 18 pr. 1061 jj »» 1 150,153,155 tt tt 3 184 )} ij 1 1061 J, »> 2 154 tt »; 4 184 » n 2 1061 jj 3 241 tt I) 5 167 }f )> 3 1061 jj 6 pr. 131 132,451-2 tt » 6 159-60 »> n 4 1061 ») r> 1 131,132 IT 7 197 n ji 5 1061-2 „ IT 2 132 J1 9 pr. 248 n )t 6 1062, 1068 »» 3 264 tt „ 1 249 tS JJ 7 1062 n „ i 264 tt 10 pr. 979, 1022 JJ JJ 8 1062 *T „ 5 271 tt „ 1 1024 JJ JJ 9 1062, 1071 t) „ 6 1040-41 it j» 2 1022 JJ JJ 10 1063 1) » 7 436, 447 It 11 pr. 1023-4 JJ JJ 11 1063 )J 8 566, 615 it 1 1024 JJ tj 12 1063