/ \ THE INSTITUTES OP JUSTINIAN, AVITH THE NOVEL AS TO SUCCESSIONS. TRANSLATED BY WILLIAM GRAPEL, ESQ., M.A., OF LINCOLN'S INN, BABBISTER-AT-LAW, I'ROFESSOR OF ENGLISH LITERATURE, AND JUNIOR PROFESSOR OF LAW, IN THE PRESIDENCY COLLEGE, CALCUTTA. CAMBRIDGE: MACMILLAN & CO., LONDON: BELL AND DALDY, 186, FLEET STREET. 1855. CALCUTTA: r. CARBKRY. MILITARY ORPHAN f tnodl Annex K 50 PREFACE. OF those three legal compilations, the Code, the Pandects, and the Institutes, whereto Justinian gave the sanction of his name, the last alone admitted of anything approaching to harmony or systematic arrangement. The Code, with its sup- plement of Novels, was but a gathering together of Imperial Constitutions, from the day of Hadrian. The Pandects, or Digest, but an attempt to compress and place in manageable order, the best of the rulings of the ancient Jurists. The Code, or Collection of Imperial Constitutions, was begun A. D. 528, and received the Imperial confirmation on the 7th of April, A. D. 533. This first Code proving, however, to be most imperfect, a second one was called for ; and in November, A. D. 534, appeared that other compilation, which took the name of Code, with all authority of law, to the absolute suppression of the first. The Novels " Novellce Constitutiones" were New Constitutions put forth from time to time by Justi- nian in order to meet discovered failings in the settled Code. They were remedial measures, the IV PREFACE. Acts " to amend an Act," whereof, even now-a-days, collective wisdom wotteth something. The first bears date November, A. D. 535, just twelve months after the solemn promulgation of the amended Code ; the last belongs to November, A. D. 565, the very year and month when the law-loving Emperor died. The Digest, like the Code, was published with unlooked-for speed ; the Emperor gave ten years for the work, the compilers finished it in three. The Imperial Commission for its execution bore date December 15th, A. D. 530 ; the work received Imperial Sanction on the 30th of December, A. D. 533. The rapidity of execution may in some sort explain, if not excuse, the very easily discovered blots which mar it. In some nine thousand extracts, it gives the pith of what before, in more than twenty thousand volumes, was spread through three millions of lines. That Constitution which in December, A. D. 530, gave commission to Tribonian and his fellows to arrange the Pandects, spake also of the Emperor's will that another work should be prepared ; a work, wherein the whole body of the Roman Civil Law, as settled then, should be arranged and set forth for the uses of all students in the law. The work was entrusted to three learned men ; to Tribonian, " most magnificent, the master and ex-quaestor of Our Sacred Palace" ; to Theophylus, law-professor at Constantinople ; and to Dorotheus, law-professor PREFACE. at Beyrout. In the work several ancient treatises, now lost, were used ; but the chief guide whom the compilers followed was that Gaius, whose Book, called also " Institutes," was, in 1816, found so strangely by Niebuhr, as a palimpsest in the Cathedral book-stores at Yerona. Justinian's Insti- tutes for by his name they go, were sanctioned on the 21st November, A. D. 533 ; and received their final ratification as law, on the 30th December, A. D. 533, the same day from which the Digest was to take effect. The several parts of which mention has been made, to wit, the Code, the Novels, the Pandects, and the Institutes, form together that Corpus \ Juris Civilis " Body of Civil Law" which sup- plies us with almost all we know of the legal system of the Romans. Of the worth of that system, after all abatement made, it were not meet to argue here. To say nothing of the great Jurists who on the Continent have been so hearty in its praise, it is enough for an Englishman to think of the Roman Civil Law as that which moulded the Judgments of \ Stowell ; which was the ground-work of Holt's Rulings ; which gave their scientific clearness to the Decrees of Hardwicke; and which is the life- giving principle in that Commercial Law of England, wherewith the name of Mansfield is for ever linked. Few who have studied the Law Books of Justinian will look upon them with other than strange interest ; not alone that general interest which VI PREFACE. every thing of the nature of law possesses, as, to use Arnold's words, " the expression of the delibe- rate mind of the Supreme Government of society" ; but an interest quite special and peculiar, as the legal voice of that great State, with which, as Niebuhr says, the stories of all ancient peoples end, the stories of all modern ones begin. Of the translation here given of the Institutes, needs to say little ; written mainly for students unversed in the language which Tribonian used, its first great aim is clearness. Each Latin word, if technical, has been carefully given in a plain English equivalent ; and where it has been deemed advisable to give the original term, a literal rendering has been always added. The Novel 118, printed in the Appendix, is given, because of its very great importance ; not only does it wholly set aside the several rules of succes- sion in intestacy, as laid down in the Institutes ; but it has from the date of publication (A. D. 533) been, and still is, the law in all countries where the Roman law obtains ; in England, also, in cases where other rules are silent, its principles are even now upheld. PRESIDENCY COLLEGE, 1 July 1855. CONTENTS. BOOK I. Page. TITLE 1. OF LAW AND JUSTICE, 1 2. OF THE LAW OF NATURE; THE LAW OF NA- TIONS; AND THE CIVIL LAW, 2 3. OF THE RIGHTS OF PERSONS, 6 4. OF THE FKEE-BORN, 7 5. OF FREEDMEN, 8 6. OF DISABILITIES TO MANUMIT, 10 7- OF THE REPEAL OF THE LEX FUSIA CANINIA, 13 8. OF PERSONS INDEPENDENT, AND OF THOSE SUBJECT TO OTHERS, 14 9. OF PARENTAL AUTHORITY, 15 10. OF MARRIAGEj 16 11. OF ADOPTION, 20 12. OF THE DISSOLUTION OF THE PATERNAL AU- THORITY, 23 13. OF WARDSHIPS, 27 14. OF TUTORS APPOINTED BY TESTAMENT, ... 28 15. OF GUARDIANSHIP BY AFFINITY OF BLOOD, ... 30 16. OF SOCIAL DIMINUTION, 31 17. OF THE LEGAL GUARDIANSHIP OF PATRONS, 32 18. OF THE LEGAL GUARDIANSHIP OF PARENTS, 33 19. OF FIDUCIARY GUARDIANSHIP, 34 20. OF GUARDIANSHIP BY MAGISTERIAL APPOINT- MENT, 35 Vlil CONTENTS. Tage. TITLE 21. OF THE AUTHORITY OF GUARDIANS 37 ,, 22. OF THE EXPIRATION OF GUARDIANSHIP, ... 38 23. OF CURATORS 39 .. 24. OF THE SECURITY REQUIRED OF GUARDIANS AND CURATORS, 41 25. OF THE EXEMPTIONS OF GUARDIANS AND CU- RATORS 43 26. OF TUTORS AND CURATORS UNDER SUSPICION OF FRAUD, 47 BOOK II TITLE 1. OF THE CLASSIFICATION OF THINGS; AND THE ACQUISITION OF PROPERTY, 50 2. OF THINGS CORPOREAL AND INCORPOREAL, ... 65 3. OF SERVITUDES, 66 4. OF USUFRUCT, 67 5. OF USE AND HABITATION 69 6. OF TITLE BY PRESCRIPTION, c 71 7- OF DONATIONS 75 8. OF THE POWER TO ALIENATE 79 9. OF THE PERSONS BY WHOM PROPERTY MAY BE ACQUIRED 81 10. OF TESTAMENTS, 85 11. OF THE TESTAMENTS OF SOLDIERS,.. 89 12. OF THOSE WHO MAY NOT MAKE TESTAMENTS, 92 13. OF TIIK DISINHBRISON OF DESCENDANTS, ... 95 14. -Or THE INSTITUTION OF HEIRS, 99 ,, 15. OF VULGAR SUBSTITUTION 104 16. OF PUPILLARY SUBSTITUTION, 105 17- OF THE AVOIDANCE OF TESTAMENTS 108 ,, 18. OF UNNATURAL TESTAMENTS Ill 19. OF THE SEVERAL KINDS OF HEIRS, 114 20. OF LEGACIES, 118 21. -OF THE REVOCATION AND TRANSFER OF LE- GACIES 131 22. OF THE FALCIDIAN LAW, ib. 23. OF BEQUESTS IN TRUST, 134 CONTENTS. 1\ Page. TITLE 24. OF INDIVIDUAL THINGS BECIUEATHED IN TRUST, 1-11 25. OF CODICILS, 143 BOOK III. TITLE 1. OF INHERITANCES IN CASES OF INTESTACY,.. 145 2. OF THE SUCCESSION, BY LAW, OF AGNATES, ... 154 3. OF THE TERTULLIAN DECREE, 159 4. OF THE ORPHITIAN DECREE, ... 162 5. OF THE SUCCESSION OF COGNATES, 163 6. OF THE DEGREES OF RELATIONSHIP, 165 7- OF THE SUCCESSION OF FREEDMEN 169 8. OF THE ASSIGNMENT OF FREEDMEN, 1/3 9. O.F SUCCESSION BY THE PRAETOR'S GRANT, ... 1/4 10. OF THE ACaUISITION OF PROPERTY BY ABRO- GATION, 179 11. OF THE ASSIGNMENT FOR SUSTAINING EN- FRANCHISEMENTS, 180 12. OF ACQUISITIONS BY SALE OF GOODS TAKEN IN EXECUTION, 183 ,, 13. OF OBLIGATIONS, 184 14. OF OBLIGATIONS CONTRACTED BY THE THING, 185 15. OF OBLIGATIONS CONTRACTED BY WORDS, ... 188 ,, 16. OF JOINT VERBAL CONTRACTS, 191 17. OF STIPULATIONS WITH SLAVES, 192 18. OF THE SEVERAL KINDS OF STIPULATIONS,... 193 19. OF VOID STIPULATIONS, 194 20. OF SURETIES, 201 21. OF OBLIGATIONS CONTRACTED BY WRITING,... 203 ,, 22. OF OBLIGATIONS CONTRACTED BY CONSENT, .. 204 23. OF BARGAINS AND SALES, ib. 24. OF LETTING AND HIRING, 208 25. OF PARTNERSHIP, 211 26. OF MANDATE OR PROCURATION, 214 27. OF OBLIGATIONS FROM IMPROPER CONTRACTS, 217 28. OF PERSONS THROUGH WHOM OBLIGATIONS ARISE, 220 29. OF THE EXTINCTION OF OBLIGATIONS, ... 2'22 CONTENTS. BOOK IV. Page. TlTLR 1. OF OBLIGATIONS WHICH ARISE KKO.M WRONG, 2'25 2. OP ROBBKRY, 232 3. OF INJURY TO PROPERTY, 234 4. OF INJURY TO PKR80NS, 239 5. OF OBLIGATIONS WHICH ARISE FROM QUASI- WRONG, 243 6. OF ACTIONS 245 7- OF ACTIONS ON CONTRACTS BNTERED INTO WITH PERSONS UNDER POWER, 260 8. OP NOXAL ACTIONS, 265 9. OF NOXAL ACTIONS IN THE CASE OF BEASTS,... 268 10. OP REPRESENTATIVES IN ACTIONS 269 11. OF SECURITIES, 2/0 12. OF ACTIONS PERPETUAL AND TEMPORARY, ... 2/3 13. OF EXCEPTIONS, 2/4 ,. 14. OF REPLICATIONS, 273 15. OF INTERDICTS, 280 16. OF PENALTIES IMPOSED UPON RA8II LITIGANTS, 285 17. OF THE DUTY OF A JUDGE, 287 ., IS. OF PUBLIC PROSECUTIONS, 290 THE INSTITUTES OP JUSTINIAN. BOOK I. TITLE 1. OF LAW AND JUSTICE. JUSTICE is the constant and perpetual wish to give to every one his right. Section I. Jurisprudence is the knowledge of things, human and divine ; the exact discernment of what is just and unjust. Section II. These general terms being then explained, and being now about to enter on our exposition of the Law of the Roman People, it seems that this will be most advantage- ously delivered if we pursue, at first, a plain and easy method, and then go on to explain particular details with the utmost care and exactness. Otherwise, if at the very outset we over- load the mind of the student, while yet unpractised and not able to bear much, with a great number or variety of subjects, we shall cause one of two evils ; either, namely, we shall 2 THE INSTITUTES OF JUSTINIAN. [BOOK I. make him abandon his studies, or bring him, after great toil, and often after much lack of confidence (a fault which fre- quently leads youths astray), in the end to that point to which he might by an easier method have been sooner led with no great toil, and without any lack of confidence. Section III. The maxims of law are these ; to live honor- ably, not to hurt any man, and to give every one his due. ^"Section IV. This science has two distinct branches ; to wit, Public and Private. Public Law regards the constitution of the Commonwealth ; Private Law looks to the interests of individuals. Private Law, of which we have now to treat, consists of three elements ; being composed of maxims from the Law of Nature, the Law of Nations, and the Civil Law. TITLE 2. OF THE LAW OF NATURE ; THE LAW OF NATIONS ; AND THE CIVIL LAW. THE Law of Nature is that which Nature hath implanted in all living things. For this Law belongs not to man's race alone, but to every living thing, whether produced on earth, in air, or water. Hence comes that union of male and female which, in our species, we call Matrimony; hence, too, the begetting of children, and the bringing of them up. We see, indeed, that the rest of the animal creation are considered to possess a knowledge of this Law. TITLE 2.] OF THE LAW OF NATURE, &C. 8 Section I. Civil Law, again, is thus distinguished from the Law of Nations. All nations, which are under the govern- ance of laws and usages, avail themselves partly of their own particular laws, and partly of those which are common to all mankind. Now that Law which a people enacts for its own governance, is the special property of that State, and is called the Civil Law, as being the Law exclusively of that particular State. But that Law which natural reason hath laid down for all mankind, is guarded with equal jealous care by all peoples, and is called the Law of Nations, because all Nations avail themselves of it. And so the people of Rome are governed partly by their own peculiar laws, and partly by those which are common to all men. But of each of these Laws, and the distinctions between them, we will treat in their proper places. .Section II. Now Civil Law takes its name from the parti- cular State where it holds, as, for example, from Athens ; for a man would not go wrong in speaking of the laws of Solon, or of Draco, as the Civil Law of Athens. So too we speak of that law which the Roman people uses, as the Civil Law of the Romans ; or of the Quirites, as being used by Quirites ; for the Romans are called Quirites, after Quirinus. But when- ever we speak of " Civil Law" and do not add the name of any particular State, then we allude peculiarly to our own law ; just as when " THE poef is spoken of and no particular name is given, the great Homer is understood by the Greeks ; and by us Romans, Virgil. The Law of Nations, on the other hand, is common to all mankind ; for nations have established certain laws, as occasion and the emergencies of human life required. For wars arose, and in their train came captivity and slavery, both of which are contrary to the law of nature ; for by that law all men are originally born free. Besides, by this same Law of Nations almost all contracts Avere first introduced as, for example, purchases, sales 4 THE INSTITUTES OF JUSTINIAN. [BOOK I. leases, hirings, partnerships, bailments, loans, and others out of number. Section III. Our Law is composed of the written, and the unwritten ; just as among the Greeks some laws were in writ- ing, others not. Now the Written Law comprehends ; 1, Laws ; 2, Plebiscites ; 3, Decrees of the Senate ; 4, Acts of the Emperors; 5, Edicts of the Magistrates; and, 6, Answers of the Jurists. Section IV. A LAW is what the Roman People enacted at the recommendation of a Magistrate of senatorial rank ; as, for example, of a Consul. A PLEBISCITE is what the Roman Commons enacted at the recommendation of a Magistrate of the plebeian order ; as, for example, of a Tribune. Now the Commons differs from the People, of Rome, as does the species from its genus ; for under the term " people" are comprehended all the citizens, inclusive of patricians and senators. By the term " commons", however, are understood all citizens exclusive of patricians and senators. The Plebis- cites, however, after the passing of the Hortensian Law, began to have the same influence as the Laws them- selves. Section V. A DECREE OF THE SENATE is that which the Senate commands and ordains ; for when the Roman people was increased in such measure as to make it difficult to assemble them together for the enacting of laws, it seeiiK-tl but fair that the Senate should be consulted in the place of the whole people. Section VI. The ACT OF THE EMPEROR has also the force of law; for the people, by the Lex Rcgia which was enacted to confer on him his power, made over and granted to him their whole authority and power. Whatever, there- fore, the Emperor has enacted by Rescript, decreed on inquiry made before him, or ordained by edict, is unquestion- ably Law ; and these Acts are what are called Constitutions. TITLE 2.] OF THE LAW OF NATURE, &C. 5 Now of these some are evidently personal, and are not to be considered as precedents, since such was not the intention of the Emperor. For if he granted some indulgence to one man by reason of his deserts; or if he inflicted some punishment on another ; or to another granted some relief contrary to the common course of law, these acts do not extend beyond the particular individual. But other Constitutions, being general, are beyond all doubt binding on every one. Section VII. The EDICTS OF THE PRJETORS also have no small authority. These Edicts we are wont to call Honorary Law, because they who bear honours in the state, namely, the Magistrates, have given them their sanc- tion. The curule cediks also used, on certain occasions, to publish their Edicts; and these, too, become part of the Honorary Law. Section VIII. The ANSWERS OF THE JURISTS are the decisions and opinions of those who were authorized to settle the law. For in former days it was provided that there should be persons to give public interpretations of the laws ; and these were, by the Emperor, authorized to decide ques- tions of law, upon consultations. They were called Juris- consults ; and their decisions and opinions, when they were all unanimous, were of such authority, that the judge could not, according to the Constitution, decide contrary to them. Section IX. What long usage sanctioned became Law without being written ; for long prevailing customs, being sanctioned by the consent of those who use them, assume the Nature of Laws. Section X. The Civil Law seems to be not improperly divided into two kinds ; for its origin seems to have been in the customs of the two States, to wit of Athens and Lacedae- mon. For in these States it used to be so managed that the 6 THE INSTITUTES OP JUSTINIAN. [BOOK I. Lacedaemonians rather committed to memory what they ob- served as laws; while the Athenians observed those things which, being in writing, were included in the number of their laws. Section XL TH^T^^m^ Nafnrp which are observed equally by all Nations, being established by a Divine Provi- dence, remain for ever linn and immutable. But those Laws which each State has enacted for its o\vn Government, are wont to be often changed, either by the tacit consent of the people, or by some new Law which repeals the former. TITLE 3. OF THE RIGHTS OF PERSONS. ALL Law which prevails among us has reference to persons, to things, or to actions. And first let us treat of persons ; for it is of little purpose to know the Law if we do not know the persons for whose sake the Law was made. The first chief division of persons, with reference to their rights, is this : that all men are either free or slaves. Section I. Freedom (whence men are said to be free) is the natural power of doing what each man pleases, unless he be restrained by force or law. Section II. Slavery is an institution of the Law of Nations by which one man is made the property of another, in opposi- tion to natural right TITLE 4.] OF THE FREE-BORN. 7 Section III. Slaves are called servi (from the verb servare, to preserve), because generals are wont to sell their captives, and so to preserve, and not destroy them. Slaves are also called mancipia (from a manu capere, to take with the hand) because they are taken from the enemy with the strong hand. Section IV. Slaves are either born such, or become so. They are born such when their mother is a slave ; they become so either by the Law of Nations, that is, by captivity ; or by the Civil law, as when a free person, above twenty years of age, permits himself to be sold, in order that he may share in the price given for him. Section V. In the condition of slaves there is no distinc- tion ; but among those who are free there are many ; for they are either free-born, or have been set free. TITLE 4. OF THE FREE-BORN. THE term ingenuus denotes one who at the moment of birth is free, by being born in lawful wedlock, of parents who have been either both born free, or both set free ; or of whom one has been born, and the other set free. And when the mother is free and the father a slave, the child is never- theless free-born ; just as when the mother is free, and it be uncertain who the father is, for then he had no legal father. And it is enough if the mother be free at the moment of birth, 8 THE INSTITUTES OP JUSTINIAN. [BOOK I. albeit she were a slave when she conceived. Contrariwise if, when she conceived, she were a freewoinan, and after- wards, when reduced to slavery, have borne her child, still such child is held to be free-born ; for the misfortune of the mother ought not to prejudice her child unborn. Hence this question has been mooted ; if a female slave with child be set free, but afterwards, and before the child is born, become once more a slave, is the child when born, free or bond ? Marcellus holds that it is born free ; for, says he, it is enough for the child unborn that the mother have been free at any time between conception and delivery : and this opinion is the true one. Section I. When a man has been free-born, it will not injure him to have been in slavery, and subsequently enfran- chised; for it has over and above again been settled that enfranchisement does not prejudice the rights of birth. TITLE 5. OF FREEDMEN. FREEDMEN are they who have been manumitted from just slavery. Manumission is the process of freeing from the " hand" (a manu) ; for so long as any one is in slavery he is subject to the " hand" and power of another ; but when manumitted he is free from this power. This manumission had its rise in the Law of Nations ; for by the Law of Nature all men were born free ; and manumission was not heard of, TITLE 5.] OF FREEDMEN. 9 since slavery was unknown. But when slavery, under sanc- tion of the Law of Nations, encroached on liberty, the boon of manumission followed. And whereas at first all were known by the common name of " men," there began, by the Law of Nations, to be three kinds of men, to wit, freemen, in opposition to these, slaves, and thirdly, freedmen, who had ceased to be slaves. Section I. Manumission is effected in various ways ; either ( 1 ) in the face of the church, according to the Imperial Con- stitutions; or (2) by the vindicta ; or (3) in the presence of friends ; or (4) by deed ; or (5) by testament, or any other expression of a man's last will. Besides a slave may gain his freedom in many other ways ; some of which were introduced by the Constitutions of former Emperors, and others by our own. Section II. Slaves may, further, be manumitted by their masters at any time ; even the Magistrate in passing along ; as when a Praetor, a Governor of a province, or a Proconsul is on his way to the baths, or to the theatre. Section III. The social standing of freedmen was formerly of three kinds. For those who were manumitted obtained sometimes a perfect and complete liberty, and became Roman Citizens : sometimes a liberty less perfect, and became Latins, according to the Lex Julia Norbana ; and sometimes a liberty still more incomplete, and were called Dedititii (L e. " sur- rendered at discretion''^ under the Lex ^Elia Sentia. But this lowest class, of the Dedititii, has already for a very long time disappeared, and the name of Latins become less frequent. And, therefore, our benevolence urging us to complete every thing and bring it to a better condition,has prompted us by two Constitutions to reform this, and to re-establish the ancient usage : for in the very earliest infancy of the State, there was but one simple liberty ; that, namely, which he who conferred manumission on his slave was in possession of; save only that he who was B 10 THE INSTITUTES OF JUSTINIAN. [BOOK I. manumitted became only a freedman, while his manumittor was free-born, or ingenuus. The class, then, of Dedititii we have abolished by a Constitution published among our deci- sions ; by which, at the instance of Tribonian, that eminent man, our Quaestor, we have settled all disputes arising out of the ancient law. We have further, at the suggestion of the same Quaestor, altered the condition of the Latini Juniani, and corrected all matters with reference to them, by another Con- stitution, which shines forth among our other imperial ordi- nances. We, by our free gift, have made all freedmen Citi- zens of Rome ; and this without regard to the age of the slave set free, to the interest of him who enfranchises him, or to any special form of manumission, as was anciently observed. We have also introduced many new methods by which slaves may gain their liberty, and with it the rights of Roman Citi- zens ; the only kind of liberty which can be now conferred. TITLE 6. OF DISABILITIES TO MANUMIT. IT is not, however, in the power of every master who wishes it to grant a manumission. He who seeks to do so, with intent to defraud his creditors, effects nothing ; for the Lex Sentia restrains the liberty so granted. Section J. A master, however, who is insolvent may, by his testament, institute a slave as his heir, and at the same time give him his liberty ; so that the slave becoming free may be his sole and necessary heir. Provided always TITLE 6] OF DISABILITIES TO MANUMIT. 11 there is no other heir under the same testament; a thing which may occur, either because no person was instituted heir, or because he who was instituted does, from some cause or other, not become heir. Now this privilege was established by the same Lex JElia Sentia, and on good grounds : for it was very essential to see to it, that men in needy circum- stances, who could get no other heir, might get a slave as necessary heir, to satisfy creditors ; or if he were unable to do so, that the creditors might sell the hereditary effects of the master, in the name of the slave ; so that no disgrace might attach to the deceased. Section II. The Law is similar when a slave is instituted heir, although no mention of his freedom is made in the testa- ment ; for our Constitution with reference not only to masters who are insolvent, but generally by a fresh act of our huma- nity, decides that the mere institution of a slave as heir implies the grant of liberty. Since it is not very probable that a testator, although he has omitted the express gift of freedom in his testament, should have wished that the person whom he has chosen as his heir, should remain a slave, and that he himself should be without an heir. Section III. A person may be said to manumit in fraud of creditors, who is either insolvent, at the time when he grants the manumission ; or who becomes so by the act of manumission itself. The prevailing opinion, however, seems to be, that unless the manumittor had an intent to defraud, the gift of liberty may not be impeached, even though his goods be insufficient for the payment of his creditors: for men frequently hope that they are in better circumstances than they really are. So then, we understand the gift of liberty to be then only invalidated when creditors are doubly defrauded ; that is to say, both by the intention of the manu- mittor, and in reality ; namely, by his goods being of insuffi- cient value to answer their demands. 12 THE INSTITUTES OF JUSTINIAN. [BOOK I. Section IV. By the before-mentioned Lex j&lia Sentia, a master under twenty years of age, cannot manumit save by the vindicta, and on some just ground assigned, which has been approved by a council appointed for the purpose. Section V. Now the following are valid reasons for manu- mission when the minor alleges that the person to be manu- mitted is his father or mother, his son or daughter, his brother or sister, his teacher, his nurse, his preceptor, his foster-child or his foster-brother ; or when he says, that he wishes to manumit his slave in order to make him his proctor ; or his bondwoman, with intent to marry her ; provided always he do marry her within six months, unless some good reason hinder him. And provided also that he who is manumitted for the purpose of being made a proctor, be not so manumitted at less than seventeen years of age. Section VI. A ground of manumission, however, being once sanctioned, cannot afterwards be disallowed ; whether the reasons on which it is based be true or false. Section VII. Since, therefore, by the Lex JElia Sentia, certain limits were assigned to all under the age of twenty with reference to manumission, the result was that any per- son who had completed his fourteenth year might make a testament, institute an heir, and bequeath legacies ; and yet if less than twenty he could not enfranchise a slave. This, now, was unbearable ; that the man to whom was given the power of disposing of all his effects by will, should still not be allowed to give his freedom to a single slave. \V hy should we not give him the like power of disposing of his slaves as of all his other effects, by testament, precisely as he likes ; and also of giving them their liberty ? But since liberty is beyond all price, and since the ancient laws forbade any person under twenty to give it to a slave ; we, TITLE 7] OF THE REPEAL OP THE LEX FUSIA CANINIA. 13 therefore, making choice of a middle course, permit a person under twenty years of age to enfranchise his slaves by testa- ment, only if he have completed his seventeenth, and entered upon his eighteenth year. For since by ancient usage, per- sons at eighteen were permitted to plead for others, why should not the soundness of their judgment be considered suf- ficient to enable them to bestow the gift of liberty on their own slaves ? TITLE 7. OF THE REPEAL OF THE LEX FUSIA CANINIA. BY the Lex Fusia Ganinia a certain limit was assigned to the number of slaves who might be enfranchised by testa- ment ; this law we have deemed it right to repeal, as being odious, and throwing obstacles in the way of liberty. It seem- ed, indeed, unreasonable enough to permit men in their life- time, if no special hindrance existed, to enfranchise a whole household of slaves ; and to deprive the dying of the privilege of doing the same thing by testament. 14 THE INSTITUTES OP JUSTINIAN. [BOOK. I. TITLE 8. OF PERSONS INDEPENDENT, AND OF THOSE SUB- JECT TO OTHERS. WE come now to another division, relative to the rights of persons ; for some are independent and some are subject to the power of others. Of those, again, who are subject to the power of others, some are in the power of parents, others in that of masters. Let us, then, first inquire as to those who are subject to others : for when we have ascertained who these are, we shall, at the same tune, discover who are in- dependent And first let us inquire as to those who are in the power of masters. Section I. Slaves are in the power of their masters. This power is derived from the Law of Nations; for among all nations alike it is observable that masters have had the power of life and death over their slaves ; and that whatso- ever is acquired by the slave is acquired for the master. Section II. But at the present time, no subjects of the Empire are permitted, save for some reason recognized by the laws, to inflict any extraordinary punishment upon their slaves. For according to a Constitution of the Emperor Antoninus, he who, without due reason, slays his own slave, is to be punished with no less rigour than if he had slain the slave of another. Excessive severity on the part of mas- ters is also restrained by another Constitution of the same Emperor. For, when consulted by certain Governors of provinces concerning those slaves who take sanctuary either in temples, or at the statues of the Emperors, he ordained that if the severity of the masters should appear excessive, they TITLE 9.] ON PARENTAL AUTHORITY. 15 should be compelled to make sale of their slavQS on equitable terms, so that the masters might receive the full value of such slaves. And this decision is a just one ; for it greatly concerns the public weal, that no one be permitted to misuse even his own property. The exact words of this Rescript so sent by Antoninus to ^Elius Marcianus are as follows : " The power of masters over their~slaves^ought by no means to be wrongfully diminished. But it is for the interest of masters themselves that relief against cruelty, denial of sus- tenance, or any other insufferable wrong, should not be refused to those who crave it on just grounds. Take cognizance, therefore, of the complaints of those slaves, belonging to the family of Julius Sabinus, who have fled for sanctuary to the statue of the Emperor ; and if you are assured that they have been over-harshly treated, or wantonly disgraced, order them to be sold, so that they may not again fall into the power of their former master ; and, if Sabinus seek to evade this, my Constitution, let him know that I shall severely visit his contumacy." TITLE 9. OF PARENTAL AUTHORITY. OUR children, begotten in lawful wedlock, are in our power. Section I. Marriage, or Matrimony, is a binding together of a man and woman, obliging to an indivisible union during life. Section II. The right of power, however, which we have over our childen is peculiar to citizens of Rome ; for there are 16 THE INSTITUTES OF JUSTINIAN. [BOOK I. no other nations which have the same power over their children, as we have over ours. Section III. The issue of yourself and your lawful wife, is in your power. So also is the issue of your son and his wife, to wit, your grand-son, or grand-daughter ; the like may be said of your great-grand-children ; and so of all your other descendants. But the issue of your daughter is not in your power, but in that of its own father. TITLE 10. OF MARRIAGE. CITIZENS of Rome contract lawful matrimony when they unite according to the precepts of the law ; the males having attained the age of puberty, and the females a marriageable age. And this whether the males are fathers or sons of a family ; but, if the latter, they must first have the consent of the parents under whose power they are. For both natural reason and the law convinces us that this consent of parents should precede marriage. Hence the question has been mooted as to whether the son of a madman could marry, or his daughter be given in marriage. And as opinions were divided as to the son, we gave it as our decision, that as the daughter of a madman might marry, so also might the son, without the intervention of the father ; provided always such marriage were in accordance with the rules set forth in our Constitution. Section I. Men may not marry every woman without TITLE 10.] OF MARRIAGE. 17 distinction ; for there are some, with whom marriage is for- bidden. Marriage, for example, cannot be contracted be- tween persons standing to one another in the relation of either ascendant or descendant ; as between a father and daughter, a grand-father and his grand-daughter, a mother and her son, a grand-mother and her grand-son ; and so on continually. And if such persons unite together, they are said to have con- tracted an infamous and incestuous marriage. And so much is this the case, that even though they hold the place of ascen- dants and descendants in virtue of adoption only, still they cannot marry ; nay more, even when the adoption is dissolved, the same prohibition remains in force. Her, therefore, whom adoption has made your daughter or grand-daughter, cannot become your wife ; even though you may have emancipated her, and loosed the tie of adoption. Section II. Between collateral relations, somewhat similar prohibitions exist with reference to matrimony; but the restrictions are not so extensive. A brother and sister are, naturally, forbidden to marry ; and this whether they are the children of the same father and mother, or of one of the two only. And if a woman become your sister by adoption, so long as such adoption subsists, a marriage between you and her is certainly invalid ; but when the adoption is put an end to, by emancipation, you may take her to wife ; and so also if you are yourself emancipated, there will be no bar to your marriage. Hence it is manifest, that if a man would adopt his son-in-law, he ought first to emancipate his daughter : and if he would adopt his daughter-in-law he ought first to emancipate his son. Section III. A man may not marry a brother's or a sister's daughter ; nor their grand-daughter, although she is in the fourth degree. For when it is illegal to marry the daughter of a person, it is illegal also to marry the grand-daughter. But it seems not that there is any impediment to marrying the c 18 THE INSTITUTES OF JUSTINIAN. [BOOK I. daughter of a woman, whom your father has adopted : for she is of kin to you by no law, whether civil or natural. Section IV. The children of two brothers, or of two sisters, or of a brother and sister may intermarry. Section V. So, further, a man may not marry his aunt on the father's side, even though she be so only by adoption : nor his aunt on the mother's side ; for they both are looked on in the light of ascendants. For the like reason, a man cannot contract marriage with his great-aunt either on the father's side, or the mother's. Section VI. There are certain other marriages from which we must abstain from regard to " affinity," or the ties created by marriage : for example, a man may not marry a wife's daughter, or a son's wife, for they are both in the place of daughters to him. And this rule must be understood to refer to those who have ever been our step-daughters, or daughters- in-law ; for if a woman be still your daughter-in-law, that is, if she be still wedded to your son, you cannot marry her for another reason, namely, that she cannot be the wife of two persons at the same time. So also if your step-daughter be still your step-daughter, that is, if her mother be still wedded to you, you cannot marry her, because a man may not have two wives at the same time. Section VII. Again, a man is forbidden to marry his wife's mother, and his father's wife, because they are in the place of mothers to him. And this prohibition operates when the affinity is dissolved ; for if the step-mother be still your step- mother, that is if she be still married to your father, she is forbidden by the common rule of law to marry you, for the same woman cannot have two husbands at the same time. So also if your wife's mother be still your wife's mother ; that is, if her daughter be actually your wife, your marriage with her is forbidden, because you cannot have two wives at the same time. TITLE 10.] OF MARRIAGE. 19 Section VIIL The son of a husband by a former wife, and the daughter of a wife by a. former husband; and the daugh- ter of a husband by a former wife, and son of a wife by a former husband, may lawfully contract marriage ; even though they have a brother or sister born of the second marriage. Section IX. If your wife, after divorce, have a daughter by a second husband, such daughter is not your step-daugh- ter : Julian, however, says that we ought to abstain from such nuptials : for your son's betrothed wife is not your daughter- in-law ; nor your betrothed wife, your son's mother-in-law ; still they who hold themselves aloof from such unions act with greater propriety, and more in accordance with law. Section X. It is certain that the relationship of slaves is an impediment to their marriage, even if a father and daughter, or a brother and sister have been enfranchised. Section XL There are other persons too, who are forbid- den, for diverse causes, to contract marriage ; all which we have caused to be set out at length in the books of the Digests, or Pandects, collected from the ancient law. Section XII. If, hi contempt of the rules which we have Iiere laid down, any persons venture to unite themselves, there is then, in reality, no husband, no wife, no nuptials, no join- ture. They, also, who are the offspring of such union, shall not be under the power of the father ; but, so far as regards the father's power, are in the position of children whom a prostitute has borne, who are looked upon as having no father, because it is uncertain who he is ; they are therefore called spurious (Latin, spurii), either from a Greek word (nropa^v " at hazard", or as being sine patre " without a father". Hence it follows, that after the dissolution of any such connec- tion, there can be no legal claim for the restitution of either jointure, or gift in consideration of marriage. They, also, who contract such prohibited nuptials are liable to other penalties, which are fully set forth in our Imperial Constitutions. 20 THE INSTITUTES OF JUSTINIAN. [BOOK I. Section XIII. At times it happens, that children who at the time of birth were not under the parents' power, are after- wards brought under it So, the natural son who is admitted into the order of the Curiales, and may be chosen Decurion, becomes subject to his father's power. The son, also, of a free- woman, with whom marriage is prohibited by no law, but with whom the father had connection only, will become subject to the father's power, so soon as marriage instruments are drawn up, in accordance with the provisions of our Con- stitution. The which Constitution confers the same benefits on those children who may afterwards spring from the same marriage. TITLE 11. OF ADOPTION. NOT only, however, are our legitimate natural children in our power, as we have said ; but so also are those whom we adopt Section I. Adoption takes place in two ways : either by Imperial Rescript, or by the authority of the Magistrate. The Imperial Rescript empowers us to adopt persons whether male or female, who are independent (sui juris,) and this species of adoption is called " arrogation." The authority of the Magistrate empowers us to adopt persons, whether male or female, who are actually under the power of parents whether in the first degree, as sons and daughters ; or in an inferior degree, as grand-children, and great-grand-children. Section II. But at present, by our Constitution, when the TITLE 11.] OF ADOPTION. 21 son of a family is, by his natural father, given in adoption to a stranger, the right of paternal authority in the natural father is by no means dissolved, nor does any right pass to the adoptive father, nor is the adopted son in his power, although such son is by us allowed the right of succession to his adoptive father, should he die intestate. But if a natural father should give his son in adoption, not to a stranger, but to the son's maternal grand-father, or if the natural father have been himself emancipated, and give the son in adoption to the son's paternal or natural grand-father, or great-grand-father, in this case, as the natural and adoptive rights concur in the same person, the power of the adoptive father, knit by natural and streng- thened by adoptive ties, continues firm and unshaken ; so that the adopted son is not only in the family, but in the power also of such adoptive father. Section III. When any one, not arrived at puberty, receives by the Imperial Rescript, that species of adoption called arrogation, such arrogation is granted only after the case has been inquired into : it is asked whether the motive be honorable and expedient for the pupil, and also on what conditions the arrogation is to be made. The arrogator en- ters into recognizances before a public officer, that is to say, a notary, to restore all the property of the pupil, if he should die before the age of puberty, to those who would have suc- ceeded him if no arrogation had taken place. Nor, again, can the arrogator emancipate the person arrogated, unless, on examination held, it should appear that the latter merits emancipation ; and, even then, he is bound to restore all his property to him. Also, if a father on his death-bed have dis- inherited an arrogated son; or, during his lifetime, have without just cause emancipated him, the law bids him leave the fourth part of his goods to the arrogated son ; and this over and above what the son brought to his father at the time of arrogation, and what he acquired for him afterwards. 22 THE INSTITUTES OF JUSTINIAN. [BOOK I. Section IV. A younger cannot adopt an elder ; for adop- tion imitates nature, and it is utterly contrary to nature for a son to be older than bis father. Whoso, therefore, wishes to adopt, or arrogate a son, should be his senior by the time of puberty complete, that is, by eighteen years. Section V. A person may adopt a grand-son or grand-daugh- ter, great-grandson or great-grand-daughter, or any in more distant degree ; and this even though he have no son. Section VI. A person also may adopt the son of another as his grand-son ; and the grand-son of another as his son. Section VII. If a person adopt a grand-son, and wish to make him son either of a son whom he has himself before adopted, or of a natural son, who is yet under his power, the consent of such son ought first to be obtained, to the end that a next heir (suus hares) be not forced upon him against his will. But if, on the other hand, the grand-father give away [in adoption] the son of his son by adoption, the consent of the son is not necessary. Section VIII. He who is either adopted or arrogated is assimilated, in very many points, to a son born in lawful wedlock. Therefore, if any one adopts another, whether by Imperial Rescript, or before a Praetor, or before the Governor of a Province, that other, provided he be not a stranger, may be given in adoption to another. Section IX. It is also observed as a rule common to both kinds of adoption, that persons incapable of procreating, as for instance impotent persons, may adopt ; but eunuchs may not. Section X. Women also cannot adopt ; for they have not even their natural children in their own power. But by the indulgence of the Emperor, they are permitted, as a solace for the loss of their own children, to adopt others. Section XL It is peculiar to adoption by Imperial Rescript that, if a person who has children in his own power, should TITLE 12.] OF DISSOLUTION OF PATERNAL AUTHORITY. 23 give himself in arrogation, not only does he submit himself to the power of the arrogator, but his children also are in the arrogator's power ; just as though they were his grand-children. Wherefore it was that Augustus did not adopt Tiberius, till Tiberius had first adopted Germanicus : so that, so soon as the adoption was made, Germanicus became the grand-son of Augustus. Section XII. The lawyers of old approved of Cato's writ- ten opinion, that slaves, when adopted by their masters, are, in virtue of such adoption, enfranchised. So also we, in one of our Constitutions, have enacted, that such slave as shall by his master, with due solemnities before the Magistrate, be named his son, shall thereby be free ; although this does not suffice to give him the rights of a son. TITLE 12. OF THE DISSOLUTION OF THE PATERNAL AUTHORITY. LET us now inquire by what methods persons who are in the power of others, can be freed from that power. And, first, how slaves are freed from the power of their masters may be fully understood from what we have before said with reference to their manumission. Next, as for those who are in the power of a parent, they become independent at his death ; but this rule admits of a distinction. For when a father dies, his sons and daughters do clearly become independent; but when a grand-father dies, his grand-children do not of necessity become independent, but only if on the grand-father's death 24 THE INSTITUTES OF JUSTINIAN. [BOOK I. they do not fall under the power of their own father. If, therefore, when the grand-father dies, their father be still alive, and was himself in the power of the grand-father, the grand- children become subject to the power of their father. But if, when the grand-father dies, the father be already dead, or have been emancipated from the power of the grand-father, the children, in such case, as they cannot fall under the power of their father, become independent. Section I. If a person, convicted of some crime, be sentenced to transportation (or deportation) to some prescribed spot, he loses the rights of citizenship ; it follows, that the children of a person thus deprived of the rights of Roman citizenship cease to be under his power, precisely as if he were naturally dead. For like reasons, if a son suffer transportation, he ceases to be under the power of his father. But if, thanks to the Empe- ror's clemency, transported criminals are restored to all their former rights, they at once resume their former social standing. Section II. A father, however, who is merely banished by relegation, (t. e. confined to some certain spot,) still retains his children in his power. Sons, also, who are relegated, still remain in the power of their father. Section III. When a man is by judicial decree pronounced " a Slave of punishment," he ceases to have his sons in his power. " Slaves of punishment" are those who are condemned to work in the mines, or to be exposed to wild beasts. Section IV. A son, though he become a soldier, a senator, or a consul, still remains in the power of his father ; for from this neither military service, nor consular dignity can free him. But according to our Constitution, that special and supreme dignity of the Patriciate, conferred by the Imperial Diploma, does, immediately upon the grant, free the son from the power of his father. For it were absurd to allow that a father should, by means of emancipation, be able to release his son from the tie of his authority, and that the Imperial Majesty TITLE 12.] OF DISSOLUTION OF PATERNAL AUTHORITY. 25 should be unable to free from the power of another, him whom hath chosen to be a father of the State. Section V. If a parent be taken prisoner by the enemy, although he becomes their slave, yet his paternal authority is only in suspense, by reason of the privilege called jus postliminii or " right of return" ; for captives of war, on their return, resume all their former rights. Therefore, on his return, the father will have his children in his power; for that legal fiction, the postliminium or " right of return" presumes the captive never to have been absent from the State. But, if a prisoner die in captivity the son is held to have become independent from the time when his father was taken prisoner. If a son, also, or grand-son be taken prisoner by the enemy, by reason of the aforesaid " right of return," the power of the parent is said to be held in suspense. The expression postli- minium } is derived from post "back," and limen a "threshold." Whence we say of him, who, having been taken prisoner by the enemy, has returned into our territory, that he has come back thanks to the postliminium. For as the threshold forms, as it were, the boundary of a house, so the ancients called the boundary of an Empire, threshold " limen." From this, also, comes the word limes, meaning boundary, limit. Thence comes, also, the word postliminium, because the prisoner has returned to the same boundaries, or limits, from which he had been lost. The prisoner of war, also, who is re-taken on the defeat of the enemy, is said to return by virtue of this same postliminium. Section VI. Furthermore, children cease, by emancipation, to be under the power of their parents. Now emancipation was formerly effected either in accordance with the ancient law by fictitious sales and accompanying manumissions, or by the Imperial Rescript. But our great care has,' by a special Constitution, reformed this matter; so that, the ancient fiction being put an end to, parents may go at D 26 THE INSTITUTES OF JUSTINIAN. [BOOK I. once before the proper judge, or Magistrate, and free from their authority their sons and daughters, their grand-children, or any other of their descendants. And when this is done, the parent has, according to the Praetorian edict, the same right over the goods of those descendants whom he emancipates, as has the patron over the goods of his freedinan. Besides, if the descendants so emancipated be within the age of puberty, the parent obtains, by reason of the emancipation, the right of wardship over them. Section VII. We must also notice, that it is at the free option of a man who has in his power a son, and by that son, a grand-son or grand-daughter, to emancipate the son, and retain the grand-son or grand-daughter in his power. Or, on the other hand, to emancipate the grand-son or grand- daughter, and retain the son in his power ; or, if he will, to make all independent The like may be understood as alleged of a great-grand-son, or a great-grand-daughter. Section VIIL Also, if a father have a son in his power, and if lie, in accordance with our Constitutions, to this end enacted, give such son in adoption to the son's own grand- father, or great-grand-father; that is if, in a formal act, he declare his intention before a competent judge, in the presence, and without contradiction on the part of the person adopted, and in the presence also of him who adopts, in such case the power of natural father is at an end ; but it, by this method, passes over to the adoptive father ; in whose person, as we have before observed, adoption has its fullest extent. Section IX. It is, also, important to know that if your son's wife become pregnant, and if during such pregnancy you either emancipate your son, or give him in adoption, the child whom she bears, will, notwithstanding, be born in your power : but if conception take place after the emancipation or adoption, he will, when born, be subject either to his emanci- pated father or adoptive grand-father. TITLE 13.] OF WARDSHIPS. 27 Section X. Children, whether natural or adoptive, have scarcely any means of compelling parents to free them from their power. TITLE 13. OF WARDSHIPS. LET us now proceed to another division of persons. Of those who are not in the power of their parents, some are under a tutor, some under a curator, and some are not subject to either. Let us inquire, then, as to those who are under a tutor, or a curator; for so shall we clearly make out those who are subject to neither. And first, let us treat of those who are under a tutor. Section I. Tutelage, as Servius has defined it, is an autho- rity and power, given and permitted by the Civil Law, exer- cised over a free person who, by reason of his tender age, is unable to protect himself. Section II. Tutors are they who possess this authority and power, and they take their name from their office : for they are called tutors, as being protectors (luitores) and defenders, just as they who look after the sacred edifices are called aditui. Section III. Parents are permitted to assign tutors by testament to such of their children as have not attained the age of puberty and are under their power: and this privilege extends alike to sons and daughters. But grand-fathers can only give tutors to their grand-children when these cannot fall 28 THE INSTITUTES OF JUSTINIAN. [BOOK I. under the power of their father, on the death of the grand- father. So then, if at the time of your death your son be in your power, your grand-children by that son cannot have a tutor appointed by your testament, although they were in your power ; and this because, when you are dead, they will be subject to the power of their own father. Section IV. As in many other respects, so also in this, posthumous children are considered as born in their father's lifetime; tutors, therefore, may by a parent's testament be given to posthumous children, as well as to those already born : provided always, that such posthumous children, if they had been born in their father's lifetime, would have been his proper heirs, and under his power. Section V. If a father, by his testament, give a tutor to his emancipated son, the appointment must have the ratifi- cation of the Magistrate ; but that without further inquiry. TITLE 14. OF TUTORS APPOINTED BY TESTAMENT. NOT only the father of a family, but the son also, may be appointed tutor by testament Section I. A man may by testament appoint his own slave to be tutor ; if, at the same tune, he give him his liberty. But it must be remarked that if such slave be appointed tutor, without the express gift of liberty, he is still held to receive by implication an immediate emancipation ; and can thus legally become a tutor. But if, however, he is appointed TITLE 14.] OF TUTOKS APPOINTED BY TESTAMENT. 29 by mistake, from the testator imagining him to be already free, the appointment would be invalid. The absolute appoint- ment of the slave belonging to another person as tutor is void : but if the appointment be made on the condition of the person appointed obtaining his freedom, then it becomes valid. To appoint one's own slave, with the like condition as to obtain- ing his liberty, is an invalid appointment. Section II. If an insane person, or one under twenty-five years of age, be appointed tutor, the one may begin to act when he comes to his right mind, and the other when he has completed his twenty-fifth year. Section III. There can be no doubt but that a testamen- tary tutor may be appointed either to a fixed time, or from a fixed time, or on certain conditions, or until the institution of an heir. Section IV. A tutor cannot be appointed for a special thing or business ; for it is to a person, and not for a business or thing, that a tutor is appointed. Section V. If one nominate a tutor generally to his sons or daughters, he is held to nominate him also to his posthumous issue; for, under the name of son or daughter, a pos- thumous son or daughter is included. But, it may be asked, if there be grand-children, are tutors given to them also under an appointment to sons ? Our answer is, that grand- children are included under an appointment to children, but not under one to sons; for the words son and grand-son differ widely in their signification. If, however, the testator's appointment of a tutor be to his posthumous descendants, then evidently not only his posthumous sons but all his other children, sons or grand-sons, are included. 30 THE INSTITUTES OF JUSTINIAN. [BOOK I. TITLE 15. OF GUARDIANSHIP BY AFFINITY OF BLOOD. To those who have no tutor appointed by testament, theAgnali (relatives in the male line), are by the Law of the Twelve Tables appointed as tutors ; and such are then called " legal tutors." Section I. Agnati are those who are related to each other by males ; that is, such as are related through the father, as a brother by the same father, or the son of a brother, or the son of such a son. But those who are related through females are said not to be Agnati, but only Cognati, by reason of their natural relationship. Thus, the son of your father's sister is related to you not by agnation, but by cognation, and you also are in like manner, namely by cognation, related to him ; and this, because children follow the family of their father, and not that of their mother. Section II. The Law of the Twelve Tables, when it calls upon the Agnati t in case of intestacy, to act as tutors, refers not only to the case of one who might have appointed a tutor, but dies without the execution of any testament at all ; but to that, also, of one who has died intestate only in so far as regards the appointment of a tutor ; a case which may occur when the tutor named in the testament, dies during the lifetime of the testator. Section III. The right of agnation is generally taken away by every diminution, or charge of civil standing ; for agnation is a gift of the civil law. But the right of cognation is not lost by every diminution : because civil policy may, indeed, extinguish civil rights, but it can not deal in the like manner with natural rights. TITLE 16.] OF SOCIAL DIMINUTION. 31 TITLE 16. OF SOCIAL DIMINUTION. SOCIAL Diminution (capitis diminutio) is the change of a man's social standing (status], and may be effected in three ways : for it is either the greater diminution, or the less (called also the middle), or the least. Section L The greater diminution is, when a man loses both his citizenship and his liberty. Such is the case of those who, by a most severe sentence, are pronounced the " Slaves of punishment ;" such also of freed-men, who are condemned to slavery for ingratitude towards their patrons; and such, too, of those who suffer themselves to be sold, in order to become sharers in the sum obtained. Section II. The less, or middle diminution is, when a man loses his citizenship, but retains his liberty. Such is the case of one who suffers the interdiction of fire and water, or who is transported to some prescribed spot. Section III. The least diminution is, when a man's social standing is changed, but without forfeiture of either citizenship, or liberty. Such is the case of those who, being independent, become subject, by adoption or arrogation, to the power of another ; or when the son of a family hath been emancipated by his father. Section IV A slave, however, who is manumitted does not thereby suffer diminution ; because, before such manumission, he had no social standing, or civil capacity. Section V.~ They whose dignity, rather than their social standing is changed, suffer no diminution ; so they, who are removed from the senatorial dignity, do not suffer diminution. 32 THE INSTITUTES OP JUSTINIAN. [BOOK I. Section VI. What was said, in the preceding title, as to the right of cognation remaining in spite of diminution, has reference only to the occurrence of the least diminution ; in such case the cognation does subsist For by the greater diminution, as, for example, if a cognate person become a slave, the right of cognation is destroyed utterly ; even so as not to be recovered by manumission. The right of cognation, also, is lost by the less, or middle diminution, as when one is transported to any fixed spot. Section VII. Although the right of tutelage, belongs to the agnati, still it does not belong to all in common, but to those only who are in the nearest degree. If, however, there be seve- ral in the same degree of relationship it belongs to them all : for example, if there be several brothers, as they are all equal iu degree, all of them are equally called upon to act as tutor. TITLE 17. OF THE LEGAL GUARDIANSHIP OF PATRONS. BY the afore-cited law of the Twelve Tables, the tutelage of freed-men and freed-women belongs to their patrons, and to the children of such patrons. And this is called a " legal tute- lage," not that this particular law has any special clause on the subject, but because it has been as firmly settled, by inter- pretation, as if it had been introduced by express words. For, inasmuch as the law had commanded that patrons and pat- rons' children should succeed to the inheritance of such of their freed-men or freed-women as should die intestate, our TITLE 18.] OF THE LEGAL GUARDIANSHIP OP PARENTS. 33 ancient lawyers held that the law, by implication, intended that the tutelage also should belong to patrons and their descendants. Besides, when the law calls any of the agnati to inherit, it bids them also act as tutors ; and generally, where lies the advantage of the succession, there ought also to lie the burthen of the tutelage. We use the word K generally/' be- cause, if a woman under years of puberty, be manumitted by a woman, she is indeed called to the inheritance, but another person, and a male, acts as tutor. TITLE 18. OF THE LEGAL GUARDIANSHIP OF PARENTS. AFTER the similitude of the tutorship of patrons, is one of another kind, which also is called " legal" : for if a parent eman- cipate a son or a daughter, a grand-son or a grand-daughter, the issue of that son, or any others descended in a right line from him, provided always they are within years of puberty, such parent is their legal tutor. 34 THE INSTITUTES OP JUSTINIAN. [BOOK TITLE 19. OF FIDUCIARY GUARDIANSHIP. THERE is another kind of guardianship, which is called fiduciary ; for if a parent emancipate a son or daughter, grand- son or grand-daughter, or any other descendant below the age of puberty, such parent then becomes their legal tutor ; but, at his death, the male children, him surviving, become the fidu- ciary tutors of their own sons, or brother, or sister, or other descendants who have been emancipated by the deceased. But if a patron, who is a legal tutor, die, his children also become legal tutors. The reason of this difference is, that the son, although never emancipated, becomes independent at the death of his father ; and as he does not fall under power of his brother, so neither is he under his tutelage. But the freed- man, if he had continued a slave, would still have been, after his master's death, the slave of that master's children. The persons aforesaid are however, not called upon to act as tutors unless they have attained their -majority, (i.e. ,25 years); a rule which our Constitution hath universally ordered to be observed in the case of all tutors and curators. TITLE 20] OF GUAKDIANSHIP BY APPOINTMENT. 35 TITLE 20. OF GUAKDIANSHIP BY MAGISTERIAL APPOINTMENT. IF any had no tutor at all, one was, in the city of Rome, assigned him by the Praetor and a majority of the plebeian Tribunes; this was by virtue of the Lex Atilia. In the pro- vinces, tutors were, by the Lex Julia el Titia, appointed by the respective Governors of each province. Section I. If a testamentary tutor had been appointed con- ditionally, or to act from a fixed day, so long as the condi- tion was unsatisfied, or until the day had arrived, another tutor might, under the above-named laws, be granted. Again, if a tutor had been assigned unconditionally, yet, so long as the heir by the testament deferred taking upon him the inheri- tance, another tutor might be assigned in the interval. But such assigned tutor ceased to hold office from the moment when the condition was satisfied, the day come, or the inhe- ritance entered upon. Section II. If, again, a tutor were taken prisoner by the enemy, a fresh tutor might be applied for, tinder the terms of the two laws above cited. The office of such tutor, however, ceased when the first returned from his captivity ; because the liberated man resumed his tutelage by the jus postliminii, or " right of return". Section III. Tutors, however, have ceased to be appointed under the terms of the laws above cited, from the time when the Consuls first began to assign tutors to pupils of either sex, after due investigation ; and the Prastors were afterwards, by the imperial Constitutions, invested with like power. For, by above cited laws, no security was required from the tutors for 36 THE INSTITUTES OF JUSTINIAN. [BOOK I. the safe treatment of the pupil's property ; nor were there any provisions which compelled them to act Section IV. But our later usage is, that at Rome, either the Praefect of the city, or the Praetor, according to his juris- diction, should assign tutors ; while in the provinces the res- pective Governors may, in their own provinces, do the like ; in all cases after strict investigation. At the command of a provincial Governor, an inferior Magistrate may also assign, if the pupil's property be but small. Section V. But we, by one of our Constitutions, to get rid of the distinctions of different persons, and to avoid the neces- sity of waiting for the sanction of the provincial Governor, have ordained, that if the property of the pupil or adult do not amount to more than 500 solidi (527 Is. 9>cL) tutors may be appointed by the Chief Magistrates of each city, acting in con- junction with the Chief Ecclesiastic of the place, or by any other official personages, that is by all who are in the Magis- tracy, or, in the city of Alexandria, by the Judge. But, in accordance with the terms of this same Constitution, security must be given ; and that, be it understood, at the risk of those who accept it. Section VI. It is in accordance with the law of nature, that all who are not come to the age of puberty be under tutelage ; so that whoso is of tender years may be under the fit government of some other. Section VII. As, therefore, tutors manage the property of their pupils, male and female, they may be compelled, by an action of tutelage, to render an account, when their pupils have arrived at puberty. TITLE 21.] OF THE AUTHORITY OF GUARDIANS. 37 TITLE 21. OF THE AUTHORITY OF GUARDIANS. THE confirmation by the tutor of the acts of his pupil is in some cases necessary, and in others not When, for example, a pupil stipulates for something to be given him, the authority of the tutor is not necessary ; but, if the pupil wish to bind himself by any obligation to others, the authority of the tutor is necessary. For it is an established rule, that the pupil may improve his condition without the tutor's authority ; but cannot, without such authority, impair it. So, therefore, in all cases of reciprocal obligation, as in purchases, sales, lettings, hirings, bailments, deposits, if the tutor's authority be not obtained, they who contract with the pupil are bound, but the pupil is not bound. Section L No pupil can, without his tutor's authority, enter upon an inheritance, nor demand the equitable authority of the- Praetor to give him possession of property, nor take an inheritance in trust; and this, because though there be a chance of gain, they may incur a risk of loss. Section II. A tutor who wishes to lend his authority to any act, which he deems of service to his pupil, should lend it at the precise time when the act is going on, and in person. For the intervention of his authority, at a later period, or by messenger, or letter, is of no avail. Section III. When a suit is to be commenced between tutor and pupil, inasmuch as the former cannot authorize any thing in a matter pertaining to himself, a curator, and not, as was formerly the case, a Praetorian tutor, is appointed ; and, by his intervention, the suit is carried on ; but on the deter- mination of such suit he ceases to be curator. 38 THE INSTITUTES OF JUSTINIAN. [llOOK I. TITLE 22. OF THE EXPIRATION OF GUARDIANSHIP. PUPILS, as well male as female, are freed from the authority of tutors when they arrive at puberty. Now, in the case of males, the ancients judged of puberty not by years alone, but also by the growth of their bodies. But our Imperial Majesty, from a regard to the purity of this our age, hath deemed that what was, of old, deemed immodest in the case of females, to wit inspection of the body, should be thought no less so hi the case of males. We, therefore, by our sacred Constitution, have enacted, that puberty in males be considered to commence immediately on the completion of the fourteenth year. While, as to females, we have left unaltered that old and wholesome regulation, by which they are esteemed marriageable on the completion of their twelfth year. Section I. Tutelage is also determined if the pupil, before the age of puberty, be arrogated ; suffer transportation ; be reduced to slavery for ingratitude towards his patron ; or be taken captive by the enemy. Section II. Also, if a person be appointed tutor by testa- ment until a certain condition be completed, he ceases to act on the completion of such condition. Section III. Tutelage is, further, determined by the death either of tutor, or of pupiL Section IV. When a tutor suffers that diminution which we have called the " greater," by which he is deprived of both citizenship and liberty, his right of tutelage is wholly at an end. But if the tutor suffer only that diminution which we TITLE 23.] OF CURATORS. 39 have called the " least," then the legal tutelage is alone extin- guished ; but other kinds are not affected. In the case of pupils, however, whether male or female, any diminution, even the least, destroys the tutelage. Section V. Tutors, also, who are by testament appointed to act for a term only, give up their tutelage at the expiration of such term. Section VI. Tutors also cease to act, who are removed from their tutelage on suspicion ; or who excuse themselves from the burthen of tutelage on good grounds, and free them- selves in accordance with the regulations, of which we shall hereafter treat. TITLE 23. OF CURATORS. MALES at puberty, and females of marriageable age, re- ceive curators, until they have completed their twenty-fifth year : for, although they have attained to puberty, they are nevertheless not of an age to take a proper care of their own affairs. Section I. Curators are appointed by the same Magistrates who appoint tutors. A curator, however, cannot be appointed absolutely by testament ; but every such appointment must have the confirmation either of the Praetor, or of the Governor of the province. Section II. Persons, arrived at puberty, are not obliged, against their will, to accept curators, except when they were 40 THE INSTITUTES OP JUSTINIAN. [BOOK I. parties to lawsuits ; for a curator may be assigned for any special purpose. Section III. Lunatics and spendthrifts, although past the age of twenty-five, are nevertheless, by a law of the Twelve Tables, placed under the curatorship of their agnati. [But if there are no agnati, or if those who exist are unqualified] curators are appointed for them, at Rome, by the City-Praefect, or the Praetor ; and in the provinces, by the Governors, always after strict inquiry. Section IV. Persons, also, of weak intellect ; those who are deaf and dumb ; or who are subject to any incurable disease, inasmuch as they cannot take a proper care of their own affairs, must be placed under curators. Section V. Pupils even, sometimes, receive curators : as, for example, if the legal tutor be disqualified; and this, because he who has a tutor, cannot have another assigned. So also, if a tutor appointed by testament, or assigned by the Praetor or Governor, be incapable of administering his trust, even though he be guilty of no fraud, it is usual to assign a curator to act together with him. Curators, also, are wont to be assigned in the room of tutors, who are excused not wholly, but for a season only. Section VI. If a tutor be hindered by ill-health, or by any other cause, from administering the affairs of his pupil ; and if the pupil be absent, or an infant, under seven years of age, then the Praetor or Governor of the province shall decree any one whom the tutor may select to be the pupil's agent; but such appointment shall be at the tutor's risk. TITLE 24.] SECURITY REQUIRED OF GUARDIANS, &C. 41 TITLE 24. OF THE SECURITY REQUIRED OF GUARDIANS AND CURATORS. To the end that the property of those who are under tutors, or under curators, may not be wasted or lessened by such tutors, or curators, the Prsetor must see to it that tutors and curators give security against such waste. But this is not always necessary ; for tutors, appointed by testament, are not obliged to give security ; inasmuch as their good faith and carefulness have been sufficiently approved of by the testator. Also tutors, or curators, granted after strict inquiry, are not called upon to give security, because they have been chosen on account of their fitness. Section I. If, by testament, or by a Magistrate after strict inquiry, two or more are appointed as tutors, or curators, any one of them may offer security for the indemnification of the pupil, or minor, and be preferred to his co-tutor, or co-curator, so as to have the sole administration, or he may oblige his co-tutor, or co-curator to give security, if he himself wish to gain the preference and have the sole administration. So that a man cannot demand security of his co-tutor or co-curator ; he must himself offer it, and leave his co-tutor or co-curator the choice of receiving or giving security. And if none of them offer security, if any one have been appointed by the testator to act, he must act ; but, if no such appointment have been made, then he whom the majority shall choose, must have the administration; and this, in accordance with the Praetorian edict. But if the tutors themselves disagree as to the selection of the person or persons who are to administer, then F 42 THE INSTITUTES OP JUSTINIAN. [BOOK I. the Praetor must interpose his authority. The same course must be adopted when several are appointed by the Magistrate after strict inquiry ; that is, a majority of them may appoint one of their number, by whom the administration shall be conducted. Section II. It is well to be known, also, that not only are tutors and curators responsible for the administration of the affairs of pupils, minors, and others under their protection ; but, as a final safeguard, a subsidiary action, i. e. t one for neglect of duty, may be brought against the Magistrate who accepted the security. Such subsidiary action, then, may bo brought against a Magistrate who has either omitted to take any security at all from the tutors or curators, or who has taken such as is insufficient And this action, in accordance with the answers of the jurists, as well as by our imperial Constitutions, lies even against the heirs of such Magis- trates. Section III. By our imperial Constitutions, it is also enacted that tutors and curators who do not give secu- rity, may be forced so to do; their goods being seized as pledges. Section IV. Neither the City Pracfect, nor the Praetor, nor Governor of a province, nor any other high officer who has power to assign tutors shall be subject to this subsidiary action ; but those Magistrates only, whose business it is to exact security. TITLE 25.] EXEMPTIONS OF GUARDIANS AND CURATORS. 43 TITLE 25. OF THE EXEMPTIONS OF GUARDIANS AND CURATORS. TJJTORS and curators are excused from acting on differ- ent grounds ; the most general plea is that of having children, whether in their power or emancipated. For, if a man in Rome have three children living, in Italy four, or in the Pro- vinces five, he may claim exemption from the office of tutor, or curator, as well as from other public employments : for the office both of tutor and curator is considered as public. But adopted children are of no avail ; for, though given in adoption, they count in favor of their natural father. Also, grand-children by a son, when they succeed in place of their father, will excuse their grand-father ; but grand-children by a daughter will not excuse him. Again, it is only children yet alive who can excuse a man from tutelage or (juratorship ; those who are dead avail him nothing. But a question has arisen as to whether those who have fallen in battle may not be reckoned. The decision is, that a -man may avail himself of those only of his dead children who have fallen in battle ; for they who have fallen, on behalf of father-land, are deemed to live for ever in their high renown. Section I. The Emperor Marcus declared by Rescript in his Semestria (half-yearly council), that a person employed in the public treasury should be excused from acting as tutor or curator, so long as he is so employed. Section II. Those who are absent on the business of the State are excused from acting as tutors or curators ; and if those who have already been appointed tutors or curators, 44 THE INSTITUTES OP JUSTINIAN. [BOOK I. should afterwards be absent on the business of the State, they are excused during such their absence, and other curators are appointed in their room. But on their return, they must again assume the burthen of tutelage ; nor are they entitled, as Papi- nian held, in the fifth book of his answers, to the privilege of a year's vacation ; that term is granted only to those who are appointed, on their return, to a new tutelage. Section III. By a Rescript of the Emperor Marcus, all in- ferior Magistrates may claim exemption ; but, when once^hey have undertaken the trust, they cannot desert it. Section IV. Further, no tutor or curator can excuse him- self from acting, by the plea that there is a lawsuit pending between him and the pupil or minor ; unless, indeed, the suit have reference to the whole property, or to all the inheritance of such pupil or minor. Section V. Also, three tutelages or curatorships, if unsued for, will, during their continuance, exempt a man from the burthen of a fourth. But the tutelage or curatorship of seve- ral pupils or minors, under one and the same patrimony, as in the case of brethren, is reckoned only as one. Section yi. The Emperors Marcus and Lucius Verus jointly, and Marcus singly, have enacted by their Rescripts, that poverty, also, is a sufficient excuse ; provided a man can prove that he is unable to sustain the burthen imposed upon him. Section VII. Illness, also, is allowed to be a ground of excuse, if a man be unable to look after even his own affairs. Section VIII. So, also, by a Rescript of the Emperor Antoninus Pius, persons who cannot read must be excused ; although in some cases, men who cannot read are capable of the administration. Section IX. Also if, through ill-will, a father by testament appoint any one as tutor, such motive alone will form a suffi- cient excuse: as, on the other hand, they who have given their promise to the father of the pupils, cannot be excused. TITLE 25.] EXEMPTIONS OF GUARDIANS AND CURATORS. 45 Section X. The two Emperors above-named have enacted by their Rescript, that it is not alone to be admitted as suffi- cient excuse, that the tutor was personally unknown to the father of the pupils. Section XI. An enmity against the father of the pupil or minor, if really of the bitterest kind, and if no reconciliation has intervened, is usually looked on as a good excuse from acting as either tutor or curator. Section XII. So, too, if a man's social standing have been called in question by the father of the pupil, he is excused from acting as tutor. Section XIII. A person, also, above seventy years of age, may claim exemption both from tutelage and curatorship. Minors, that is all under twenty-five years of age, were also formerly excused ; but now, by our Constitution, they are for- bidden to aspire to such trusts ; so that, of course, there is now no need of any formal excuse. It is also enacted, by the same Constitution, that neither a pupil, nor a minor, shall be called even to a legal tutelage. For it were ridiculous, that they who are themselves under governors, and are known to need help in the administration of their own affairs, should notwithstanding act as the tutors and curators of others. Section XIV. And it must be observed, also, that no member of the military profession can, even though he be willino-, be admitted to the office of tutor or curator. O 7 Section XV. Grammarians, rhetoricians, and physicians practising whether in Rome, or in their own provinces, and being within the number authorized by law, have exemption from both tutelage and curatorship. Section XV. Whoso wishes to claim exemption, and has several grounds of excuse, may, even though some have been disallowed, urge others ; provided always he do so within the time prescribed. But tutors and curators, of what kind soever they may be, that is, however they have 46 THE INSTITUTES OP JUSTINIAN. [BOOK I. been appointed, ought not, if they wish to claim exemption, to appeal directly, but should offer their excuses within the fifty days next after they have known of their appointment ; that is, supposing they are within an hundred miles of the place where they were nominated. If, however, they live at a distance of more than an hundred miles, an allowance is made of a day for every twenty miles, and thirty days besides ; the time, however, as Scajvola said, should never be less than fifty days. Section XVII. A tutor when appointed, is considered as appointed to administer the whole patrimony. Section XVIII. He who has acted as tutor to a minor, cannot, against his will, be compelled to become his curator ; so much so that, by a Rescript of the Emperors Severus and Antoninus Caracalla, even though a father appoint a tutor by testament, and add that he nominates the same person as curator, the person so appointed is not, against his will, com- pelled to take upon him the office of curator. Section XIX. The same Emperors enacted, by Rescript, that a husband appointed as curator to his wife, may claim exemption ; and this, even though he may have begun to act Section XX. If, however, any person have gained exemp- tion from acting as tutor, by false allegations, he is not thereby discharged from the burthen of this office. TITLE 26.] TUTORS, &C., UNDER SUSPICION OF FRAUD. 47 TITLE 26. OF TUTORS AND CURATORS UNDER SUSPICION OF FRAUD. THE right of accusing a tutor or curator who is under suspicion is derived from the law of the Twelve Tables. Section I. At Rome, the power of removing suspected tutors belongs to the Praetor ; and in the provinces, to the Governors, or to the Legate of the Proconsul. Section II. We have shown what Magistrates can take cognizance of persons under suspicion ; let us now inquire what persons may become suspected. And first, all tutors may become so, and this whether appointed by will, or in any other way soever ; wherefore also, an accusation will lie against a legal tutor. But how is it in the case of a patron ? He, also, may be accused ; we must only bear in mind that, even though he be removed from his trust as suspected, his reputation must be spared. Section III. The next point is, to consider who have the right of accusing such as are suspected. And first, be it known, that an accusation of the sort is of a public nature ; that is, it is open to all. Yea, by a Rescript of the Emperor Severus, women even are admitted as accusers ; nevertheless they only are admitted, who are induced by feelings of affec- tion, as in the case of a mother, or nurse, a grand-mother or a sister. But the Prastor can, at his discretion, admit, to make the accusation, any other woman also in whom he perceives a genuine affection, and who, without overstepping the modesty of her sex, is, by this same affection, induced to an impatience of the pupil's wrongs. 48 THE INSTITUTES OP JUSTINIAN. [BOOK I. Section IV. Pupils cannot themselves bring an accusation against their tutors as suspected : but minors may, in accord- ance with a Rescript of the Emperors Severus and Antoninus, accuse their curators ; provided they do so under the advice of their near relations. Section V. A tutor who does not faithfully fulfil his trust is, as Julian writes, under suspicion ; and this though he be in circumstances to answer damages. And the same Julian is also of opinion, (and an imperial Constitution has been framed in accordance with such opinion), that even before he enters upon his office, the tutor may be removed, as suspected. Section VI. He who is suspected, and removed on account of fraud, incurs that civil degradation called " infamy;" but not so he who is r emoved for neglect alone. Section VII. If an accusation of suspicion be brought against any one, his administration is, according to Papinian, held in suspense, while the charge is under consideration. Section VIII. If an action be commenced against a tutor or curator, as suspected, and the accused die pending the examination, then such action is extinguished. Section IX. It is provided by a Rescript of the Emperors Severus and Antoninus that, if a tutor fail to appear in court, to fix the amount to be allowed for the pupil's maintenance, the pupil shall be put in possession of his tutor's goods ; and, on the appointment of a curator, those things, which are perishable, may be forthwith sold. Any tutor, therefore, may be removed, as under suspicion, who does not make a due allowance for the maintenance of his pupil. Section X. But, if a tutor do personally appear in court, and aver that, by reason of the smallness of the estate, no maintenance allowance can be made ; if such averment be untrue such tutor shall be handed over, for punishment, to the City Prsefect; and be treated just as is he, who has gotten a tutorship by bribery. TITLE 26.] TUTORS, &O, UNDER SUSPICION OF FRAUD. 49 Section XL A freedman, also, who is proved to have frau- dulently administered the tutelage of the son, or grand-son of his patron, must be handed over for punishment to the Praefect of the City. Section XII. Lastly, it is to be observed, that tutors and curators who unfaithfully administer their trust must be removed from it, even though they tender sufficient security. For the giving security, does not alter the fraudulent intention of the tutor, but only gives him an opportunity of injuring the estate for a longer period. Section XIII. We also hold every man suspected, whose moral conduct is such that we needs must have him in suspicion. But a tutor, or curator, who, though poor, is faithful and painstaking, is not to be set aside as a suspected person, simply by reason of his poverty. END OF BOOK I. BOOK II. TJTLE 1. OF THE: CLASSIFICATION OF THINGS ; AND THE - ACQUISITION OF PROPERTY. IN the foregoing book, we have treated of the Law of Persons; let us now inquire concerning Things. Things, then, are either in the patrimony of some one, or are not in the patrimony of any one. For some things are, by the Law of Nature, common to all ; some are public ; some belong to corporate, or politic bodies ; and some belong to no one. Most things are the property of individuals ; and these acquired by each person in different ways, as will be seen hereafter. Section I. These things are, by the Law of Nature, com- mon to all mankind, air, running water, the sea, and con- sequently the shores of the sea. No one, therefore, is forbidden to approach the shore of the sea, provided he abstain from injuring houses, monuments and buildings, for these are not of common right, as is the sea. Section II. All rivers, also, and ports are public property, therefore all men have a common right to fish in a port, or in rivers. TITLE 1.] OF THE CLASSIFICATION OF THINGS, &C. 51 Section III. Sea-shore, is that tract of land over which the highest winter's tide extends itself. Section IV. By the Law of Nations, the use of the banks of a river is public, just as is that of the river itself. Thus every one has a right to bring his vessel to the bank ; to tie ropes to the trees that grow there, or to place any portion of his cargo on it, just as much as he has to navigate the river itself. But still, the property of the banks is vested in those who are proprietors of the land which they adjoin ; for which reason, the trees which grow upon them belong to those proprietors. Section V. The use of the shores of the sea is as public, and common to all men as is the sea itself; therefore any person is permitted to build a house there, for his habitation, or to dry his nets, and draw up anything from the sea upon the shore. The property of the shore, however, must be understood to be vested in no individual, but to partake of the same legal nature as the sea itself, and the soil or sand which is beneath it. Section VI. Certain things belong to bodies corporate, and not to individuals ; as, for example, in cities, theatres, race- courses, and other like places, which are the common pro- perty of the whole city. Section VII. Things sacred, religious, or holy, belong to i no individual, for that which is of divine right, is the property of no man. Section VIII. Things sacred, are such as have been duly \ consecrated, and that too by the Pontiffs, as sacred buildings, and offerings, in due form dedicated to the service of God. Which things we, by our Imperial Constitution, have forbidden to be sold or mortgaged, save for the purpose of purchasing the freedom of captives. But, if a man merely by his own authority presume to consecrate a building, it is not thereby sacred, but profane only. The site, however, on which a con- secrated building has been raised, continues sacred even 52 THE INSTITUTES OF JUSTINIAN. [BOOK II. though the building be itself destroyed ; and this is the written opinion of Papinian. i Section IX. Of things religious ; any one may at his pleasure, make a place religious, by burying a dead body in land belonging to himself : but when land is held in joint proprietorship and has hitherto been unused for such a pur- pose, it is not lawful to bury, without the consent of a co- proprietor. But, if a burying ground be held in common, any one co-proprietor may bury in it, even though the rest dissent So, if one have the usufruct, and another the owner- ship, the owner may not, without the consent of him who has the usufruct, make the ground religious. But it is lawful to bury in the ground of another, provided that other consent : and though he should withdraw his assent, after the burial, still the place is religious. f Section X. Things holy, also, as the walls and gates of a city, are, in some sort, subject to divine law, and are therefore no part of the property of any individual. The walls of a city are said, by us, to be holy, because capital punishment is decreed against those who do them any injury; so, also, those portions of the laws, wherein penalties are established against transgressors, we call " sanctions" Section XL Things become the property of individuals in various ways ; of some we acquire the ownership by the Law of Nature, which, as we have observed, is also called the Law of Nations ; and of others, we acquire it by the Civil Law. It will be more convenient to begin with the more ancient law ; and it is most clear that the law, which nature herself estab- lished at the first origin of the human race, is the more ancient; for Civil Laws could only first exist when States were founded, Magistracies created, and Laws written. Section XII. Wild animals, therefore, and birds, and fishes, and all living things which are produced in the sea, the heavens, and the earth, so soon as they are taken possession TITLE 1.] OF THE CLASSIFICATION OF THINGS, &C. 53 of by any one, become the property of him that captures them ; and this by the Law of Nations ; for natural reason gives that which was the property of no one, to him that first occupies it. Nor does it matter whether a man take wild animals or birds upon his own premises, or upon those of another. Undoubtedly he who enters the land of another for the purpose of hunting or fowling may be warned off by the owner, if he should perceive the purpose of entering. All that of this kind you take, is considered as your property so long as it is under the restraint of your custody ; but so soon as it has escaped from such custody, and regained its natural liberty, it ceases to be yours, and again becomes the property of him that captures it. The animal is considered to regain its natural liberty when it has either vanished from your sight, or is before your eyes under such circum- stances that pursuit would be difficult. Section XIII. The question has been mooted, whether, if you have so wounded a wild animal, that it might with ease be taken, it is understood to be forthwith your property. Accord- ing to the opinion of some, it becomes your property so soon as you have wounded it, and continues to be yours, so long as you continue to pursue it : but if you cease to pursue it, is ceases to be yours, and becomes again the property of him that first can capture it. Others have held that it becomes yours only on condition of your capturing it. And we con- firm the latter opinion, for many mischances may occur to hinder you from capturing it. Section XIV. Bees, also, are wild by nature. Those, therefore, which swarm upon your tree, before you have hived them, are no more deemed your property, than are the birds which build their nest there ; so, therefore, if any other hives them, he becomes their owner. Furthermore, if they have made honeycombs, any one is at liberty to take them. But clearly if, before the comb be touched, you see any one 54 THE INSTITUTES OF JUSTINIAN. [BOOK II. entering on your ground, you have full right to stop his en- trance. A swarm also, which has flown from your hive, is looked upon as your property, so long as it is in sight, and may without difficulty be pursued : otherwise it becomes the property of him who first can capture it. Section XV. Peacocks, also, and pigeons are wild by nature ; nor is it a valid objection to say, that after every flight they are wont to come back ; for bees do the like, and that they are naturally wild, is on all hands admitted. So, also, some people have deer so tame, that they go regularly into the woods, and as regularly return ; yet no one denies but that deer are wild by nature. But, in the case of animals which are in the habit of going and returning at regular pe- riods, the rule observed is, that they are considered yours so long as they retain the disposition to return ; but if they cease to have this disposition, they cease also to be your property, and become that of him who first can capture them. Now animals are held to have lost the disposition, when they have lost the habit of returning. Section XVI. But fowls and geese are not by nature wild ; and this we perceive from the fact that there are particular kinds of fowls and geese, which we call wild. If, therefore, your geese or fowls, being disturbed and frightened, take to flight, they are still considered as your property, wherever they may be, and that although you have lost sight of them ; and he who takes possession of such animals, with intent to appropriate them, is guilty of theft. Section XVII. All those things which we take from our enemies become immediately our own, by the Law of Nations ; so far even, that freemen are, in this manner, reduced to slavery under us. But, so soon as they escape from our power, and have got back to their own people, they regain their former social standing. Section XVIII. Precious stones and gems, and other TITLE ].] OF THE CLASSIFICATION OF THINGS, &C. 55 valuables which are found upon the sea-shore, become instantly, by natural law, the property of him that finds then. Section XIX. The offspring of animals of which you are the owner becomes, by the same natural law, your property. Section XX. Moreover, the soil which a river hath added by alluvial increase, to your estate, becomes yours by the Law of Nations. Now an alluvial is an imperceptible increase ; and that is held to be added by alluvial increase, which is so gradually joined on that it is impossible to determine how much is added in each moment of time. Section XXI. But if the violence of a river carry off any portion of your land, and join it on to the estate of your neighbour, it undoubtedly still remains yours. But, if it should remain joined to his estate for a considerable space of time, and if the trees, which it swept with it, should strike their roots into his land, then both it, and the trees upon it, become, from that time, part of your neighbour's estate. Section XXII. An island which rises in the sea, a thing of rare occurrence, is the property of him that first occupies it, for it is held, before occupation, to be the property of no one. But, if an island be formed in a river, a thing of frequent occurrence, if it be exactly in the middle of the stream, it becomes the common property of those who, on each side of it, possess the lands on the river-banks ; and they take in pro- portion to the extent of each man's property, as it adjoins the banks. But, if the island be nearer to one side than the other, it is the sole property of those who own lands near the river- bank on that side. Also, if a river be divided at one place, into branches, and afterwards lower down the stream such branches reunite, and thus any one's land is enclosed, in the form of an island, such land still continues the property of the former owner. Section XXIII. If a river, leaving utterly its natural bed, begin to flow in another direction, the old bed is the property 56 THE INSTITUTES OP JUSTINIAN. [BOOK II. of those who have lands along its banks ; always in proportion to the extent of land which each has adjoining to the banks. The new bed, however, becomes public. And if, after some time, the river again return to its former channel, the new bed again becomes the property of those who own the lands along its banks. Section XXIV. If, however, a man's whole field be flooded only, the case is wholly different ; for a flood does not alter the nature of the land ; when, therefore, the waters have subsided, the land is still indisputably the property of its former owner. Section XXV. When one man has made any thing with the materials of another, a question often arises, as to which ought, according to natural reason, to be considered the proprietor; he, namely, who gave the form, or he who owned the materials. As, for example, if a man have made wine, or oil, or flour, from the grapes, olives, or wheat-ears of another ; or have cast a vessel, out of gold, silver, or brass, the property of another; or have brewed mead with another man's wine and honey ; or have composed a plaster, or an eye-salve, with another man's drugs; or have made a robe, with another's wool; or have built a ship, a chest, or a bench, with another man's timber. Now, after much discussion between the Proculeans and Sabinians, it has seemed good to us to adopt a middle course, or compro- mise, between the conflicting authorities, and to make the following distinction. If the thing wrought can be reduced to its original raw materials, then he who owned the said materials is deemed the owner of the thing made ; but, if the thing wrought cannot be so reduced, then he who made it is adjudged proprietor. For example, a vessel when cast, may be reduced, with ease, to its raw materials of brass, of silver, or of gold ; wine, oil and flour, on the other hand, cannot be again converted into grapes, olives, or wheat-ears ; nor can TITLE l.J OP THE CLASSIFICATION OF THINGS, &C. 57 mead, even, be resolved into wine and honey. But, if a man have made any fresh tiling, out of materials partly belonging to another ; as, for instance, if he have brewed mead, with his own wine and some one else's honey ; or a plaster or eye- salve, with drugs partly his own, and partly those of another ; or a robe, with a mixture of his wool with that of another ; there can be no doubt but that, in such cases, the maker of the thing is its proprietor ; since he not only gave his labour, but contributed also a share of the materials. Section XXVI. If, however, a man have woven the purple belonging to another man into his own vestment ; then, the purple, although it be more valuable than the cloth, still belongs to the vestment as an accession. And he who was the owner of the purple can sue him who stole it from him both in an action of theft, and in that personal action, called a conduction ; and this whether the vestment were made by him who committed the theft, or by some other. For although things which have become, as it were, extinct by change of form, cannot be recovered identically, z". e., by a real action or vindication, still a personal action, or condiction, for the recovery of their value may be brought either against the thief, or against any other possessor. Section XXVILlf the materials of two proprietors be mixed together by their joint consent, the whole mass which results from such mixture is the common property of both owners; as, for example, if they have mixed their wines, or fused together their gold, or their silver. The same rule is observed, where different elements are so used in the admixture, as to form one new substance ; as when mead is made of wine and honey ; or an electrum by the fusion together of gold and silver ; for in this case, also, it cannot be doubted that the new substance is common. The same rule holds, too, when materials, whether of like kinds or unlike, are mixed together accidentally, and without the consent of the proprietors. 58 THE INSTITUTES OF JUSTINIAN. [BOOK II. Section XXVIII. If, with your consent, the wheat of Titius have been mixed with yours, the mixed heap is the common property of both ; and this, because, each grain of corn, which was before the property of one or other of you, has, by your will and consent, been made common property. But if such admixture was the result of accident, or brought about by Titius without your consent, then the mixed wheat does not appear to be the common property of you both, for the single grains still remain distinct, and retain their proper substance. In such case, the corn is no more held to be common, than would a flock, if the sheep of Titius were mixed with yours. But, supposing the whole mass of mixed wheat to be detained, by either party, the other party has his real action for the amount of wheat which belongs to him ; and it is part of the duty of the judge to assess the quantity, or value of the wheat belonging to each party. Section XXIX. When a man hath built upon his own ground, using materials belonging to another, he is looked upon as the owner of the building, because all that is built on the soil, accedes to, or follows the soil. The owner of the materials does, nevertheless, not thereby cease to be so ; he cannot, however, claim the materials, nor bring his action for the exhibition of them ; being prevented by a law of the Twelve Tables, which provides, that no man shall be compelled to remove from his house a beam (tignum) which belongs to another ; but he may be forced, by an action called " de tigno juncto," to pay twice the value of the materials ; and under this general term tignum literally, a " beam," all building mate- rials are included. The aim of this provision was, to prevent the necessity of buildings being pulled down. If, however, from any cause, a building should be pulled down, the owner of the materials, provided he have not already obtained his dou- ble value, may then demand to have the identical materials, and bring his action for their exhibition. TITLE 1.] OF THE CLASSIFICATION OF THINGS, &C. 59 Section XXX. So, on the other hand, if a man have built with his own materials on the ground of another, the building becomes the property of him to whom the ground belongs. But in this case, the owner of the materials loses his right of property in them, for he is understood to have made a voluntary alienation of them ; that is, if he were well aware that he was building upon another's land. Therefore, if even the building should be destroyed, he cannot prefer any claim to the materials. But it is indisputable, that if the man who builds be in actual possession of the soil, and if the owner of the soil claim the building, but refuse to pay the cost of the materials, and the wages of the workpeople, such owner may be repelled by the exception, or bar of fraud, provided always, he who built was in bond fide possession. But it may justly be objected to any man, who well know that the ground belonged to another, that he had rashly built upon ground which he knew to belong to another. Section XXXL If Titius, in his own ground, have set the plant of another, such plant will belong to Titius ; if, on the other hand, Titius have set his own plant in the ground of Maevius, that plant will belong to Maevius, provided always, in both one case and the other, the plant has taken root ; for before it has done so, it continues the property of its former owner. But, from the very instant when a plant has cast its roots into the ground, the right of property in it is changed ; so that, if a neighbour's tree border so closely on the ground of Titius as to take root in it, we may affirm, that such tree is the property of Titius. For reason does not allow, that a tree should be deemed the property of any, save of him in whose ground it has taken root ; if, therefore, a tree planted near the boundaries of one man's land, extend its roots, also, into the lands of a neighbour, such tree becomes the common property of both land-owners. Section XXX1L On the same principle that plants, rooted 60 THE INSTITUTES OP JUSTINIAN. [BOOK II. in the soil, are accessories to the soil ; so grains of corn, when sowed, are considered to accede to, or follow the soil. But as he, who built upon another's ground, may (as was before said) defend himself by an exception of fraud, if the owner of the ground claim the building ; so also, he who at his own cost, and bonajide hath sowed his grain in another's land, may claim protection by the like exception. Section XXXIII. Writings, also, even though the charac- ters be of gold, are accessories of, and follow the papers or parchments on which they are written ; precisely as what is built on, or sowed in, the soil, accedes to, and follows the soil. So, then, if on your paper, or parchment, Titius have written a poem, a history, or an oration, you, not Titius, are the owner of the written paper. But, if you sue for your books or parchments from Titius, and at the same time refuse to pay for the expenses of writing, then Titius can claim protection by an actio'n of fraud ; provided always he was in possession of such papers or parchments bond fide; that is honestly, and believing them to be his own. Section XXXIV. If a man have painted on another man's canvass, some hold that the canvass is an accessory of the painting, while others hold, that the painting, whatever be its value, is an accessory of the canvass. To us it seems the better opinion, that the canvass is accessory to the painting ; for it were ridiculous that a painting of an Apelles, or a Parr- hasius should be but the accessory of a worthless canvass. But, if the owner of the canvass have got possession of the pic- ture, the artist who claims it from him, and yet refuses to pay the cost of the canvass, may be repelled by an exception of fraud. If, however, the artist have possession of the picture, it follows that the proprietor of the canvass may sue him in what is called, " a beneficial action" (actio utilis) ; and if, in this case, the plaintiff do not first pay the expense of the painting, he also may be repelled by an exception of fraud ; that is, if the TITLE 1.] OF THE CLASSIFICATION OF THINGS, &C. 61 painter had a bond fide possession of the canvass. But it is also clear, that if either the painter, or any one else have feloniously taken a canvass, the owner of such canvass will be entitled to his remedy in an action of theft. Section XXXV. If a man have bond fide purchased an estate from one whom he believed to be the owner, but who in fact was not ; or have, also bond fide, acquired it from such a person, by gift, or any other lawful means, it is in accordance with natural reason, that the produce, which he has gathered, shall be his, as a return for his care and cultivation. If, therefore, at an after period, the real owner shall arrive, and claim his lands, he can sustain no action for the produce, which the bond fide possessor has consumed. But the like exemption, from such action, is not conceded to the man, who, of his knowledge, has taken possession of another man's estate ; he, therefore, is compelled to restore, together with the estate, all the produce, or its value, if it have been con- sumed. Section XXXVI. He, however, to whom the mere usufruct of lands belongs, does not gain a property in the fruits of such lands until he has actually gathered them ; if, therefore, he should die, while the fruits, although ripe, are still ungathered, such fruits do not belong to his heirs, but are the property of the owner of the lands. The same may, in general, be said of the tenant-farmer. Section XXXVII. In estimating the fruits of animals, we reckon their young, as well as their milk, hair and wool; thus lambs, kids, calves, colts, and young pigs are, of natural right, the property of the usufructuary. The offspring, how- ever, of a female slave is not reckoned as a fruit, but belongs to him in whom the property of such female slave is vested ; for it appeared absurd that a human being should be reckoned as a fruit ; when all kinds of fruits are provided by nature for the benefit of man. 62 THE INSTITUTES OP JUSTINIAN. [BOOK II. Section XXXVIIL He who has the usufruct of a flock should keep up the original number, by supplying out of the young, the place of such as chance to die; such was the opinion of Julian. In the room, also, of dead vines, or trees, the usufructuary should plant others ; for he should cultivate with care, and act in every thing as would a careful father of a family. Section XXXIX. The Emperor Hadrian, in accordance with natural equity, granted treasure, which a man found in his own land, to the finder ; and made a similar grant in the care of him who, accidentally, found a treasure in a sacred or religious place. Also, if a person, without express search, but by chance, found a treasure in land belonging to another, he granted half to the finder, and half to the owner of the land. Consequently, if any thing be found in the Imperial demesnes, he ordained that half should go to the finder, and half to the Emperor. In like manner, if a man find any thing in a spot, the property of the treasury, the public, or the State, one-half should belong to the finder, and the other to the treasury or the State. Section XL. Things, also, are acquired, according to natural law, by tradition, or delivery ; nothing can be more in accordance with natural law than to give effect to the will of a proprietor, who desires to transfer his property to another. Consequently, any corporeal thing, whatever be its nature, may be passed by tradition, or livery, and when so passed it is alienated by the proprietor. Stipendiary and tributary lands (those which are situated in the provinces are so called) may be alienated in this manner; for between these lands and those of Italy, there is now, by our Imperial Con- stitution, no difference; but if, for the purpose of a gift, a jointure, or any other object, they are passed by tradi- tion, or livery, without doubt the property in them is transferred. TITLE 1.] OF THE CLASSIFICATION OF THINGS, &C. 63 Section XLI. Things sold and delivered do not, however, become, by acquisition, the property of the buyer until he have either paid the seller his price, or satisfied him in some way or other, as by procuring some one as security, or by giving him a pledge. And, though this is so ordained by a law of the Twelve Tables, it may properly be said to spring from the Law of Nations, that is, from the Law of Nature. If, however, the vendor have given credit to the purchaser, we must hold that the thing then becomes at once the property of the latter. Section XLII. It makes no difference whether the owner himself give livery of the thing ; or whether another, to whom its custody has been entrusted, do so with the owner's consent. Therefore, if a man be entrusted by an owner with the uncontrolled administration of his goods, and if such committee sell and pass by delivery, any portion of such goods, he passes the property in that portion to him who receives it. Section XLIII. In some cases, the mere will of the pro- prietor, without delivery, serves to pass the property in a thing, as when a person has sent a thing to you, or let it, or left it in your care, and afterwards either sells, or gives, or lets you have it as a marriage portion. For, although he has not delivered it to you for any of these ends, so soon as it is, by his consent, reported to be yours, you have instantly acquired in it a property, as full as if it had been formally delivered, for the purpose of passing the property. Section XLIV. Also, if any one have sold merchandize in a warehouse, he transfers the right of property in it to the purchaser, so soon as he has delivered over to him the keys of the warehouse. Section XL V. The will of an owner, directed towards a person even who is not specified, passes the property in a thing : as, for example, when the Praetors and Consuls cast their 64 THE INSTITUTES OF JUSTINIAN. [BOOK II. largesses among the crowd, they know not what any particular man will get ; still, because their will is, that what each man gets should be his own, they make him forthwith master of that which he may get. Section XL VI. By similar reasoning, it seems quite true to say that, if a thing which has been cast away, and made a derelict, by its owner, be seized by some other person, it becomes at once the property of him who so gets possession of it. Now a thing is looked on as derelict, which an owner has cast away, with the express purpose to have it no longer, as a part of his effects ; and therefore, from that moment, it ceases to be his. Section XL VII. The law is different in the case of those things which are thrown overboard in a storm, for the purpose of lightening a ship ; such things remain the property of their owners, inasmuch as it is clear that they were not thrown away from a wish to be rid of them, but that both owners, and ship too, might the more easily escape the perils of the sea. For which reason, if a man, with a view to gain, carry them off when washed on shore, or even when found on the high seas, he is guilty of theft Not very different from these, is the case of those things which have dropped from a carriage in motion, without the knowledge of the owners. TITLE 2.] OF THINGS CORPOREAL AND INCORPOREAL. 65 TITLE 2. OF THINGS CORPOREAL AND INCORPOREAL. SOME things, again, are corporeal ; and some others incor- poreal. Section I. Corporeal things are those which are tangible by their nature; as land, slaves, raiment, gold, silver and other things out of number. Section II. Incorporeal things are those which are not tangible, but consist in right ; as rights of inheritance, usufructs* uses, and all obligations, however contracted. Nor does it make any difference that the inheritance contains corporeal things ; for fruits gathered by the usufructuary are corporeal ; and that which is due to us by virtue of an obligation is generally corporeal, as land, slaves, money; but the very right of inheritance, and right of usufruct, and right of obligation are incorporeal. Section III. Of things incorporeal are, also, those rights over estates, urban and rural, which are called Servitudes. 66 THE INSTITUTES O? JUSTINIAN. [BOOK II. TITLES. OF SERVITUDES. SERVITUDES of rural estates are these ; a foot-path, a horse- road, a highway, and an aqueduct The first the foot-path is the right of way for human creatures, but not for driving a beast or cart. The second the horse-road is the right of way for driving a beast or cart ; consequently, he who has the first, or simple right of way, has not the right of passage for beasts or vehicles ; but he who has the second, has the former also, and may use it even though he have no beasts with him. The third the highway is the right of way, with beasts and vehicles, or afoot ; it comprehends, therefore, the first two, namely, the foot-path, and the horse-road. The fourth the aqueduct is the right of having a passage, or conduit for water through the land of another. Section I. Servitudes of urban estates are proper to build- ings ; and they are called servitudes of urban estates, because we call all buildings " urban" messuages, even though they be built in the country. Now the following are the servitudes of urban property; (1) the right of making a neighbour's house support an adjoining building ; (2) the right of fixing a beam, or joist in a neighbour's house ; (3) the right of permitting, or of refusing to permit, the drip and flow from the gutter-pipes of another man's house, to run upon one's own buildings, or into one's court or drain ; (4) the right of restraining a man from raising his house in height, so as to obstruct his neighbour's lights. Section II. Some think that among the servitudes of rural estates ought properly to be reckoned, the right of drawing TITLE 4.] OF USUFRUCT, 67 water ; of watering and feeding cattle ; of burning lime ; and of digging sand. Section III. All these are called real servitudes, because they cannot exist without real property to support them. For none can either acquire or own a servitude of an estate, rural or urban, unless he have an estate in his possession. Section IV. If a man be desirous of creating a servitude in favour of a neighbour, he may do it by contracts and stipulations. A person can, also, by his testament, prohibit his heir from heightening his house, so as to obstruct his neigh- bour's lights ; or may bind his heir to allow a neighbour to insert a beam into his wall ; or to receive upon his house the drippings of another's ; or to suffer a neighbour to walk or drive across his land, or to have a water-conduit through it T I T L E 4. OF USUFRUCT. USUFRUCT is the right of using and enjoying the fruits of things which belong to others, without destruction of their substance. It is a right over a corporeal thing ; and if this cease to exist, the right is necessarily extinguished. Section I. The usufruct is separated from the property ; and this separation may be effected in many ways; if the usufruct be bequeathed by testament ; for the heir has then the bare ownership, while the legatee has the usufruct ; or, on the contrary, if an estate be bequeathed subject to the deduction of the usufruct, the legatee has the bare ownership and 68 THE INSTITUTES OP JUSTINIAN. [BOOK II. the heir has the usufruct So too, a testator may leave the usufruct to one, and the estate, less the usufruct, to another. If, however, he wish to constitute an usufruct otherwise than by testament, he must do it by contract and stipulations. Lest, however, property should be rendered wholly valueless, by the usufruct being for ever detached, it has been deemed expedient to frame certain methods whereby the mere usufruct should become extinguished, and revert to the property. Section II. Usufruct may be constituted not only in lands and buildings, but in slaves, also, in beasts of burthen, and in all other things, save those which are consumed by use : for in these the separation of the usufruct is incompatible with either natural or civil reason. Of such may be reckoned wine, oil, wheat, clothes ; money, also, may be added as being very similar; for, by constant use, and frequent change of owners, it is in a manner consumed by use. But the Senate deemed it matter of expediency, that a certain usufruct might, even in such things, be constituted ; provided always, sufficient security were given to the heir. If, therefore, the usufruct of money be left by testament, such money is considered as given to the legatee in strict ownership; but he must give security to the heir, for the repayment of a like sum in case of his death, or of his suffering diminution. Other things, of consumable nature, are, in case of bequest, delivered to the legatee so as to become his property ; but a valuation of them is effected, and security given for the payment of the amount of such valuation, in the event of the death of the legatee, or of his diminution. The Senato, then, has not created an absolute usufruct in things of this nature, for that were an impossibility, but has, by demand- ing security, established what may be called quasi-usufruct. Section III. Usufruct terminates by the death of the usufructuary; also, by his suffering the greater, or middle TITLE 5.] OF USE AND HABITATION. 69 diminution ; and lastly, by his lack of use, according to the manner, and in the time prescribed ; all which points are set forth in our Constitution. The usufruct, also, expires by surrender from the usufructuary to the owner of the property (for surrender to a stranger has no such effect) ; or, on the other hand, by the acquisition of the property by the usufruc- tuary ; and this union of the usufruct with the property, is called consolidation. Further, it is evident that if buildings have been burnt down, or fall to pieces, whether through earthquake or decay, the usufruct in them is wholly destroyed ; and no usufruct is due, even of the ground on which they stood, to the former usufructuary. Section IV. When the whole right of usufruct is extin- guished, it then reverts to the property; and thenceforth, he who had before the bare ownership, acquires full power over the thing. TITLE 5. OF USE AND HABITATION. THE bare use, and the usufruct are both constituted, and both terminated by the same means. Section I. The right of use is, however, of less extent than is that of usufruct. For he who has the bare use of lands, is understood to have nothing more than the right of taking such herbs, fruit, flowers, hay, straw and fuel as shall suffice for his daily requirements. He is allowed to remain on the land, also, so long only as he neither harasses the owner, nor is a 70 THE INSTITUTES OF JUSTINIAN. [BOOK II. hindrance to those who are engaged in the cultivation of the soil; but he has not the power which the usufructuary has, to transfer his privileges to another, whether by lease, or sale, or gift. Section II. Also, he who hath the mere use of a house, is understood to have in it only such a right as to enable him to inhabit it himself, but he cannot transfer this right to another ; and there has been great doubt as to whether he can let it to a lodger. He has however the right to live in it, with his wife, and children, and freed-men, and such other free persons as are as much in his service as are his slaves. So, in like manner, a wife who has the use of a house, may dwell in it with her husband. Section III. He, also, who has merely the use of a slave ; has the right to avail himself only of the labour and service of such slave ; but he is by no means permitted to transfer his right to another. The same rule prevails as to beasts of burthen. Section IV. If the use of a herd of sheep or cattle be left by testament, he who has the use cannot take either milk, lambs or wool ; for these are part of the fruits. He may, however, clearly use the manure for the improvement of his ground. Section V. The right of habitation, whether given by will or constituted by any other means, seems to be neither use nor usufruct, but a right, as it were, peculiar to itself. With regard, therefore, to general expediency, and in accordance with an opinion of Marcellus, we have published a decision whereby we have permitted all such as have this right of habitation, not only themselves to dwell in the place over which such right extends, but also to transfer that right by lease to others. Section VI. What we have here said of servitudes, usufruct, use, and habitation may, at present, be enough. Of TITLE 6.] OF TITLE BY PRESCRIPTION. 71 inheritances and obligation we shall treat in their proper places. We have already briefly explained how things are acquired according to the Law of Nations : let us now see how they are acquired according to the Civil Law. TITLE 6. OF TITLE BY PRESCRIPTION. BY the Civil Law it was anciently provided, that he who, by purchase, gift, or any other legal means, had obtained a thing from one who was not the owner, but whom he deemed so, should acquire, by use, a title to such thing ; provided that in the case of a moveable, he had been in bonaf.de possession for the space of one year, either in Italy or the provinces ; and for the space of two years, in the case of an immoveable, but only if held within the limits of Italy. This was provided in order to prevent the ownership of things remaining in uncertainty. Now these, by our more ancient legislators, were thought terms of sufficient length to enable owners to make search for their property ; we, however, have come to a better decision, as well from a desire to protect lawful owners from being too quickly defrauded of their property, as to prevent this boon of acquisition from being confined to any set locality. We, therefore, have published a Constitution as to this matter, wherein it is provided, that the property in things moveable shall be acquired by the use of them for the space of three years ; and that in things immoveable by the " possession of long time," that is, ten years, 72 THE INSTITUTES OF JUSTINIAN. [BOOK II. for persons present (i. e. f living in the same province), and twenty years for persons absent (. e. y in different provinces.) By these means, if a just ground of possession precede, the property in things may be acquired, and this not in Italy alone, but in every country subject to our imperial sway. Section I. In certain cases, however, although a man have been in possession with indisputably good faith, yet use, however long, will never found a prescription : as in the case of one who has in his possession a free person, a thing sacred or religious, or a runaway slave. Section II. Things stolen, also, and such as have been taken with violence, cannot be acquired by use, although they have been held in bond fide possession during the length of time required by our Constitution : for prescription to such things as have been stolen, is forbidden both by a Law of the Twelve Tables, and also by the Lex Atinia ; and, as to such as have been taken with violence, by the Lex Julia et Plautia. When, however, it is said that the title by prescription to things which have been stolen, or seized with violence is forbidden by these laws, it is not meant that the thief only, or the disseisor, cannot so acquire the property, because such are incompetent to take by prescription, for another reason, namely, that their possession is not bond fide ; the meaning is, that no other person, although he may have obtained them bond fide, by purchase, or otherwise, is able to acquire the property by use. Wherefore, in the case of moveables, it cannot easily happen that a bond fide possessor should gain the property in them by use. For he who sells, or in any other way makes over a thing which belongs to another, is guilty of a theft upon that other. But even this rule, however ^is sometimes liable to exceptions. For example, if an heir deeming a particular movable to be part of the inheritance, but which in reality had been TITLE 6.] OF TITLE BY PRESCRIPTION. 73 only lent, let to, or deposited with the deceased, shall have sold, given, or passed it as dowry to one who receives it bond fide, there can be no doubt but that he who so received, can acquire the property in it by use. Because, the thing itself is not -tainted with the vice of theft, as the heir who bond fide alienated it as his own, committed no theft. So, also, if he who has the usufruct of a slave-girl, should sell or give away her child, in the full belief that it belonged to him, he is guilty of no theft : for theft cannot be constituted without the intention to commit it. It may happen, also, in many other ways, that a person may, without the commission of theft, transfer the property of another, and give a right of property by use to the possessor. With reference, however, to immoveables, prescription may more easily accrue ; as, in the case of a person who, without violence, takes possession of an estate vacant, by reason either of the absence or negligence of the owner, or of his death without heirs. Now, although his own possession is not bond fide, for he is well aware that he has seized upon land not his own, if he make a transfer to one who takes it bond fide, this latter may, by long possession, acquire the property in it, because what he has received has neither been stolen, nor seized by violence. For the opinion of certain of our ancient lawyers, that there could be a theft of lands, or things immoveable, is now abandoned ; and it is, therefore, pro- vided by the Imperial Constitutions, that the benefits of long and undoubted possession shall not be taken away from those who are in possession of immoveables. Section III. A title by prescription may, sometimes, be founded even in a thing which has been taken, or seized by violence ; as, for example, if it have come again into the power of the true owner ; for then, the thing is reported purged from the contamination of theft, and acquisition by use may take place. K 74 THE INSTITUTES OP JUSTINIAN. [BOOK II. Section IV. Things belonging to the imperial treasury cannot be acquired by use. But Papinian held that if, before bona vacantia, *. e., things escheatable have been duly reported to the treasury, a bond fide purchaser has livery of any of them, he may acquire a title by prescription. The Emperor Antoninus Pius, and the Emperors Severus and Antoninus have issued Rescripts confirming this opinion. Section V. It is lastly to be observed that, in order to give a title by prescription to one who has purchased a thing bond fide 3 or got possession by any other legal method, the thing itself must be free from all taint of " vice," that is, liability to exception. Section VI. The mistake of thinking a bad cause of posses- sion to be a good one, does not give rise to acquisition by use ; as when a person is in possession, under the belief that he has bought, when he has really not bought ; or that the thing was a gift, when it has never really been given him. Section VII. Long possession, which has begun to reckon in favour of a deceased, is continued in favour of the heir, or of him who has the equitable inheritance, even though he may know the immoveable to be the property of another. But if the possession of the deceased had no just, or bond fide commencement, the possession is of no avail to heir, or equitable inheritor, though he were ignorant of the vicious possession of the deceased. A similar enactment in our Imperial Constitutions provides, that the time of usucapion, or prescription to moveables also, shall be continued in the same way from the deceased to his successor. Section VIII. As between vendor and purchaser, the Emperors Severus and Antoninus have ordained by Rescript that the time of possession of the vendor, shall be conjoined with that of the purchaser. Section IX. By an edict of the Emperor Marcus Aurelius, it is enacted that he who purchases from the public treasury TITLE 7.] OP DONATIONS. 75 a thing belonging to another, may repel the true owner by an exception of prescription, provided five full years have elapsed since the sale. But the Emperor Zeno, of sacred memory, has by a Constitution of his, fully provided that those who receive any thing from the public treasury, by sale, gift or any other title, may be at once secure, and certain of success, whether they sue, or are sued in any action. While those who imagine that they have grounds of action, either as proprietors, or mortgagors of things aliened, may com- mence a suit against the public treasury at any time within four years. Also in an Imperial Constitution, which we ourselves have lately published, we have made, with reference to those who have received any thing from our household, or from that of the Empress, a provision similar to that in the abovementioned Constitution of Zeno, as to things alienated from the public treasury. TITLE 7. OF DONATIONS. ANOTHER way of acquiring property is by Donation ; of which there are two kinds : the one, donation mortis causd that is, made in contemplation of death ; and the other, non mortis causd that is, not made in contemplation of death. Section I. A donation mortis causd, is that which is made under an apprehension of death; as when a man gives a thing upon condition, that if the donor die, the donee shall 76 THE INSTITUTES OF JUSTINIAN. [BOOK II. possess it absolutely ; but that, if the donor should survive, or repent him of the gift, he shall recover his property in it ; and the like also in the event of the donor out-living the donee. Donations mortis causa are now made strictly analogous to legacies. For, since it was a moot point with jurists, as to whether they should be considered in the light of gifts, or of legacies, partaking as they do in certain respects of the nature of both ; and since some classed them under the one head, and some under the other, we have, by our Constitution, decreed that such donations be reckoned, in almost every respect, amongst legacies, and be made in such manner and form as our said Constitution directs. In few words, then, a donation mortis causd is effected when a man so gives, as to show that he had rather the thing given should remain in his possession, than that the donee should have it ; but still wishes such donee to have it, in preference to his heir. Of this kind is the donation which, in Homer, Telemachus makes to Piraeus : He (when Piraeus ask'd for slaves, to bring The gifts and treasures of the Spartan king) Thus, thoughtful, answered ; Those we shall not move, Dark, and unconscious of the will of Jove. We know not yet the full event of all : Stabb'd in his palace, if your prince must fall, Us and our house, if treason must o'erthrow, Better a friend possess them than a foe. But on my foes should vengeance Heaven decree, Riches are welcome then, not else, to me ; Till then, retain the gifts. Pope's Odyssey, B. xvn. Section II. The other kind of donations are those made in no apprehension of death, and are called donations inter vivos t, e. t between living persons. These admit of no comparison with TITLE 7.] OF DONATIONS. 77 legacies ; and, if duly perfected, cannot be revoked at pleasure. Now they are said to be duly perfected, if the donor have manifested his will either in writing, or otherwise. Also our Constitution has enacted, that a donation inter vivos shall, like a sale, involve the necessity of delivery ; in such wise, however, that even if delivery be not made, it may have the fullest and most absolute effect, and render it incumbent on the donor to make delivery of it. And although the Constitutions of previous Emperors have enacted that these donations should be registered in the public rolls, if they exceeded 200 solidi (210 16 5 . 8d.} in value, our enactment has raised the limit to 500 solidi ; so that, for a gift which does not exceed this sum, registration is unnecessary : it alludes, also, to certain donations which have no need of registration at all, but have the most complete validity of themselves. We have passed, also, many other fresh rules for the more unfettered extension of donations; all of which may be collected from those of our Constitutions which we have published on this subject. It remains, however, to be observed, that even though donations be made in the most perfect and absolute manner, if those on whom the bounty has been conferred prove uncrrate- ful, we have, by our Constitution, granted permission to donors in certain specified cases, to revoke such donations : and this is to the end, that they who have bestowed their property on others may not suffer, at their hands, loss and injury, of the kind set forth in our Constitution. Section III. There is, also, another kind of donation inter vivos, which was wholly unknown to the ancient jurists, but was introduced by some of the later Emperors. It was called the donation ante nuptias or, " before marriage ;" and involved the tacit condition that it should take effect so soon only as the marriage had been celebrated. It was ante nuptias, there- fore, because it preceded marriage, and never took place after the celebration. But, as it was permitted to increase dowries 78 THE INSTITUTES OF JUSTINIAN. [BOOK II. even after marriage, our father, the Emperor Justin, was, by a Constitution, the first to permit donations ante nuptias to be also increased during marriage ; but the donation still kept what was now an unmeaning name, for it was still called ante-nuptial, while this increase had been made to it during marriage. We therefore, being minded to make our imperial sanctions as complete as possible, and wishing to give things names fitted to them, have enacted that such donations may not only be increased during marriage, but may then also first be made ; and that they shall be known, not as donations ante- nuptias, but propter nuptias (i. e., on account of marriage) ; and that they shall thus be made like dowries in this respect, that while dowries may not only be increased, but also first made during marriage, so donations propter nuptias may now not only precede marriage, but, after its celebration, may be increased, or even made. Section IV. There was formerly another mode of acquiring property by the civil law, namely, by survivorship ; thus if one who owned a slave in common with Titius, had himself alone enfranchised that slave, whether by the vindicta, or by testament, in such case his share in such slave was forfeited, and accrued to Titius. But, as it was an example of most injurious tendency, that both the slave should be barred of liberty, and masters of more humane dispositions should suffer loss, while the more harsh were gainers, we have deemed it expedient, by our Imperial Constitution, to apply a pious curative to what seemed so full of objections ; we, then, have devised a way, whereby as well the owner who grants manumission, as his co-proprietor, and the enfranchised slave, may all share in our beneficence. Liberty, then, in favour whereof even former legislators have clearly often broken through strict rules, shall in reality be granted to the slave ; he, too, who has granted this gift of liberty, shall be gladdened by seeing it upheld ; while the co-proprietor shall be indemnified by TITLE 8.] OF THE POWER TO ALIENATE. 79 receiving a value for the slave, in proportion to his share in him, and in accordance with the rates which we, in our Constitution, have set down. TITLE 8. OF THE POWER TO ALIENATE. IN some cases it happens that he, who is the owner of a thing, has not the power to alienate it ; while, in others, he who is not the owner, has that power. For instance, the husband is forbidden, by the Lex Julia, to alienate the lands which form a wife's portion, without the consent of the wife ; although such lands belong to him, having been given him as a marriage portion with his wife. But we, by certain amendments in this Lex Julia, have made it more truly efficacious. For while that law had reference only to immoveables situated in Italy, and forbade alienations made against a wife's will, or mortgages of such possessions even with her will ; we have a mended all these points, by enacting, that any such alienation or charge shall be forbidden in the case of property situated even in the provinces ; and that no such alienation or charge shall be lawful even if made with the consent of the wife, lest the weakness of the female sex be made an instrument for the detriment of their interests. Section I. On the other hand, however, a creditor may, in accordance with the terms of an agreement, alienate a pledge, although the thing is not his own property. This power, however, may perhaps be considered to arise from the will of 80 THE INSTITUTES OF JUSTINIAN. [BOOK II. the debtor, who when he first made the contract agreed that the creditor should have the power to sell the thing pledged, if the money advanced were not repaid. But lest, on the one hand, creditors should be lu'ndered in the acquisition of that which is their due, or on the other, debtors should seem to lose their property too easily, we have provided, by our Imperial Consti- tution, that there shall be a certain fixed method of procedure, by which the sale of pledges may lawfully be effected ; and by the tenor of this enactment, abundant provision is made for the interests as well of creditors as debtors. Section IL It must now be observed that a pupil, male or female, has power to make any alienation without the authority of the tutor. If, therefore, a pupil lend money to any one, without the authority of the tutor, such pupil contracts no obligation ; because he has not the power to vest the property of the money in the borrower. Such monies, therefore, if they still exist, can be recovered by a real action, or vindication. But if the monies so lent, have been consumed by the borrower, and that too bond fide, they may be recovered by a personal action, or condiction. If, in the latter case, they have been consumed maid fide, then the borrower may be sued in an action ad exhibendum i. e., for production of the thing borrowed. Section III. On the other hand, pupils, of either sex, may lawfully acquire a property in anything whatsoever, without the authority of their tutors. When, therefore, a debtor makes a payment to a pupil, such debtor must have the authority of the tutor ; or otherwise he is not legally discharged. Now this point was, on the clearest grounds, decided by us, in an Imperial Constitution which we published to the advocates of Csesarea,at the suggestion of that very eminent man, Tribonian, Quaestor of our sacred palace : wherein it was enacted, that the debtor of a pupil might legally make a payment to the tutor or curator of such pupil, provided he sained permission, TITLE 9.] PERSONS BY WHOM PROPERTY MAY BE ACQUIRED. 81 by the certificate of a judge previously obtained, free of all expense to the minor ; and that, if all these forms were observed, a payment in accordance with the judge's decree, should afford the fullest security to the debtor. If, however, payment have been made to a pupil, otherwise than we have sanctioned, the pupil who has the money still safe in his custody, or has become the richer by it, may, if he again make claim for the same sum, be defeated by an exception of fraud. But if he have foolishly squandered the money, or lost it by theft, an exception of fraud will stand the debtor in no stead, because he made his payment inconsiderately, without the tutor's authority, and in contravention of our rules. On the other hand, pupils of either sex can make no payments without the tutor's authority; for that which they do pay, without such authority, does not become the property of him who receives it ; inasmuch as they have the privilege of alienating no single thing without such authority. TITLE 9. OF THE PERSONS BY WHOM PROPERTY MAY BE ACQUIRED. THINGS may be acquired not by ourselves alone, but by those also who are under our power ; by slaves, of whom we have the usufruct; by freemen also, and by slaves belonging to others whom we possess bond fide. Let us now, therefore, examine carefully as to all these persons. Section L Formerly, then, all that children, of either sex, L 82 THK INSTITUTES OP JUSTINIAN. [BOOK II. who were under the power of their parents, acquired, excepting only the peculium castrense (i. e., property acquired by the son in war), was acquired, without distinction, for their parents. And these rights were so strictly vested in the parents, that they had full power to give, sell or transfer in such manner as they pleased, anything that had been acquired through one of their children; and such gift, sale, or transfer might be either to another child, or to a perfect stranger. As this rule seemed to us inhuman, we have, by the publication of a general Constitution, given relief to children, and yet upheld that honour which is due to parents. Our enactment, there- fore, is, that anything accrues to the child, by means of the fortune of the father, shall, in accordance with the ancient usage, be acquired absolutely for the father ; for what hard- ship can there be in enacting, that the wealth which has sprung from the father's supplies should revert to him ? But what thing soever the son of a family acquires, in any other way, he shall acquire the usufruct for his father, but the absolute property shall remain in the son ; so that what one has gained by hard labour, or by good fortune, shall not to his detriment, be transferred to another. Section II. We have also laid down some rules with res- pect to the interest of children in their emancipation ; for, in accordance with former Constitutions, the father had the power, if he so willed, on the emancipation of his children, to retain for himself one-third of the things which were exempt from paternal acquisition, deducting it as the price of emancipation. Now it seemed, in sooth, a cruel thing that a son should, by emancipation, be deprived of a third part of his property, and that he should lose in fortune, what he gained in honour, by becoming independent through emancipation. We, there- fore, have enacted, that the parent shall henceforth retain one- half, in lieu of one-third of such acquisitions ; but retain it as usufructuary, and not as proprietor. So, therefore, the whole TITLE 9.] PERSONS BY WHOM PROPERTY MAY BE ACQUIRED. 83 property will remain in the son, without any diminution, while the father will enjoy the benefits of a share larger than before , of a half, namely, in lieu of a third. Section III. Whatever, also, our slaves acquire, whether by delivery, contract, or in any other way, is acquired for us ; and this, even though we are ignorant of, or averse to, such acquisitions; for the slave himself, being in the power of another, can have no property of his own. Also, if he be instituted heir, he cannot enter on the inheritance save at his master's bidding ; and if, at the bidding of his master, he do enter, the master acquires the inheritance, precisely as if he himself had been instituted heir. In like manner, a legacy left to a slave is acquired by the master. Further it is to be observed that, by those who are in our power, we acquire not the property alone, but also the possession. For what thing soever they have acquired in possession, that also we are deemed to possess ; wherefore, through their means, we may acquire a title by long use and prescription. Section IV. In regard to those slaves in whom we have the usufruct only, it has been held, that whatever they acquire by means of our property, or by their own labour, shall belong to us; but that what they have acquired from any other source, shall belong to their real owner. Thus, if a slave be instituted heir, or receive a legacy, or gift, the inheritance, legacy, or gift will belong not to the usufructuary, but to the proprietor. The same rule holds with regard to any one who is bond fide in our possession, whether he be free, or another man's slave ; for the rule which holds as to the usufructuary, holds also as to the bonafide possessor ; therefore, whatever is by such acquired, other than from the two sources above-mentioned, becomes the property of the man himself, if he be free, or of his master, if he be a slave. A bond fide possessor who, by long use or prescription, has gained the property in a slave, acquires, as absolute owner, all that the slave acquires. But 84 THE INSTITUTES OF JCSTINIAN. [BOOK II. the usufructuary master can gain no property in his slave by use or prescription ; first, because he has not the strict posses- sion, but merely the right of usufruct ; and secondly, because he knows that the slave belongs to another. But what we acquire by means of those slaves in whom we have the usu- fruct, or of those whom we possess bond Jide, or by means even of any free person, who acts bond Jide as our slave, we acquire not in ownership alone, but in possession. We say this, both as to slaves and freemen, with reference only to the distinction before laid down, and speak but of those acquisitions which they have made, either by means of our property, or by their own labour. Section V. From the above remarks it is clear, that we can by no means acquire by free persons not under our power, and whom we do not possess bona Jide ; nor can we do so, by slaves belonging to other people, of whom we have neither the usufruct, nor the just possession. And this is the meaning of the assertion, that no acquisition can be made by means of a stranger ; except, indeed, that in accordance with a Constitution of the Emperor Severus, possession may be acquired for us by a free person, as for instance by an agent or procurator, not only with, but even without, our knowledge ; and by this possession, we acquire the property, provided it were the owner who delivered the thing ; or a title by use and prescription if it were not Section VI. The remarks which have been made, as to the modes of acquiring property in particular things, will suffice for the present. For, afterwards, we shall more conveniently treat of legacies, by which, also, we acquire a property in particular things, and ofjidei-commissa bequests in trust by which particular things are left to us. Let us now show by what means things may be acquired per universitatem that is, wholly, and in gross. If, for example, we are made heir, or if we sue for possession of the property of another, or TITLE 10.] OF TESTAMENTS. 85 arrogate a son, or if the goods of any are adjudged to us in order to preserve his liberty, in all these cases all that did belong to the person passes to us, whole and entire. First, then, let us treat of inheritances, which are of two kinds, such, namely, as accrue to us by testament, and such as come by intestacy. We will first treat of those which come to us by testament; and in doing this, it is necessary to begin by an explanation of the formalities required in making testaments. TITLE 10. OF TESTAMENTS. THE word " Testament," is derived from the Latin testatio mentis an evidence of the will. Section I. Now, that nothing of ancient usage be absolutely forgotten, it is needful to remark that in former days two kinds of testament were in use ; whereof the one was used in times of peace and quiet, and was named calatis comitiis, i. e. from the convention of the comitia: the other was used at the moment of setting out to battle, and was called procinctu.ni ; a third kind was afterwards added, called the testament per CBS et libram, z. e., " by brass and balance," which was effected by emancipation, that is, by a fictitious sale in the presence of five witnesses and of the libripens or, " balance-holder" all Roman citizens who had arrived at years of puberty and also in the presence of him who was called emptor families " the purchaser of the inheritance." The two former kinds of testaments fell into disuse, in very distant times ; and that " by 86 THE INSTITUTES OP JUSTINIAN. [BOOK II. brass and balance," although it continued longer in use, has still in great measure ceased to be observed. Section II. The three kinds of testament before named had their origin in the Civil Law : afterwards, however, in accordance with the Praetor's edict, another kind was used. For bj the Honorary Law, or edicts of the Curule Magistrate, the signature of seven witnesses was deemed enough, without the requirement of any emancipation. By the Civil Law, however, the signature of witnesses was not essential. Section III. But when, in course of time, partly by custom and partly by reforms in the Imperial Constitutions, the Civil and Praetorian Law began to be blended together, it became established, that every testament should be drawn up at one and the same time, as the Civil Law required ; that there should be seven witnesses present, who should subscribe their names, as was brought into usage by the Constitutions; and that these seven should affix their seals to the will, in compliance with the Praetor's edict The law, therefore, concerning testaments seems to be tripartite ; the necessity for witnesses, and for their presence at one, and the same time, in order to give validity to a testament, springs from the Civil Law; the subscriptions of testator and witnesses, are demanded in compliance with the Imperial Constitutions ; while the seal ings of the witnesses, and their number, are ordained by the Praetorian edict Section IV. To all these solemn forms, however, we have exacted by our Constitution, that for the better security of testaments, and the prevention of frauds, there be this addition ; to wit, that the name of the heir be inserted in the handwriting either of the testator, or of the witnesses ; and that there be a full observance of all the forms set forth in that our Constitution. Section V. All the witnesses may use the same stamp in affixing their seals to a testament For, as says Pomponius, TITLK 10.] OF TESTAMENTS. 87 what if the device on all seven stamps were the same ? A witness, also, may use another person's seal. Section VI. They may be allowed to act as witnesses who are in possession of testamenti factio, i. e., who can legally take or dispose of property by will. But no woman, person under puberty, slave, madman, person deaf and dumb, prodigal restrained from spending his own property, nor one whom the laws have branded as worthless and incompetent to witness, can be admitted as witness to a testament. Section VII. If, however, one of the witnesses to a testa- ment, were thought to be free at the time of attestation, but afterwards appeared to have been then a slave, the Emperor Hadrian, in a Rescript to Catonius Verus, and afterwards the Emperors Severus and Antoninus, by their Rescript, in like case decreed, that they, of their imperial generosity, would aid such a defect in a testament, and cause it to be esteemed as valid, as if it had been regularly made ; and this because, when the signatures were affixed to the testament, this witness was taken, in the estimation of all men, to be free ; and there was, at that time, no one to dispute his social standing. Section VIIL A father, and a son under his power ; or two brothers, under the power of the same father, may both be witness to the same testament ; for there can be nothing to hinder several persons, from one and the same household, acting as witnesses in a business which affects none of their family. Section IX. No one, however, can be admitted as a witness, who is under the power of the testator. And if a son, after he has obtained his discharge from the army, make a will wherein he bequeaths his castrense peculium, i. e., that private property which he has acquired in war neither his father, nor any one under his father's power, can legally be a witness. For, in this case, the attestation of members of the same family is disallowed. 88 THE INSTITUTES OF JUSTINIAN. [BOOK II. Section X. An heir cannot be admitted to attest the testament wherein he is appointed heir ; nor can his father, in whose power he is ; nor his brothers, if they are under the power of the same father ; and this, because the whole business of making a testament is now-a-days considered as a transac- tion between the testator on the one part, and the heir on the other. Formerly, however, there was great confusion ; for although the ancients never would admit the attestation of the emptor families i. e. t " purchaser of the inheritance" nor of any of those who were connected with by subjection to the family authority, still they permitted the real heir to attest, as also any of those connected with him by the ties of family. Still, however, they who so granted this privilege, exhorted such witnesses to be most careful not to abuse it. We, however, by a correction of this usage, have brought within the strictness of legal enactments, that which they sought to curb by mere persuasion. For in imitation of the ancient law with reference to the emptor families, the mere purchaser of the inheritance we now refuse to admit, as witnesses in their own behalf, either the proper heir, who represents the ancient emptor families, or any person allied to him by the ties of family. On this account it is that we have suffered the former Imperial Constitutions on this subject, to be inserted in our code. Section XL We do not, however, refuse the attestation of legatees, or of those for whose benefit trusts (Julei-commissa) are made ; or of any who are allied to them ; and this, because they are not universal heirs and successors. Nay, in one of our Constitutions, we have specially accorded this privilege to legatees, and to those who are to benefit by trusts ; and we accord it, with still more readiness, to those who are in the power of such, and to those in whose power they are. Section XII. It matters not whether a testament be written upon tablets, paper, parchment, or any other substance. TITLE 11.] OF THE TESTAMENTS OF SOLDIERS. 89 Section XIII. A person, also, may execute any number of copies of the same testament ; provided in every case the forms prescribed be duly observed. This is at times a necessary thing : as, when a man about to embark on a voyage, is anxious both to take with him, and also to leave at home, the declaration of his last wishes : the same may occur in numberless other circumstances, arising from the several necessities of mankind. Section XIV. This then, may suffice with reference to such testaments as are in writing. If, however, any one be desirous to make a testament, valid by the Civil Law, but still without writing ; let such an one be well assured, that if in the presence of seven witnesses, he signify his will by nuncupa- tion i. e. } verbal declaration, such declaration, will constitute a testament perfectly valid according to the civil law, and confirmed by Imperial Rescripts. TITLE 11. OF THE TESTAMENTS OF SOLDIERS. THE aforementioned strict observation of all due formalities in the construction of testaments, has been dispensed with by the Imperial Constitutions, in favour of military persons, on account of their excessive lack of skill in such matters. For, although such persons neither employ the legal number of witnesses, nor observe any other prescribed solemnity, still their testament is valid, provided it be made when they are upon actual service ; a provision, on good grounds, introduced by a Constitution of our own. Thus in what manner soever a M 90 THE INSTITUTES OF JUSTINIAN. [BOOK. II. soldier's last will is expressed, whether in writing or not in writing, the testament prevails in accordance with his intention. But during such times as soldiers are not on actual service, but when they are living in their own homes or elsewhere, they are by no means entitled to claim this privilege. Soldiers also, though sons of a family, and so under power, gain from military service the right of making a testament ; but according to the general law, the same formalities must be observed which we have just now spoken of as essential to the testaments of civilians. Section I. As to the testaments of soldiers, the Emperor Trajan wrote as follows, in his Rescript to Statilius Severus : " The privilege accorded to soldiers, that their testaments, " however made, shall be deemed valid, must be interpreted to " mean, that it must first be evident, that a testament of " some sort has been made ; for an unwritten testament may " be made even by those who are not soldiers. If, therefore, " it should appear that the soldier, as to whose property the " action, now pending before you, was brought, did, in the " presence of the witnesses, expressly summoned, testify his ' intentions, and declare by word of mouth whom he wished " to be his heir, and what slave he desired to have enfranchised, " he shall thus be deemed to have made a testament without " writing, and his desires shall be upheld. But, if he merely " said to some one, as in conversation it often happens, * I " ' appoint you my heir,' or * I leave you all my property,' such " expressions must not be regarded as a testament And none " can be more deeply interested than the soldiers themselves, " that a precedent of this sort should not be allowed ; or other- " wise witnesses might readily be forthcoming after the death " of any soldier, who would declare that they had heard him " leave his property to any one they pleased to name ; and " thus the real intentions of the deceased might easily bo " defeated." TITLE 11.] OF THE TESTAMENTS OF SOLDIERS. 91 Section II. A soldier, though deaf and dumb, may make a testament. Section III. But this privilege is accorded by the Imperial Constitutions to soldiers, so long only as they are on service, and in camp. If, therefore, veterans after their discharge, or those who are still soldiers but not in camp, wish to make their testaments, they must fulfil all the forms required in general of every Roman citizen. Also, if a soldier make his testament in camp by a mere expression of will, and without the usual formalities, such testament will remain valid for one year only after the maker's discharge. How, then, will it be in the case of a soldier who, having made a military testament, dies within a year of his discharge, while the condition upon which the heir is instituted is not accomplished until after the year ; will such a testament be valid as that of a soldier ? We decide that it will be so valid. Section IV. If a man, before entering the army, have made an informal testament, and afterwards when in the army, and on service should open it, and either add something to, or erase something from, it ; or, if in any other way his will is manifested, that such testament should be valid ; it must needs be affirmed to be so, seeing that it is a re-publication of a soldier's wishes. Section V. If a soldier should be given in arrogation ; or, being the son of a family, should be emancipated, his testament continues valid, as though it were the re-publication of a soldier's wishes ; nor is to be considered as invalidated by the diminution he has undergone. Section VI. We may here make it known, that in imitation of the castrense peculium or military estate both ancient laws and Imperial Constitutions have permitted certain persons to hold a quasi-castrense peculium or quasi-military estate, and some of these have been permitted to make their testaments, even when under the power of others. We, 92 THE INSTITUTES OF JUSTINIAN. [BOOK II. therefore, by our Constitution have more widely extended this privilege ; granting it to all who have this kind of peculium, provided the testaments themselves are drawn up in accordance with the ordinary legal formalities. He, however, who carefully reads this our Constitution, may make himself acquainted with every point which has reference to the aforesaid privilege. TITLE 12. OF THOSE WHO MAY NOT MAKE TESTAMENTS. To make a testament is not in the power of all. First, then, those who are in the power of others have not this privilege; insomuch that, even though the parents have granted them leave, they still are barred from making a valid testament Exception, however, must be made of those whom we have already enumerated, and especially of soldiers who are in the power of their parents, for they have, by the Impe- rial Constitutions, permission to dispose by testament of all that they have acquired in actual service. This privilege was first granted by the Emperors Augustus and Nerva, and by the illustrious Trajan, also, to soldiers only on actual service; afterwards, however, by an epistle of the Emperor Hadrian, it was extended to veterans, or those who had obtained their discharge. If, therefore, the son of a family bequeath his peculium castrense, or military estate, it will pass to him who is, in the testament, named heir; but, if he die intestate, and have neither children nor brothers him TITLE 12.] OF THOSE WHO MAY NOT MAKE TESTAMENTS. 93 surviving, his military estate aforesaid will then, in accordance with the general rule, pass to his father, or to him in whose power he is. Whence we may conclude, that such property as a soldier, though under power, has acquired, in actual service, cannot be taken from him even by his father ; nor can his father's creditors sell, or otherwise disturb the son in his possession ; nor, on his father's death, is he forced to share it with his brothers, but it remains the sole property of him who acquired it. And this, although by the Civil Law the peculia or estates, of those under power of parents, are reckoned as part of the property of the parents ; just as the peculium of a slave is reckoned among the goods of his master ; excepting always those particular kinds of peculium which, in accordance with the Constitutions of the Emperors, and especially of ourselves, are prohibited, for diverse reasons, from being so acquired for parents. With the exception, then, of those sons of a family, who have a castrense, or quasi-castrense peculium, z. e., a military, or quasi-military estate, none can make a testament, or if he do so, it is invalid, even though, before his death, he became independent of paternal authority. Section I. Persons, moreover, within the age of puberty, cannot make a testament, because they have not the mental judgment which is needed ; nor can madmen, for they are reft of their senses. The will of one, under puberty, does not become valid, although he arrives at full age before his death ; nor does that of a madman, although he afterwards regain his senses, and then dies. But, if a madman make a testament during a lucid interval, he is then a legal testator; and assuredly a testament made before the madness seized him is good; for an after-fit of frenzy can neither invalidate a previous testament made with all due formalities; nor can it injure the force of any other former act in which the rules of law have strictly been observed. 94 THE INSTITUTES OF JUSTINIAN. [BOOK II. Section II. A spendthrift also, who is interdicted from the management of his own estate, cannot make a testament : but a testament made before the publication of such interdiction will be valid. Section III. A person deaf and dumb, is not always capable of making a testament When, however, we speak of a deaf person, we mean one who is absolutely unable to hear at all, not one who does hear, but with difficulty : so, also, by dumb, we mean one who cannot speak at all, not one who does speak, but with difficulty. For it, not unfrequently, happens, that well-read and learned persons, by various accidents, lose the power of hearing, and of speech. A Constitution published by us, comes, then, to the assistance of such ; so that, through its provisions, they are enabled, in certain cases, and with certain forms, to make testaments, and execute also certain other acts. But if a person, through ill-health, or any other misfortune, should become deaf and dumb, after having made his testament, such testament will nevertheless continue valid. Section IV. A blind man cannot make a testament; unless he observe those forms which the law of our father, the Emperor Justin, has introduced. Section V. The testament of one who is in the hands of an enemy, if made during the continuance of his captivity, is not valid, even though he live to return. But that testament which he made while still in his own country holds good, either by the jus postliminii " the right of return," if he do come back ; or, by the Lex Cornelia, if he perish in captivity. TITLE 13.] OF THE DISINHEBISON OF DESCENDANTS. 95 TITLE 13. OF THE DISINHERISON OF DESCENDANTS. THE observance of all the formalities before laid down will not alone suffice to give validity to a testament ; but he who has a son in his power, must take care either to institute him heir, or by name to disinherit him. Otherwise, if he pass him in silence by, the testament will be inoperative ; and this so absolutely, that if such son were to die, while his father was yet alive, no one could be heir under that testament ; and this, because it was null and void from the first. In olden times, this rule was not observed with respect to daughters, or grand-children of either sex, though descended through the male line ; for though they, whether male or female, were neither instituted heirs, nor disinherited, the testament was not invalidated, but they were entitled to join themselves with the instituted heirs, and so receive a share of the inheritance. Parents, also, were not compelled to disinherit these descendants by name, but might include them all as cateri " the remainder." A child is formally, and by name disinherited, if the words in the will run thus "let Titius, my son, be disinherited" ; or thus " let my son be disinherited," without the addition of the proper name, if the testator have no other son alive. Section /. Posthumous children, also, must either be insti- tuted heirs, or formally disinherited ; and, in this, the condition of all the children is the same ; but, if a posthumous son, or any posthumous descendant of either sex, be passed over, the testament is still valid, at the time of making ; but becomes wholly void by the subsequent birth of a child of either sex. 96 THE INSTITUTES OF JUSTINIAN. [fiOOK II. If, therefore, a woman who is expected to have a posthumous child, should miscarry, nothing can prevent the heirs insti- tuted by testament from entering upon the inheritance Female posthumous children may either be expressly disin- herited, or by using the general term cceteri. If, however, they are disinherited by the use of the general term, some legacy must be bequeathed to them, to show they were not passed over through forgetfulness. But male posthumous children, i. e. t sons, and their descendants cannot be disin- herited otherwise than nominally; to wit, in the form following : " whatever son hereafter may be born to me, let him be disinherited." Section II. They, also, are to be reckoned as posthumous children, who, by succeeding in the stead of the proper heirs, become, as by a quasi-birth, heirs to their parents. As for example ; if a man have under his power a son, and by him a grand-son or grand-daughter, the son, as first in degree, has the sole rights of real heir ; although the grand-son, or grand-daughter by that son, are subject to the same parental power. But, if such son should, in his father's life-time die, or by any means cease to be under his power, the grand-son, or grand-daughter would at once succeed in his place ; and would thus, by what may be called a quasi-birth, obtain the rights of a proper heir. To the end, therefore, that his testament be not invalidated, the testator who is obliged either to institute his son, or to disinherit him by name, if he would have his testament upheld, is no less obliged to insti- tute or disinherit his grand-sojn or grand-daughter by that son ; lest if the son should die during the testator's life-time, the grand-son or grand-daughter, by succeeding to his place, should by such a quasi-birth, annul the testament This case has been provided for by the Lex Julia Velleia, wherein is given a form of disinherison, similar to that for the disinherison of posthumous children. TITLE 13.] OF THE DISINHERISON OF DESCENDANTS. 97 Section III. By the Civil Law, it is not necessary in a testament either to institute or disinherit children who have been emancipated ; because, being no longer in the father's family, they are no longer proper heirs. But the Praetor ordains, that all children, of either sex, if not instituted heirs, shall be disinherited ; the males by name, and the females under the general term c&teri, " the rest". For, if children have been neither instituted heirs, nor expressly disinherited, the Proator admits them to possession of the property, in opposition even to the provisions of the testament. Section IV. Adopted children, so long as they are under the power of their adoptive father, have the same legal rights as they who are born in lawful wedlock ; they, therefore, must be instituted heirs, or disinherited, in accordance with the rules laid down in regard to natural children. But neither by Civil Law, nor Praetorian edict, are children who are emancipated by an adoptive father, numbered as of his natural children. Whence it comes, that children while living in their adoptive family, are, so far as regards their natural parents, deemed aliens, whom parents are not compelled either to institute as heirs, or to disinherit ; but, when emancipated by their adoptive father, they are then in that position wherein they would have been, if emancipated by their natural father. Section V. Such were the rules which the ancient jurists introduced. But thinking that no reasonable distinction can, in this respect, be made between the sexes, since each has its share in the propagation of the species, and because, by the ancient Law of the Twelve Tables, all children alike were called to the succession in case of intestacy, a law which the Praetors seem to have had regard to, we have made the law plain, and similar in regard both to sons and daughters, and to all the other descendants in the male line, whether actually born, or posthumous; thus all children, whether proper N 08 THE INSTITUTES OP JUSTINIAN. [BOOK II. heirs, or emancipated, must either be instituted as heirs, or be disinherited by name ; and their omission shall have the same effect hi annulling the testaments of the parents, and in taking the inheritance away from the instituted heirs, as would the omission of proper heirs, or emancipated children, whether actually born, or conceived and born afterwards. With reference to adopted children, we have laid down a certain distinction between them, which is explained in our Constitution on Adoptions. Section VI. If, however, a soldier, on actual service, make a testament, and omit to disinherit by name, his children, born or posthumous, but pass them by in silence, and that not from ignorance that he has such children, it is provided by the Imperial Constitutions that his silence shall be equivalent to a disinherison by name. Section VII. Neither a mother, nor a maternal grand- father is compelled either to institute their children heirs, but may pass them by in silence : for the silence of a mother, a maternal grand-father, and of all other ascendants on the mother's side, is equivalent to express disinherison by the father. For that a mother should be obliged to disinherit her children if she does not institute them her heirs, or a maternal grand-father to disinherit his grand-children by a daughter, is required neither by the Civil Law, nor by the Praetorian edict which gives possession of goods, in contravention of a testament, to those children who have been passed over in silence. But children are, in this case, provided with another remedy against the testament, which shall be set forth hereafter. TITLE 14.] OF THE INSTITUTION OF HEIRS. 99 TITLE 14. OF THE INSTITUTION OF HEIRS. A MAN may institute as his heirs as well slaves as freemen ; and such slaves may belong to another as well as to himself. Still, according to the general opinion, no master was formerly able to institute his own slaves, unless he also gave them their liberty ; but, at present, by virtue of our Constitution, a master may institute his slave as heir, without any express emancipa- tion of him. This rule we have introduced not from any love of innovation, but because it seemed more equitable ; and Paulus,in his commentaries onMassurius, Sabinus andPlautius, mentions that such also was the opinion of Atilicinus. Also by the expression " our slave," is meant even one in whom the testator had the bare ownership while another had the usufruct. One case, however, there is, in which the institution of a slave by his mistress is void, although his liberty be expressly granted ; it is that provided for by a Consti- tution of the Emperors Severus and Antoninus, in the following words : " Reason ordains that a slave, accused of adultery with his mistress, shall not be enfranchised by that mistress, who is so alleged to have been the sharer in his guilt ; not, at least, before sentence has been pronounced." It, therefore, follows that the institution as heir of such a slave by his mistress, is null and void. Also, the expression " slave, of another," is used to denote a slave of whom the testator had the usufruct, though not the property. Section I. When a slave has been instituted heir by his master, and continues still a slave ; at his master's death, by virtue of the testament, he obtains his freedom, and 100 THE INSTITUTES OF JUSTINIAN. [BOOK II. becomes the necessary heir ; if, however, such slave have been manumitted in his master's lifetime, he may use liis pleasure in accepting or refusing the inheritance ; for he does not become a necessary heir, as he does not by his master's testament get both freedom, and the inheritance. But, if such slave have been aliened, he must enter upon the inheritance at the bidding of his new master, who thus, by means of his slave, becomes the heir of the testator. For a slave who has been aliened, cannot, by virtue of the testament of the master who aliened liirn, obtain either liberty, or an inheritance to his own use, even though freedom were expressly given by such testament; because the master who aliened him, has shown that he has, thereby, given up all intention of giving him his liberty. The slave, also, of another, when appointed heir, if he remain in the same condition, must enter upon the inheritance at his master's bidding ; and if such slave be aliened, either in the lifetime of the testator, or after his death, and before he has actually entered upon the inheritance, he must then enter upon it at the bidding of his new master. But, if such slave have received manumission, either during the testator's life- tune, or after his death, and before he has entered upon the inheritance, he is at liberty to use his pleasure in its acceptance or refusal. Section II. The slave of another may be legally instituted heir after the death of his muster ; for the slaves of an inhe- ritance not entered upon, are capable of taking by testament ; and this, because an inheritance not entered upon, represents the person of the deceased, and not that of the future heir. Thus the slave even of a child in the womb, may be instituted heir. Section III. When a slave,the property of several masters, all capable of taking by testament, is instituted heir by a stranger, such slave acquires for each master at whose command he took it, a share of the inheritance, corresponding to their several interests in him. TITLE 14.] OF THE INSTITUTION OF HEIRS. 101 Section IV. A testator may institute one heir, or several ; the number being restricted by his wishes only. Section V. An inheritance is generally considered as divided into twelve parts, called uncice, or ounces ; the whole, which comprehends, and is] composed of these fractional parts, is called an as, or pound. Each of these parts, from the uncia, or single fraction, up to the as, or full unit, has its peculiar name ; e. g. Uncia, == TJ == one unce - Sextans, = ^ = two ounces. Quadrans, = \ = three ounces. Triens, . = ^ '= four ounces. Quincunx, = five ounces. Semis, = ^ = six ounces. Septunx, = seven ounces. Bes (bistriens,) = ^ = eight ounces. Dodrans, f = nine ounces. Dextans, = ten ounces. Deunx, = eleven ounces. As, = 1 = twelve ounces. It is not, however, essential that this as, or total, should be always divided into twelve parts ; for the as, may consist of as many of these divisions as the testator wishes. If, for example, a testator institute but one heir, and style his inheritance semis, or of six parts ; these six parts will still make up the whole as ; and this, because no one can die in part testate, and in part intestate, unless it be a soldier, in the consideration of whose testament intention only is looked to. So, on the contrary, a testator may divide the as, or total of his estate, into as great a number of parts as he will. Section VI. If a testator have instituted several heirs, it is essential that he make a division of his effects, specifying what shares he intends for each, provided he does not intend 102 THE INSTITUTES OP JUSTINIAN. [BOOK II. that all the heirs should take equal shares. It is, however, clear, that if no special division be made, all the heirs will take equally. Also, if the shares of some be expressly stated, but another, who is nominated heir, has no portion assigned to him, he will take that fractional part which may be lacking to complete the as. Also, if several nominated heirs have no share allotted them, they will take, and share among them, such remaining fraction as may exist as aforesaid. If, however, the whole as be given among certain of the nominated heirs, and there be no fraction left for such as have no shares specified, then shall such be entitled to one moiety of the whole estate, while they whose shares are specified, shall take only the remaining moiety. And if an heir, whose share under a will is not specified, be nominated in the testament in the first place, or the middle, or the last ; that place is wholly immaterial, such part as is not specifically bequeathed in the testament is invariably looked upon as his. Section VII. Let us now inquire what the law would direct in the event of a part of an inheritance remaining unbequeathed, while each of the instituted heirs has got his share assigned him ; as, for instance, if three heirs were instituted, and a fourth given to each. It is clear that here, the undisposed part would vest in each of the three, in proportion to the share bequeathed him, and it would be exactly as if each had been nominated heir of a third. So, on the other hand, if several heirs be instituted, and the shares specifically bequeathed to each exceed the as, each heir must submit to a proportionate reduction ; as, for example, if four heirs be instituted, and to each a third bequeathed, it will in reality be the same, as if each of the heirs had been instituted to a fourth only. Section VIII. Again, if more ounces, or parts of an estate, than twelve have been bequeathed, he who is instituted heir, but has no express share, shall be entitled to such amount TITLE 14] OF THE INSTITUTION OF HEIRS. 103 as shall be wanting to make up the second as, or, dupondius of twenty-four parts. So, if more than twenty-four parts be specified, he will be entitled to the amount necessary to make up the third as or, tripondius of thirty-six parts. But all these parts, however numerous, are afterwards reduced to the ordinary as, with its regular division, twelve ounces. Section IX. The institution of an heir may be absolute, or conditional ; but it cannot be from, or to a fixed time ; as, for instance, "five years after the date of my death," or " from the calends of such," or, " to the calends of such a month." The time thus added is looked upon as surplusage, and the institution operates as though unconditional. Section X. An impossible condition in the institution of heirs, the disposition of legacies, the creation of trusts, and the conferring of liberty, is considered as if not inserted at all. Section XL When several conditions are attached to the institution, and placed conjunctively ; as, for example, " if this be done, and also that and that" : in such case, all the conditions must be complied with. But if they are placed disjunctively; as, "if this or that be done"; it will be, sufficient to obey any or either. Section XII. A testator may institute as his heirs, persons whom he has never seen ; as, for instance, his brother's sons, born in a foreign land, and perfectly unknown to him ; for such want of knowledge on his part will not serve to make the institution null. 104 THE INSTITUTES OP JUSTINIAN. [BOOK II. TITLE 15. OF VULGAR SUBSTITUTION. A MAN may, by testament, appoint several degrees of heirs ; as, for instance, " if Titius will not be my heir, let Masvius be so" ; and he may proceed in such substitutions so long as he thinks fit ; nay, in the last place, he may, in default of others, institute a slave as necessary heir. Section I. A testator may substitute many in the place of one ; or one in the place of many ; or one in the place of each of the instituted heirs; or, lastly, he may, of the instituted heirs, substitute each reciprocally to the other. Section II. A testator, who has instituted several heirs with unequal portions, and who substitutes them reciprocally, each for other, but makes no mention of the shares they are to take in the substitution, is considered to have given implicitly by substitution, the same shares which he did give in the institution ; and such was held by the Emperor Antoninus in his Rescript. Section III. If to an instituted heir, a co-heir be substituted, and again a third person substituted to that co-heir, the Emperors Severus and Antoninus have by Rescript ordained, that such substituted heir shall be admitted to the portions of both co-heirs, without distinction. Section IV. If a testator institute as his heir, the slave of another man, being under the belief that such slave was enfranchised ; and if, in case such slave do not take the inheri- tance, he substitute Mievius in his room ; then, if the slave, at his master's bidding, were to enter upon the inheritance, TITLE 16.] OF PUPILLARY SUBSTITUTION. 105 Msevius, the substitute, would be admitted to a moiety. For the words " if he do not become my heir," in the case of one whom a testator knew to be under the power of another, are held to mean, " if he will neither become my heir himself, nor cause another to be my heir" ; but in the case of one whom the testator believed to be a free-man, the words mean " if my heir will neither acquire the inheritance for himself nor for him to whose power he may afterwards become subject." Such was the decision of the Emperor Tiberius, in the case of his own slave Parthenius. TITLE 16. OF PUPILLARY SUBSTITUTION. A TESTATOR can substitute an heir in place of his children, under puberty, and in his power, not only in the manner before-mentioned, namely, by appointing some other to be his heir, if his own children will not be so ; but further, if his children do become his heirs, yet die within years of puberty, he may substitute another heir ; as though he were to say ; " Let Titius, my son, be my heir ; but if he should not become my heir, or becoming so, should die before he ceases to be under tutelage, (z. e. within years of puberty) , then let Seius be my heir." Here, if the son do not become his father's heir, the substitute becomes heir to the father ; if, however, the son do enter upon the inheritance, but die within years of puberty, then the substitute is heir to the son. For usage has ordained, that parents may make testaments o 106 THE INSTITUTES OF JUSTINIAN. [BOOK II. for their children, when such children are not of age sufficient to make them for themselves. Section I. Influenced by like reasons, we have inserted into our code a Constitution, which provides, that such as have children, grand-children or great-grand-children, of unsound mind of whatever sex or rank, may make a substitution of certain persons as heirs to such children, after the example of a pupillary substitution, even though they have arrived at years of puberty. But if they should recover, such substitution shall be void, after the analogy of pupillary institution, which has no force when the minor comes to puberty. Section II. In a pupillary substitution, then, made in the manner above-mentioned, there are, so to say, two testaments, the one of the father, the other of the son ; as though the son had instituted an heir for himself; or, at least, there is one testament referring to two subjects, to wit, two inheritances. Section III. If, however, a testator be apprehensive lest, after his death, his son, being yet a minor, should be exposed to the risk of foul play, from having another heir openly given as his substitute ; such testator should openly make a vulgar substitution, and insert that in the first portion of his testament; but, as for the substitution, whereby a substi- tuted heir is named, if his son, being an heir, should die within years of puberty, he ought to write it at the latter part of the testament, and this part should be separately bound and sealed ; it were well also to insert a clause in the first part of the testament, with an admonition that the latter part should not be unsealed so long as his son was yet alive, and under years of puberty. It is, however, undoubtedly true, that the substitution of an heir to a son within years of puberty, is not the less valid because written on the same tablet of the testament in which he is instituted heir ; although, however, it may be fraught with danger to the minor. TITLE 16.] OF PUPILLARY SUBSTITUTION. 107 Section IV. Parents may not only so grant a substitute to their children, under years of puberty, as that even though such children enter upon the inheritance, but die within years of puberty, the heir shall be he whom the testators will ; but they can make a like substitution in regard to disinherited children. In such case, therefore, whatever a disinherited child, within years of puberty, may have acquired by inheritance, by legacies, or by the gifts of friends and relatives, the whole will be the property of the substituted heir. Whatsoever we have said of the substitution of minors, whether they be instituted heirs or disinherited children, is to be understood also as including posthumous children. Section V. No one, however, can make a testament for his children, unless he make one for himself also ; for the testament of a child within puberty, is part and parcel of the parent's testament ; insomuch that, if the father's testament be invalid, that also of the son will be of no avail. Section VI. A pupillary substitution may be made either to each one of a testator's children, or to him only who last dies, within the age of puberty. To each, if the parent be minded that none of them die intestate ; to the last who dies within puberty, if he wish that the strict order of legitimate succession be maintained among them. Section VII. A substitution may be made to a child under puberty, either by name, as thus : " If my son become my heir, and die a minor, let Titius be heir" : or generally, as thus : " Whoever may be my heir, let him be substitute to my son, if he die within puberty." By these latter general words all those are called to the inheritance by substitution, on the son's death, as aforesaid, who having been instituted heir, have entered upon the father's inheritance ; and each is entitled to a share in the son's inheritance, proportionate to that assigned him in the father's. 108 THE INSTITUTES OP JUSTINIAN. [BOOK II. Section VIII. A pupillary substitution may be made to males up to fourteen ; and to females up to twelve years of age. But when they exceed either of these ages, the substitution becomes extinct Section IX. A testator cannot substitute to a stranger, or son of ripe years, whom he has instituted ; by declaring that if such stranger, or son, enter upon the inheritance, and then die within a certain time, another shall be his heir. The sole permission is, for the testator to bind the person instituted by a fidei-cammissum i. e. bequest in trust, to give up all, or a part, to some third person : of the law on this point, however, we will treat in the proper place. TITLE 17. OF THE AVOIDANCE OF TESTAMENTS. A TESTAMENT, legally made, continues valid, until it be either revoked, or annulled. Section I. A testament is said to be revoked when the effect of the instrument is destroyed, while the testator still retains his social standing. For, if a man, after making his testament, were to arrogate an independent person, by licence from the Emperor, or, in presence of the Praetor, and in conformity with our Constitution, were to adopt a child under the power of its natural parent, then, by such quasi-birth of a proper heir, there would be a revocation of his testament. Section II. A former testament is revoked by a subsequent one, made in conformity with the law's directions ; nor is it TITLE 17.] OF THE AVOIDANCE OF TESTAMENTS. 109 material whether, under the new testament, any one becomes heir or not ; the only point to be looked to is this, whether the nominated heir might have entered upon the inheritance. If, therefore, an heir instituted under the new testament, refuse to enter upon the inheritance ; or die, whether during the testator's lifetime, or after his death and before he himself could enter upon the inheritance ; or if there be a failure of the condition, under which he was instituted heir ; then, in any of these cases, the testator is held to be intestate. Because the first testament would be invalid, as being revoked by the second ; while the second is, for lack of an heir, of just as small avail. Section III. If a man who has made already a legally perfect testament, make afterwards another just as legally perfect, and in this latter institute an heir for certain particular things only, the Emperors Severus and Antoninus have, by their Rescript, decided that the first testament is thereby revoked. We have commanded the actual words of this Constitution to be here inserted ; the rather as it contains also another provision : " The Emperors Severus and Antoninus to Cocceius Campa- " nus. We ordain, that a second testament, although the heir " named in it is not universal, but appointed for particular things " alone, shall be as good in law as if such particular things " had not been specified ; but the heir so instituted must, " beyond all doubt, content himself either with the particular " things so given him, or with the fourth part permitted by " the Lex Falcidia ; and must be compelled to restore the " remainder of the inheritance to the heirs named in the first " testament ; and this, by reason of those words in the second " instrument, which declare expressly that the first shall be " still held binding." Thus, then, a testament may be said to be broken or revoked. Section IV. Testaments, legally made, become also ineffec- tual in another way ; to wit, if the testator suffer diminution, 110 THE INSTITUTES OP JUSTINIAN. [BOOK II. i. ., loss of social position. In our First Book we have set forth the circumstances under which this may happen. Section V. Testaments made void by diminution are tech- nically called " irrita" i. e. s " ineffectual ;" although, strictly speaking, those which are broken or revoked, or which were invalid from the very first, are also in fact ineffectual. Thus, also, we may speak of those testaments as revoked, which have become ineffectual by diminution. Still, as it is evidently more convenient to distinguish by different names, effects produced by different causes ; we speak of testaments irregu- larly made, as " null" ; of testaments regularly made, if voided by the testator's revocatory act, as " broken" or " revoked"; and of the like legal testaments voided by the testator's diminution, as " ineffectual. Section VI. Testaments, however, which at first were legally made, and afterwards become ineffectual by diminution, are not absolutely void. For if they have been attested by the seals of seven witnesses, the written heir can obtain possession of the goods, by virtue of the testament, provided it appear that the deceased was a Roman citizen, and not under power at the time of death. But, if a testament become ineffectual, because the testator has lost the rights of citizenship, or his liberty, or has given himself in adoption and was at the time of death, still under the power of his adoptive father, then the written heir cannot sue for possession of the goods, by virtue of the testament. Section VII. A testament cannot be rendered invalid, by the mere after-wish of the testator that it should be invalid ; so that, if a man, after making one testament, should begin another, but, whether prevented by death, or change of mind, should not perfect it, it is decided in a senatorial address of the Emperor Pertinax, that the former testament shall not be revoked, unless the after one be regularly made and perfect : for an imperfect testament is null beyond all doubt TITLE 18.] OF UNNATURAL TESTAMENTS. Ill Section VIII. The Emperor Pertinax, in the same oration, declared, that, he would not accept the inheritance of any testator who, by reason of a lawsuit pending, made him, the Emperor, his heir ; that,he would never establish a will, deficient in point of form, if, by reason of such deficiency, and to gloss it over, he himself were instituted heir; that, he would not suffer himself to be appointed heir, by word of mouth alone ; and that, he would never reap an advantage by virtue of any document, unauthorized by the strict letter of the law. To like purport the Emperors Severus and Antoninus have published their Rescripts, over and over again : " For though," say they, " We be above the laws, still we do live in obedience to them." TITLE 18. OF UNNATURAL TESTAMENTS. FORASMUCH as parents often disinherit children, or omit them from their testaments, without just cause, a law has been introduced, whereby children who complain that they have been unjustly disinherited, or unjustly omitted from the testaments of their parents, may bring an action to set aside such testaments as unnatural, and contrary to natural affection ; and this, by a legal fiction, on the allegation that their parents, when they made them, were not of sane mind. By this, how- ever, it is not meant to allege, that the testator was really of unsound mind, but merely that though he may have made his will in regular form, still it is at variance with that duty of natural affection, which every parent owes. Because, if the 112 THE INSTITUTES OF JUSTINIAN. [BOOK II. testator were actually insane at the time of making his testament, the document is clearly, on that ground, null. Section I. Not only have children the right to attack the testaments of their parents, as unnatural ; but parents also are permitted to attack, on like grounds, those of their children. Also, the brothers and sisters of a testator are, by the Imperial Constitutions, preferred to persons of bad character, if such have been instituted heirs; still brothers and sisters are not therefore allowed to bring an action of this kind, against any heir who may be instituted. No collateral, beyond brothers and sisters, can (if opposed) bring an action to set aside a will as unnatural ; or if they should, being unopposed, bring such an action, not they, but those nearest in succession upon an intestacy, will be the gainers. Section II. Natural children, as well as those adopted by ascendants, according to the distinction laid down in our Constitution, can only attack a testament as unnatural when they can obtain the goods of the deceased in no other way ; for, such as are able to obtain the whole of the inheritance, or a part, by any other means, are not at liberty to impugn the testament, by action, as unnatural. Posthumous children, also, if unable to obtain their inheritance by any other method, may pursue this remedy. Section III. What has now been said, is to be understood to hold in cases only where nothing has, by the testator's will, been left to those who complain ; and this is a provision which we have introduced, by our Constitution, out of respect to the natural right of parents. If, however, the very smallest portion of the inheritance, or any single thing, have been bequeathed to them, they are barred from complaint against the testator's will as unnatural ; but, if near enough in blood, they are entitled to sue for such amount as is wanting to raise the sum bequeathed them to that fourth part, or legitimate portion, which they would have had, in case of the intestacy TITLE 18.] OF UNNATURAL TESTAMENTS. 113 of the deceased ; and they are entitled to this, even though the testator did not add to his gift any special direction, that this their fourth, legitimate portion, should be made up to them in accordance with the estimate of some approved arbitrator. Section IV. If a tutor, in the name of the pupil under his charge, accept a legacy given in the testament of the tutor's own father, while to such tutor nothing has, in that testament, been left ; he may, notwithstanding, in his own name, attack his father's testament as unnatural. Section V. So, on the contrary, if a tutor, in the name of his pupil to whom nothing has been left, attack, and that without success, the testament of his pupil's father as unnatural, such tutor does not forfeit any thing that may have been left to him personally in the same testament. Section VI. To bar a person, near enough in blood, from bringing this complaint of a will being unnatural, he must have already received his fourth, or legitimate portion; whether as heir, or by legacy, or by trust for his use, or by gift in anticipation of death, or by gift in the testator's life-time (in those cases set forth in our Constitution), or by any other of the modes, which are stated in our Constitutions. What we have said of this fourth, or legitimate portion, must be taken in the sense following ; namely, that if there be one person, or if there be several, who bring their action to set aside a testament as unnatural, one-fourth only is to be awarded; and such one-fourth is to be divided in due proportion among them all ; that is, each will receive the fourth of his proper share. 114 THE INSTITUTES OF JUSTINIAN. [BOOK It. TITLE 19. OF THE SEVERAL KINDS OF HEIRS. HEIRS are said be of three kinds (1) necessary ; (2) under power of the testator, and also necessary ; (3) extraneous, not in the power of the testator, and not necessary, but voluntary. Section I. A " necessary" heir is a slave who is instituted heir ; and he is so called because, whether he will or no, at the death of the testator he is straightway free, and compelled to enter upon the inheritance. Persons, therefore, who have doubt as to their own solvency, are wont to institute a slave, as heir in the first, second, or some other place ; so that, if they do not leave assets sufficient to satisfy their debts, the goods seized, sold, or shared among the creditors, may seem rather those of the heir than of the testator. A slave, however, to compensate for this disgrace, enjoys the privilege of having reserved to him, such things as he may have acquired after the death of the testator ; for even though the effects of the deceased are insufficient to satisfy the creditors, still the property so acquired, from other sources, by the slave, is not liable to be sold. Section II. Heirs " under power of the testator, and also necessary," or " family heirs", are sons, daughters, grand-sons grand-daughters by a son, or other descendants in the right line ; provided they were actually under power of the testator at the time of his death. But in order to constitute grand-children heirs of this sort, it is not enough that they should be under their grand-father's power at the time of his decease ; it is further requisite, that their father should have ceased to be a proper or family heir in the life-time of his father, having been TITLE 19.] OF THE SEVERAL KINDS OP HEIRS. 115 freed, by death, or otherwise, from the paternal authority ; because, in such case, the grand-son or grand-daughter suc- ceeds in the place of their father. Heirs of this kind get their name (sui z. e., belonging to) because they " belong to" the family, and even during their father's life-time are considered, in some sort, owners of the inheritance. Wherefore, if a man die intestate, his children are preferred to all others in the succession. They are also called " necessary" heirs, because, whether they will it or will it not, whether by a testament, or by reason of an intestacy, they must become heirs. Still, if the children desire it, the Praetor allows them to abstain from the inheritance ; that the goods, if taken in execution by the creditors, may be the property rather of their parents, than of themselves. Section III. " Extraneous" heirs, are all those who are not under power of the testator ; thus, even those of our children, who are not under our power, are, if we institute them in our testament, " extraneous" heirs. Similarly, children who are instituted heirs by their mother are to be reported extraneous ; because women have not their children under their power. A slave, also, whom his master has instituted by testament, and afterwards manumitted, is reckoned as of those heirs who are extraneous. Section IV. With regard to extraneous heirs, it is requisite that they have testamenti factio, i. e., power to make, take by, or witness a testament ; and this whether they themselves, or whether those under their power, are instituted heirs. Now this capability is needed at two several times ; at the making of the testament, that the institution may be valid ; and at the testator's death, that the institution may operate. Further, the heir should have this capability at the time of entering upon the inheritance ; and this, whether his institution be simple or con- ditional ; for his right as heir, and capacity to take, is princi- pally examined at the time of his acquiring the possession. 116 THE INSTITUTES OP JUSTINIAN. [BOOK IT. But in the time which intervenes between the making of the testament and the death of the testator, or the satisfaction of the condition of the institution, a charge of social standing will not prejudice the heir ; because, as we have said, the times important to be regarded, are the three which we have named. But not only is a man said to have the testamenti factio, or capability aforesaid, who can make a testament, but he also has it who, by virtue of another's testament, can either take for his own benefit, or acquire for that of another, even though he cannot himself make a testament ; therefore mad people, and dumb, posthumous children, infants, sons under power, and slaves belonging to another, may be said to possess this capability. For although such persons are incapable of making a testament, still they can, by testament, acquire either for themselves or others. Section V. Extraneous heirs have the power to deliberate whether tney will, or will not, enter upon an inheritance. But if a proper, or family heir, who has the liberty of abstaining, should intermeddle with the property of the inheritance, or an extraneous heir, who is permitted to deliberate, should once enter upon the inheritance, neither will afterwards be able to renounce it ; unless indeed he were under the age of twenty- five years ; for the Praetor, who in all other cases relieves minors who have been deceived, does so also when they have rashly entered upon an injurious inheritance. Section VI. Here, too, it may be noted that the Emperor Hadrian, once gave permission to a person even of full years, to relinquish an inheritance, when it proved to be hampered with a heavy debt, the existence of which had been concealed at the time when he entered upon the inheritance. This, however, was accorded by the Emperor as a special favour ; the Emperor Gordian, however, afterwards granted it as a settled privilege, but to soldiers only. Our kindly feeling, however, has prompted us to make the benefit common to all TITLE 19.] OF THE SEVERAL KINDS OF HEIRS. 117 our subjects, and to promulgate a Constitution as equitable as illustrious, by virtue of which, heirs who will strictly observe its conditions, may enter upon their inheritance and be held liable only so far as the value of the estate extends ; so that now they are no longer obliged to have recourse to deliberation ; unless, by omitting to observe our Constitution, they choose rather to deliberate, and expose themselves to the liabilities which attend the acceptance of an inheritance according to the ancient rule. Section VII. An extraneous heir, instituted by testament, or called by law to a succession in case of intestacy, may actually become heir, either by doing some act as such, or by a bare expression of his wish to accept the inheritance. Now a man is held to act as heir who treats the goods of the inheritance as his own, either by selling any portion of it, by tilling the land, by letting it, or by any actual declaration, whether by deed or word, of his will to enter upon the inheritance; provided always, he be well assured that the person, over whose property he acts the heir, is really dead, either testate or intestate, and that he is himself the heir. For to act as heir, is to act as proprietor ; and, in former days, men used the word heir, when they meant to denote the proprietor. Again, as the extraneous heir is the creature of mere intention ; so by a contrary intention, he is at once barred from the inheritance. There is nothing to hinder a person deaf and dumb, whether so born, or who afterwards becomes so, from acting as heir, and acquiring the inheritance, provided only he understand the effect of his actions. 118 THE INSTITUTES OF JUSTINIAN. [BOOK II. TITLE 20. OF LEGACIES. LET us now proceed to treat of legacies. This branch of the law may, indeed, not seem to fall within the limits of our present subject, to wit, the inquiry as to the legal methods by which things may be acquired, not singly, but universally, and in the gross : since, however, we have just been treating of testaments, and those who take under testaments, it seems not unreasonable that, in the next place, we go on to treat of legacies. Section I. A legacy, then, is a species of donation, bequeathed by a deceased person, and to be delivered to the legatee by the heir. Section II. Anciently there were four kinds of legacies in use, namely; (1) per vtndicationem, i. e., by direct bequest, to be enforced by a vindication) or real action: (2) per damna- tionem, i. ft, by obligation on the heir: (3) sinendi modo, i, e. f by injunction on the heir to permit : (4) per praceptionem, i. e., by authority to the legatee to pre-occupy, or take before partition of the property. To each of these a certain form of words was assigned by which one was distinguished from another. But these ordained forms have been wholly abolished by Imperial Constitutions. We also, by a Constitution composed with great care and study, from an earnest desire to give avail to the wishes of deceased persons, and with a regard to their intentions rather than to their words, have enacted that, henceforth, the nature of all legacies be one and the same ; and, further, that legatees, by what words soever constituted, may be entitled TITLE 20.] OF LEGACIES. 119 to sue for that which is left them, not only by personal but also by real, or by hypothecary actions. The well-digested matter of the Constitution may, however, best be seen by an actual perusal of its provisions. Section III. But, we have not deemed it expedient that our reforms should be limited by the terms of this Constitution ; for when we observed that the ancients bound legacies by the strictest rules, but accorded a far greater latitude to gifts in trust, as springing more directly from the wishes of the deceased, we deemed it essential that all legacies should be placed on the same footing with gifts in trust, and that no practical difference should subsist between them. That, therefore, which is deficient in the nature of the legacies shall be supplied from the nature of trusts; and that wherein legacies may be more amply furnished, shall be deemed an addition to the nature of trusts. But not by an explanation of these two subjects jointly, to raise a difficulty in the minds of the young, at their first entrance upon the study of the law, we have deemed it worth while to treat separately, first of legacies, and afterwards of trusts, that, when the nature of each is known, the student so grounded may more easily understand the joint relations and intermixture. Section IV. Not only the property of the testator, or of the heir, but that also of a third party may be bequeathed as a legacy ; and the heir is, in such case, bound to purchase that property and deliver it to the legatee ; or, if he be unable to purchase it, he must pay an equivalent in lieu of the specific thing. If, however, the thing bequeathed be such as, in its nature, cannot be bought or sold, then no equivalent is due ; as though a man were to bequeath the Campus Martins, the imperial palaces, the temples, or any of these things set apart for public purposes, for such a legacy is absolutely null. But our assertion, that the property of a third party may be legally bequeathed, must be understood as confined to the 120 THE INSTITUTES OF JUSTINIAN. [BOOK II. case, where the deceased was well aware that what he bequeathed did belong to another, and does not apply to the case where he was ignorant that it was another's. The reason of this distinction being, that if he had known that what he bequeathed was the property of another, he would probably have made no such bequest ; and this is so decided by a Rescript of the Emperor Antoninus. It is, however, incumbent upon him who claims, to wit, the legatee, to prove that the deceased well knew that what he bequeathed belonged to a third party ; and not upon the heir to prove him to have been ignorant of that fact And this is conformably to the general rule that the burthen of proof always lies upon him who claims. Section V. Also, if a man bequeath a thing which he has given in pledge to a creditor, the heir is found to redeem it. Still in this case, as in the former one of the property of a third party, the heir is not bound to redeem, unless the deceased well knew that the thing was pledged : and this the Emperors Severus and Antoninus have, by their Rescript, settled. If, however, the deceased wished that the legatee should himself redeem the thing, and have expressly said so, the burthen of redemption lies no longer on the heir. Section VI. If a thing belonging to a third party be given as legacy, and if the legatee become its proprietor while the testator is still alive, it is expedient to know how it became the property of the legatee: for if he acquired his title by purchase, he may recover the value, by an action on the testament ; but, if he acquired it by a lucrative title, as by donation or the like, he has no ground of action ; for it is a received maxim, that two lucrative titles to the same thing can never concur in the same person. Similarly, if one and the same thing be, by two testaments, given to the same person, it is of the greatest importance to know whether the legatee who sues under one testament, has, by virtue of the other, obtained the specific thing, or the value of it. For if he be TITLE 20.] OP LEGACIES. 121 already in possession of the thing itself, he has no ground of action, because he has acquired it by a lucrative title ; if, however, he have received the value only, he may bring his action for the thing. Section VII. A thing which has no present existence, but which one day will have, may be legally bequeathed ; as, for instance, the fruits which shall grow on such a farm, or the child which shall be born of a particular slave. Section VIII. If the same specific legacy be given to two persons, either conjointly or disjunctively, and if both be willing to accept the legacy, it is shared between them ; if, however, one of them fail to take, either by refusing to accept it, or by dying in the testator's life-time, or otherwise, the whole vests in his co-legatee. A legacy is given conjointly when thus worded: " I give and bequeath my slave Stichus to Titius and Seius" ; and disjunctively as thus ; " I give and bequeath my slave Stichus to Titius ; I give and bequeath my slave Stichus to Seius." And even though the testator say that he gives the same slave, Stichus, the legacy will still be held to be dis- junctive. Section IX. If land, the property of a third party, be left by testament, and the legatee have purchased the bare ownership, while the usufruct accrues to him (by a lucrative title); if, afterwards, he sue under the testament, Julian affirms, that his claim to the land is sound and good ; because, in such claim, the usufruct is regarded merely as a servitude. In this case, the duty of the judge is, to order the value of the land, less the usufruct, to be paid over to the legatee. Section X. If a testator give as legacy, a thing which already belongs to the legatee, such legacy is null ; for that which is already the property of the legatee cannot become more so. And although the legatee may (after the bequest) have aliened the thing bequeathed, still he has no legal claim either to the specific thing, or to its value. Q 122 THE INSTITUTES OF JUSTINIAN. [BOOK II. Section XL If a testator give, as a legacy, that which is his own, as though it were the property of another, the legacy is valid ; for the real state of a case outweighs any opinion of it And even though the testator believe that what he gives is already the property of the legatee, yet, if it do not, the legacy is valid, because the wishes of the deceased may thus be carried out Section XII. If a testator give as a legacy, a thing which does belong to him, but which he afterwards alienates, Celstis holds, that the legacy is still due to the legatee, if the testator did not sell with intent to revoke the legacy : the Emperors Severus and Antoninus held the same in their Rescript The same Emperors, also, have ordained by Rescript, that a man who, after making his testament, has pledged immove- ables therein given as a legacy, is not to be held to have revoked the legacy ; and that the legatee may bring his action against the heir, and compel him to redeem the property. Also, if a testator have alienated a portion of the thing given as a legacy, the legatee is, beyond all doubt, entitled to that which is unalienated ; and the alienated portion is also due to him, if it can be proved that the alienation was not made by the testator with the design to revoke the legacy. Section XIII. If a testator give, as a legacy, a discharge to his debtor, the legacy is valid ; and the heir can bring no suit to recover the debt against the debtor, his heir, or any one who represents that heir. But, on the other hand, the heir of the testator may be legally summoned by the debtor, and compelled to grant him his discharge. A testator may also command his heir not to sue a debtor within a time fixed. Section XIV. On the other hand, if a debtor give as a legacy to a creditor the money which he owes him, the legacy is null, if its amount be not greater than that of the debt ; and this, because the creditor gains nothing by his legacy. If, however, a debtor give absolutely as a legacy to his creditor, an amount TITLE 20.] OF LEGACIES. 123 which was due only on a certain day, or on the accomplishment of a certain condition, such legacy is valid, because it becomes due immediately, and before the debt. Papinian, indeed, holds that, even though the day arrive, or the condition be fulfilled in the life-time of the testator, the legacy would still be valid, because it once was good ; and this is true. For we coincide not in the opinion of those who imagine that a legacy once good, can become invalid, because it has been brought, by circumstances, to a con- dition which, if originally existing, would have rendered it ineffectual. Section XV. If a man retnrn to his wife, by legacy, her marriage portion, the legacy is good, because the legacy is of more advantage to her, than the action which she might bring for the recovery of her portion. If, however, a husband, give as a legacy to his wife her marriage portion, while he has never actually received it, the Emperors Severus and Antoni- nus have decided by a Rescript, that if the bequest be of the portion only, without specifying any actual amount, the legacy is void ; if, however, any certain sum or thing, of the actual amount stated in the dowry deed, be specified as to be paid by way of legacy, before it could be recovered, in the shape of dowry, the legacy is effectual. Section XVI. If a thing left as a legacy be destroyed, with- out the act of the heir, the loss falls upon the legatee. Also, if the slave of another man, given as a legacy, should be enfranchised, without the privity of the heir, the heir is not liable. But, if a testator leave, as a legacy, the slave of his heir, and if the heir should afterwards enfranchise that slave, he is, says Julian, liable : nor is it material whether he knew or did not know, that the slave had been left away from him. And, even, if he have given the slave to some other, and that other have enfranchised him, still the heir is liable, even though he were wholly ignorant of the bequest. 124 THE INSTITUTES OP JUSTINIAN. [BOOK II. Section XVII. If a testator give, by legacy, his female slaves and their issue ; then, even though the mothers die, the issue passes to the legatee. So also if ordinary, or domestic slaves, are bequeathed together with the vicarial slaves, who are then? attendants, even though the ordinary slaves should die, the vicarial slaves will still pass to the legatee. If, however, a slave be bequeathed with his peculium or per- quisites, on his death, manumission, or alienation, the legacy of the' peculium becomes void. The like is the case of the legacy of a piece of land, with the implements of husbandry upon it ; for, if the testator alien the land, the legacy of the instruments becomes extinct. Section XVIII. If a flock be given as a legacy, and be afterwards brought down to a single sheep, that sheep may be claimed by the legatee ; also, if a flock be given as alegacy, Julian holds, that such sheep as are added to it after the making of the testament, will pass to the legatee. Because, a flock is but one body, consisting of several members ; as a house is considered as one body, composed of several stones wrought together. Section XIX. Also, when a building is given as a legacy, the marble or pillars which may be added after making of the testament must, as we declare, pass under the general legacy. Section XX. If the peculium " perquisites" of a slave be subject of a legacy, there is no doubt but that if it be increased, or lessened, in the life of the testator, the gain or loss accrues to the legatee. And if the peculium of a slave be left to himself, together with his liberty, whatever he may acquire after the death of his master, and before the inheritance has been entered upon, will, in the opinion of Julian, pass to him as legatee; for such a legacy is not vested in the legatee, until the inheritance be entered upon. But, if this peculium have been left to a stranger, or extraneous heir, then any increase acquired within the time TITLE 20.] OF LEGACIES. 125 aforesaid will not pass by the legacy, unless such increase has been made by means of something appertaining to the peculium. The peculium of a slave enfranchised by testament, does not belong to him, unless expressly so stated ; although, if a master in his life-time manumit his slave, the peculium will pass as of course, unless the master expressly forbid it ; and to this effect wrote the Emperors Severus and Antoninus, in their Rescript. The same Emperors, by Rescript, have decreed, that when his peculium is given by legacy to a slave, it does not seem to be intended that he should claim such monies as he has expended for his master's purposes. The same Emperors have decided, that a slave appears to be entitled to his peculium, when freedom is left him as a legacy, on the condition of his producing his accounts, and making up any deficiency in them, out of his peculium. Section XXL Things incorporeal may be given as legacies as well as things corporeal. Thus a debt due to a testator, may be given by him as a legacy, so that the heir is bound to assign his right of action to the legatee ; unless, indeed, the testator, when alive, exacted payment, for in such case the legacy is become void. A legacy such as the following would also be valid ; " let my heir be bound to re-build the house of Titius ; or to free him from his debts." Section XXII. If either a slave, or any other thing, be bequeathed generally, that is, without specifying any particular slave, or other thing ; the legatee has the choice, unless the testator has expressed a contrary intention. Section XXIII. The legacy of choice, is that where the testator bids the legatee choose any one from among his slaves, or any other specified class of things ; a legacy of this kind was formerly held to imply the condition, that if the legatee did not make the choice during his life-time, he could not transmit the legacy to his heir. Our Constitution, however, has introduced a reform in this matter, and npw the heir of the 126 THE INSTITUTES OF JUSTINIAN. [BOOK II. legatee has the right of even choice, thougli the legatee in his life-time neglected to use it And after a still closer investigation of the subject we have further, in the same Constitution, added that, if there be several legatees to whom the right of choice is given, and they cannot agree in their selection, or if there be several heirs of one such legatee, who are also unable to agree, one desiring to select one thing, and one another, then lest the legacy should become invalid (as most of the ancient lawyers, contrary to all equity, held would be the case,) fortune must be the judge ; the dispute must be decided by lot, so that he who has the lot, shall have the ruling voice in the selection. Section XXIV. A legacy can be given to those only who have the testamenti factio, i. e., the capability to take by, make, or witness a testament Section XXV. Formerly, neither legacies nor gifts in trust could be bequeathed to uncertain persons ; and even a soldier was not permitted to leave anything to an uncertain person, as the Emperor Hadrian decided by Rescript An " uncertain person", is reported to be one of whom the testator has but an ill-defined imagination, as though he were thus to express himself: "To that person, be he who he may, who shall give his daughter in marriage to my son, let my heir deliver up such a piece of ground" A legacy, likewise, given to the persons first appointed consuls after making of the will, was held to be a legacy to uncertain persons; and there are divers other examples of the like kind. Liberty, also, could not be conferred upon an uncertain person ; for it was necessary that every slave should be enfranchised by name. But, if the legacy were given with a certain amount of identification, that is, to a person uncertain, one of a number of persons certain, it was valid ; for instance, if the expressions were as follow ; " To him, of my collateral relatives, who shall marry my daughter, let my heir give such a thing." If, however, a TITLE 20.] OF LEGACIES. 127 legacy or gift in trust to uncertain persons, had been paid by mistake, the Imperial Constitutions provided that no restitution could be claimed. Section XXVI. Formerly, also, a legacy could not be effectually given to a posthumous stranger : a posthumous stranger is one who, if he had been born during the life-time of the testator, would not have been numbered among his proper, or family heirs ; therefore, a posthumous grand-son, by an emancipated son, was a posthumous stranger with regard to his grand-father. o o Section XXVIL But these points, also, have not been left without due reform; for in our codes has been inserted a Constitution, whereby we have remedied the law as to uncertain persons, not only as regards inheritances, but also as regards legacies and gifts in trust. The alterations will be more clearly seen by a perusal of the Constitution. Still, even by this our Constitution, the nomination of an uncertain tutor is not permitted, for it is incumbent upon every parent, by fixed and determinate appointment, to appoint a tutor for his offspring. Section XXVIII. A posthumous stranger could formerly, and may now, be instituted heir; unless he have been conceived by a woman who could not have been legally married to his father. Section XXIX. --Although a testator have made a mistake in the nomen, cognomen, or prcBnomen^ i. e. in the clan, family, or personal name, of a legatee, still, if the identity be clearly ascertained, the legacy will be valid. The same latitude is observed in regard to heirs, and with great reason ; for names are of use only to make out, and distinguish individuals ; and if their identity can be made out, by any other mode, it matters not. Section XXX. A rule of law which comes very near to the foregoing is, that a legacy is not annulled by a false 128 THE INSTITUTES OF JUSTINIAN. [BOOK II. description. For instance, if a legacy were to run thus : " I give and bequeath Stichus, my slave, who was born in my family" ; in this case, although Stichus was not born in the family of the testator, but bought by him, still if there be a certainty as to the person meant, the legacy is good. So, in like manner, if the identification were, " Stichus, my slave, whom I bought of Seius"; then, although he was really bought of some one else, the legacy would be valid, if no doubt existed as to the slave intended to be given. Section XXXI. Still less is a legacy rendered invalid, by the assignment of an untrue reason for making it ; as if a testator were to say " I give and bequeath my slave Stichus to Titius, because he took charge of my business during my absence ; or, because I was acquitted upon a capital charge, thanks to his undertaking my defence" ; though Titius had never taken charge of the business of the deceased, and though the testator had never been acquitted upon any capital charge, thanks to the defence of Titius, the legacy will be effectual. But if the cause alleged be put conditionally, the case is quite different, as thus, " I give and bequeath to Titius such a piece of ground, if it is shall appear that he has taken charge of my business." Section XXXII. It has been a question whether a legacy can legally be given to the slave of an heir. It is, however, clear beyond all doubt that such a legacy is ineffectual ; nor can it avail aught, that the slave was freed, during the testa- tor's life-time, from the power of the heir : for a bequest which would have been null, if the testator had died immediately after he had made his testament, ought not to become valid, simply because he chanced to enjoy a longer life. A legacy may, however, be given under a condition to the slave of an instituted heir; and then, we have to inquire whether at the time when the condition is fulfilled, and the legacy becomes vested in the legatee, he has ceased to be under the power of the heir. TITLE 20.] OF LEGACIES. 129 Section XXXIII, On the contrary, it cannot be doubted but that, if a slave be appointed heir, an unconditional legacy may, by the same testament, be given to his master. For, even though the testator should die immediately after making his testament ; yet, at that time, the right to the legacy is not immediately vested in the heir. For here a distinction is drawn between the inheritance and the legacy, and another master may, by means of this slave, become heir, if, before he have entered upon the inheritance at the bidding of his master, he be transferred into the power of a new master ; or he may himself become the heir, by manumission ; and, in both cases, the legacy is effectual. If, however, the slave remain in the same state, and enter upon the inheritance by order of the legatee, his master, the legacy becomes extinct Section XXXIV. Formerly, a legacy given before the institution of an heir was void ; because, a testament gets its whole force and efficacy from the institution of the heir ; which, therefore, is looked upon as its head and its foundation. Like- wise, a gift of freedom could not be made, in a testament, before the institution of an heir. But we have deemed it absurd, that the mere order of the composition should be looked to, in opposition to the wishes of the testator ; a thing which even the ancients seem to have thought unpardonably wrong. We, therefore, by our Constitution, have introduced a reform in this matter ; so that now, either before the institution of the heir, if there be but one, or among the institutions of heirs, if there be several, a legacy, or grant of liberty, a gift always favoured, may legally be made. Section XXXV. A legacy to take effect after the death of an heir, or legatee, was also formerly ineffectual ; as, if a testator had said, " When my heir is dead, I give and bequeath such a legacy"; or, "I give and bequeath such a sum to be paid on the day before that of the death of my heir, or of my legatee." But here, also, we have introduced a reform, R 130 THE INSTITUTES OF JUSTINIAN. [BOOK II. giving to all such legacies the same force, which is possessed by gifts in trust ; to the end, that gifts in trust should not, in this case, be more favoured than legacies. Section XXXVI. Legacies also made by way of penalty, could former be neither made, revoked, nor transferred effec- tually. Now, a legacy is reputed as bequeathed by way of penalty, if it be given with intent to compel the heir to do, or not to do, a certain act ; as, if the testator said, " If my heir give his daughter in marriage to Titius", or, " if he do not give his daughter in marriage to Titius, let him pay ten golden pieces to Seius"; or thus, "if my heir shall alienate my slave Stichus", or, " if my heir shall not alienate my slave Stichus* let him pay ten golden pieces to Titius." And this rule was so strictly observed, that it was expressly ordained by many of the Imperial Constitutions, that even the Emperor would receive no legacy, which was given by way of penalty. And even in the testaments of soldiers, legacies of this kind were of no avail ; although, in all other respects, the intentions of soldiers in making their testaments were strictly followed out. Nay, even freedom itself could not be given by way of penalty ; still less, in the opinion of Sabinus, could another heir be added, as a penalty ; as if a testator were to say, " Let Titius be my heir ; but if he give his daughter in marriage to Seius, let Seius also be my heir". For if Titius, the heir, were laid under restraint, it mattered not by what means, whether by the gift of a legacy, or by the addition of an heir. But this over-scrupulous nicety accorded not with our views, and we, therefore, have ordained that, as a general rule, tilings by testament, left, revoked, or transferred, shall be treated, in all respects, as other legacies ; with the exception, however, of such as are either impossible, forbidden by law, or likely to cause scandal ; for the moral principle of the age in which we live will not endure testamentary dispositions of such a character. TITLE 21.] OF REVOCATION AND TRANSFER OF LEGACIES. 131 TITLE 21. OF THE REVOCATION AND TRANSFER OF LEGACIES. THE revocation of a legacy is valid, whether it be inserted in the testament itself, or in a codicil. It is also immaterial whether it be made in terms directly contrary to those of the bequest ; as when a testator who gives a legacy in these terms, " I give and bequeath", revokes it by adding, " I do not give and bequeath" ; or else, in terms not contrary, that is by any other form of words. Section L A legacy may also be transferred from one person to another ; as thus, " I give and bequeath to Seius, my slave Stichus, whom I have given and bequeathed to Titius." This also may be done either in the testament itself, or in a codicil ; and thus, at one and the same time, a legacy is taken from Titius, and given to Seius. TITLE 22. OF THE FALCIDIAN LAW. IT remains for us to speak of the Falcidian Law, by which legacies have received their latest regulations. In former days, in accordance with a law of the Twelve Tables, the right of 132 THE INSTITUTES OF JUSTINIAN. [BOOK II. disposing of projlerty by legacy was wholly unrestrained, a man, indeed, might dispose of his whole patrimony in legacies, for the words of the law were ; " As a man has disposed of his property, so let the law be" ; it has, however, seemed fit to put some check upon this licence. And this has been provided for the benefit of the testators themselves, inasmuch as they frequently died intestate, the heirs whom they had instituted, refusing to enter upon an inheritance, whence the profit they could glean would be but small, if there were any at all. To remedy this were introduced first the Fusian Law, and afterwards the Voconian ; and, as neither of these appeared adequate to meet the requirements of the case, last of all was enacted the Falcidian Law. This last law forbids a testator to give more than three-fourths of his pro- perty in legacies; so that whether there be one heir or several, there must now remain for him, or them, an entire fourth part of the whole. Section I. The following question has been raised, in the case of the institution of two heirs, say Titius and Seius. If the share of Titius in the inheritance be either wholly exhaust- ed, or heavily incumbered with legacies expressly charged upon it, and if, the share of Seius be either wholly unincum- bered, or have legacies charged upon it only up to half its amount ; would, now, the fact of Seius having a clear fourth, or even larger share of the whole inheritance, bar Titius from keeping back out of the legacies charged upon his share, enough to secure the fourth part of his own moiety ? It has been held that Titius may retain the fourth part of his own moiety ; for the principle of the Falcidian Law applies to each heir individually. Section II. The Falcidian Law has regard to the quantity of the estate at the time of the testator's death. Thus, for example, if he, who at the time of his death is worth but an hundred golden pieces, bequeath them all in legacies; the legatees TITLE 22.] OF THE FALCIDIAN LAW. 133 will be no gainers, though the estate should, before the inhe- ritance is entered upon, be so much increased in value, by the acquisition of slaves, new-born children of female slaves, or produce of cattle, that, even after full payment of the hundred pieces to the legatees, a clear fourth of the whole estate would remain to the heir ; because one-fourth of the said hundred pieces would be still due to him, and the lega- cies would remain liable to such an abatement. If, on the other hand, the testator gave in legacies seventy-five golden pieces only (being worth an hundred at his death), then, although before the entrance of the heir the estate should be so wasted, by fire, shipwreck, or loss of slaves, as to be worth not more than seventy-five pieces, and probably less, yet the legacies would still be due without abatement. This is, how- ever, in no way prejudicial to the heir, as he is at full liberty to decline to enter upon the inheritance ; it does, however, virtually oblige the legatees to come to some agreement with the heir, so as to get a part, lest, by his refusal to act, they should forfeit the whole of their legacies. Section III. In the valuation of an estate, under the Fal- cidian Law, a deduction is first made of the testator's debts, funeral expenses, and the cost of manumitting slaves ; then the residue is divided, so that one-fourth part remains for the heir, and the other three parts are shared among the legatees, in proportion to the amount of their respective legacies* Thus, let us suppose that four hundred golden pieces have been given in legacies, and that the whole value of the estate, from which such legacies are to issue, does not exceed that sum ; then each legatee must suffer his legacy to be abated by one-fourth. But, if the testator gave in legacies three hundred and fifty pieces, and there remained after debts paid four hundred, an eighth only ought to be abated from each legacy. And if he gave in legacies five hundred, and there remained, after debts paid, four hundred only, a fifth 134 THE INSTITUTES OF JUSTINIAN. [lJOOK II. must be abated from every legacy, and afterwards a fourth. For that which is above the full value of the goods of the deceased must first be abated, and afterwards conies the abatement of what is due to the heir. TITLE 23. OF BEQUESTS IN TRUST. LET us now go on to Trusts. And first, let us speak of fiduciary inheritances ; or inheritances in trust Section L We must first observe that all trusts (fidei- commissa) were originally of small avail, for no one could be forced, against his will, to execute the trust, which he was merely asked to fulfil. For when testators were minded to give an inheritance, or legacies to those who could not legally be made heirs or legatees, they entrusted their gifts to the honour and good faith of some person capable of taking by testament These species of inheritances and legacies were called fidd-cormrmsa.) i. e. trusts to good faith, because they were sanctioned by no bond of law, but rested only upon the honour and good faith of those to whom the request was addressed. In later days, however, the Emperor Augustus, whether from having been frequently influenced by a desire to relieve particular persons, or because he was earnestly adjured by testators in the name of his imperial safety, or being moved with indignation at some peculiarly gross breach of faith, ordered the Consuls to interpose their authority in these matters. And since this intervention of the Consuls was both TITLE 23.] OF BEQUESTS IN TRUST. 135 just and popular, it soon assumed the form of a settled jurisdiction; and that jurisdiction became so high in public favour, that in course of time a special Prsetor was appointed to adjudicate in cases of the sort; and he was thence called Praetor Fidei-commissarius, i. e., Pra3tor Commissary of Trusts. Section II. First, we must again remark, that in every testament it is absolutely necessary that some one be duly instituted heir ; but it may be left to the good faith of such heir, to give back the inheritance to some one else ; a testa- ment, however, which contains no appointment of an heir, is absolutely ineffectual. When, therefore, a testator has said, " let Lucius Titius be my heir", he may add, " and I ask thee, Lucius Titius, as soon as thou canst enter upon my inheritance to return and give it up to Caius Seius." A testator may also ask his heir to restore a portion only of the inheritance ; and may also leave the gift in trust absolutely, conditionally, or on the expiration of a certain day. Section III. An heir who has restored an inheritance, in obedience to the trust reposed in him, still remains the heir. He, however, who has actually received the inheritance from such fiduciary heir, is considered at times in the light of heir, and at times of legatee. Section IV. In the reign of the Emperor Nero, when Trebellius Maximus and Annasus Seneca were Consuls, it was provided by a decree of the Senate, that so soon as an inheritance, under a testamentary trust, had been restored, all actions, which by the Civil Law might be brought by, or against the heir, should be permitted to, or against him, to whom, by virtue of the trust, the inheritance had been restored. After the passing of this decree, therefore, the Pra3- tor began to grant equitable actions to and against him who so took the inheritance, precisely as though he were the heir. 136 THE INSTITUTES OP JUSTINIAN. [BOOK II. Section V. But, as instituted heirs were very frequently asked to restore the whole, or well-nigh the whole of an inheritance, they used to refuse to accept it, since they could receive little or no profit; and so it happened that testamentary trusts were oftentimes extinguished. After- wards, however, in the reign of the Emperor Vespasian, when Pegasus and Pusio were Consuls, the Senate decreed, that the heir, who was requested to return an inheritance, might retain a fourth; just as he was permitted to do in the case of legacies by the Falcidian Law. And the heir may make a like deduction in the case of specific things, left him by testament in trust for another. For some time after this decree the heir alone bore the burthen of the inheritance ; but afterwards any one who received a share or part of an inheritance under a testamentary trust, was looked upon as a part legatee ; that is, as a legatee who had a legacy not of particular thing, but of a share or part of the property. Now this species of legacy was called partition, because the legatee took his part of the inheritance together with the heir. Whence it came about that such stipulations as were formerly in use between the heir and the part -legatee, were after- wards made between the heir and the person benefitted under the testamentary trust ; the intent, in both cases, being that both the profit and the loss accruing from the estate of the testator, should be shared between them, in proportion to their respective interests. Section VI. If, therefore, an instituted heir were requested to restore a share, not exceeding three-fourths of the inheritance, he was obliged to make such restitution by virtue of the Trebellian decree; and all actions having reference to the inheritance might, according to their respective shares, be brought against the heir, by the Civil Law, and against him who virtually received the inheritance, as though against an heir, by the Trebellian decree. If, however, TITLE 23.] OF BEQUESTS IN TRUST. 137 the instituted heir were requested to restore the whole inheritance, or a share exceeding three-fourths, then the Pegasian decree was applicable; and the heir who once entered upon the inheritance, provided he did so of his free will, was obliged to bear all charges of the inherit- ance; and this, whether he had retained, or had declined to retain the fourth to which he was entitled. When, however, the heir did retain his fourth, he and the person taking under the trust (the fidei-commissary, or cestui-que-trusf) entered into those stipulations for the apportionment of charges, technically called partis et pro parte, which we have above said were made between the part-legatee and the heir. Again, when the heir declined to retain his fourth, and transferred the whole amount left to the person benefitted by the trust, then the stipulations called emptce et venditce hcereditatis, i. e. for the bargain and sale of the whole inheritance, were entered into between them. But if the nominated heir refused to enter upon the inheritance, on the allegation that he feared it would prove a loss to him, it was provided, by the Pegasian decree, that, on the petition of him to whom he had been requested to restore the inheritance, such heir should be compelled, under a Praetor's order, to enter upon the inheritance, and to restore it ; and that, afterwards, all actions should be brought by, or against him who so received the inheritance, in accordance with the provisions of the Trebellian decree. And in this latter event there is no need of formal stipulations ; for, by this one act, ample security is afforded to the heir, who restores the inheritance, and all actions as to such inheritance, whether for or against, are transferred to him who has received it ; there is, therefore, in this case, a concur- rent application of both the Trebellian and Pegasian decrees. Section VII. But, as the formal stipulations, which sprang from the Pegasian decree, were misliked even by the ancient jurists themselves ; insomuch that Papinian, a man of real 138 THE INSTITUTES OF JUSTINIAN. [BOOK II. ability, deems them in some cases absolutely quibbling ; and, as we are of those who prefer plainness to needless obscurity in matters of law, it has pleased us, on a comparison of the points of agreement and disagreement in each decree, to annul the Pegasian, which was passed later than the other, and to transfer exclusive authority to the Trebellian decree ; by virtue of which all testamentary bequests in trust shall, for the future, be restored, whether the testator have given by his testament, to the nominated heir, either a fourth, more or less than that portion, or even nothing at all ; so that where either nothing, or a portion less than a fourth, is given to the heir, it may be competent to him either to retain a fourth, or so much as shall be needed to make up the deficiency, by virtue of our authority, or even to demand a re-payment of it, if he has paid it over in his own wrong ; all actions lie as well as against the heirs, as against the Jidei-commissary (or cestui-que-trusf) according to their respective shares, as they did under the Trebellian decree. If, however, the heir, of his free will, give up the whole inheritance, all actions, having reference thereto, must be brought either by or against the fidei- commissary. And, seeing that the peculiar provision of the Pegasian decree was, that when an instituted heir refused to accept an inheritance, he might be compelled to enter upon and give it up to the fidei-commissary, at his instance, and to transfer all actions to and against liim, we have carried this whole provision over to the Trebellian decree. So that> now, this is the only law, whereby an obligation of entering upon the inheritance is imposed upon the heir, in the event of his refusal, and of the Jidei-commissary being anxious that restoration should be made to him ; and, in this case, neither loss nor gam can accrue to the heir. Section VIII. Further also, it matters not whether an heir, who is instituted to the whole of an inheritance, be requested to give up the whole or a part, or whether one TITLE 23.] OF BEQUESTS IN TRUST. 139 instituted to a part only, be requested to give up that entire part, or only a portion of it ; for we have ordained that, in the latter case, the like rules be observed, which we have laid down with reference to the restitution of the whole. Section IX. If an heir be requested, by a testator, to give up an inheritance, after deducting or excepting some specific thing, amounting to a fourth of the whole, as a piece of land, or any thing else, he will be called upon to make restitution, under the Trebellian decree, precisely as if he had been requested to give up the remainder of an inheritance, after the reservation to himself of a fourth. There is, however, this difference in the two cases : in the first, when the inheritance is given up after the deduction or exception of some particular thing, then, by virtue of the decree aforesaid, actions of all sorts are transferred to the Jidei-commissary ; and the specified portion, which remains to the heir, is free from all incumbrance, just as though he had acquired it by legacy. In the second, however, when the heir is requested to give up an inheritance, after the reservation to himself of a fourth, all actions are proportionally divided, those which refer to three-fourths of the estate are transferred to the Jidei-commissary, while those which refer to the other fourth continue with the heir. And, even though an heir be requested to give up an inheritance, after deducting or excepting some specified thing, whereof the value may amount to the greatest part of the whole estate, still actions of all sorts are transferred to the Jidei-commissary ; he, therefore, ought well to consider whether it will, or will not be expedient that the inheritance should be given up to him. And the same principles are observed, whether an heir be requested to give up an inheritance after the deduction, or exception, of two, or more specific things ; the like holds equally if the deduction be of a certain sum of money, which amounts to a fourth, or even to the principal part of the inheritance. What, also, we have said 140 THE INSTITUTES OF JUSTINIAN. [BOOK II. of an heir who is instituted to the whole, applies with equal force to him who is instituted only to a part of an inheritance. Section X. Further, one who has made no will, may, when about to die, make a request of him, to whom he believes that his estate will pass, either by the Civil or Praetorian Law, that he will give up, to a certain third person named, either the whole inheritance, or a part of it, or some specific thing in it, as a farm, a share, or a sum of money. Legacies, on the contrary, are valid only if given by testament. t Section XL A fidei-commissary, himself may also be requested, in his turn, to give up to another, either the whole, or a portion of what he receives ; or even to give some other thing in lieu of it. Section XII. All testamentary bequests in trust depended, originally, upon the good faith of the heir; and from this "fides" "good faith" they gained as well their name as properties. The Emperor Augustus first brought them within the cognizance of the law; and we, more recently, have striven to out-vie that Prince. At the instance, therefore, of Tribonian, that most illustrious man and Quaestor of our sacred palace, and in consequence of a special instance laid by him before us, we have framed a Constitution, whereby we have enacted that ; if a testator have trusted to his heir to make surrender of an inheritance, or any specific thing ; and if the fact of such trust having been imposed, can be proved neither by any written document, nor by the evidence of five witnesses ; a number, known as that which the law, in such cases will demand, if then, the witnesses were fewer than five, or perhaps not at all were present, in such case, whether it were the father, or whether any other person who has trusted to the good faith of the heir, and begged him to give up the inheritance, if such heir should perfidiously refuse to give it up, and repudiate the whole affair, the fidei-commissary, TITLE 24] OF INDIVIDUAL THINGS BEQUEATHED IN TRUST. 141 having himself first taken the oath of calumny, may insist on having an oath administered to the heir ; he may thus compel such heir either to deny, upon his solemn oath, that he has ever received such a trust, or to fulfil it, though against his will, whether it relate to the whole inheritance, or some specific thing. This is permitted lest the last wishes of a testator should be defeated, when entrusted to the good faith of his heir. We have ordained that the same remedy should be available against a legatee, or even Jidei-commissary, to whom a testator has left anything with a request to give it up. And if any man, so charged, confess the trust, but strive to find shelter in the subtle turns of the law, he may nevertheless, be forced to fulfil his duty. TITLE 24. OF INDIVIDUAL THINGS BEQUEATHED IN TEUST. A TESTATOR may also leave particular things in trust, as a piece of land, a slave, a robe, gold, silver, coins ; and may either request his heir to give them up, or even a legatee, though a legatee cannot be made chargeable with a legacy. Section I. A testator may not only leave his own property in trust, but that also of his heir, of his legatee, of his Jidei-commissary) or of any other; thus a legatee, or a Jidei-commissary., may not only be requested to give up that which hath been bequeathed him, but what is absolutely his own property, or even what belongs to another. The only caution necessary to be observed by the testator is, not to ask any one 142 THE INSTITUTES OP JUSTINIAN. [BOOK II. to give up more than he has actually taken under the testament ; for what exceeds the value of that so given, will be disposed of ineffectually. Also, when another man's property is left, by testament in trust, the fiduciary trustee, or person requested to give it up, must either procure the actual thing from him who owns it, or else must pay its estimated worth. Section II. Freedom, also, may be given to a slave by virtue of a testamentary trust ; for an heir, a legatee, or a Jidei-commissary, may be requested to give him manumission ; nor is it material, whether the testator request the enfran- chisement of his own slave, or of the slave of his heir, or of that of his legatee, or of that of a stranger ; therefore, even a slave who belongs not to the testator, must, if possible, be bought and set free. If, however, the proprietor of such slave refuse to sell him, as he may, if he have taken nothing under the testament, still the freedom granted by the trust is not extinguished, but put off only ; for it may become possible, in course of time, when an opportunity of purchasing the slave has presented itself, that the boon of liberty may be afforded him. The slave, however, who is enfranchised in pursuance of a testamentary trust, does not become the freedman of the testator, even though he were the testator's own slave, but he becomes the freedman of him who manumits him. That slave, however, who gives his freedman by a direct bequest in the testament, becomes the freedman of the testator, and is called Orcinus, the freedman of one in Orcus ; no slave, however, can obtain his liberty by direct bequest, who was not the property of the testator, both at the time of the making of his testament, and also of his death. A direct gift of liberty is said to be made, when a testator does not request that his slave may be manumitted by some other person, but when he wills that liberty shall accrue to him instantly by virtue of his testament. TITLE 25.] OP CODICILS. 143 Section III. The terms usually employed in the expression of testamentary trusts, are the following: I beg, I ask, I wish, I commit, I entrust to thy good faith; and of these, each singly is as binding, as if all were conjoined. TITLE 25. OF CODICILS. IT is certain, that codicils were not in use before the time of Augustus ; as Lucius Lentulus, to whom also the first use of testamentary trusts may be traced, introduced them. For, when about to die in Africa, he wrote sundry codicils, confirmed, by anticipation, in a testament of earlier date ; and in these codicils, he requested the Emperor Augustus, by way of testamentary trust, to do something therein expressed. The Emperor Augustus carried his wishes into effect ; and afterwards many other persons, influenced by the Emperor's example, discharged trusts which had been committed to them : the daughter, also, of Lentulus paid certain legacies, which she could not legally have been compelled to pay. Augustus, then, is said to have convoked an assembly of the learned, among whom was Trebatius, whose opinion had, at that time, the very greatest weight, and to have put the question as to whether this practice could be admitted, and whether codicils were not inconsistent with the principles and policy of law. Trebatius, however, advised Augustus to declare that the practice in question was most useful and even necessary to the citizens, by reason of the long journeys frequently 144 THE INSTITUTES OF JUSTINIAN. [BOOK II. undertaken at that time, when they might execute codicils, though it would be impossible to make a testament After this time, when Labeo himself had executed codicils, no one entertained any doubt but that those instruments were perfectly valid. Section L Not only is he permitted to make codicils, who nas already made his testament, but even one who dies intestate, may commit his property in trust to others, by way of codicil. But when codicils are made before a testament, they cannot, according to Papinian, take effect, unless specially confirmed by the subsequent testament. The Emperors Severus and Antoninus have, however, decided by Rescript, that a thing left in trust by codicils, made before a testament, may legally be demanded by the Juki-commissary, provided it be clearly shown that the testator has not drawn back from that wish which he originally expressed in his codicils. Section II. In codicils, however, an inheritance can neither be given, nor taken away ; and this is, to prevent confusion, in the consideration of the respective operations of testaments and codicils. It is, however, only in direct terms, that no inheritance can, by codicils, be either given or taken away ; for it may legally be alienated in codicils, by means of a trust. By codicils, again, no condition can be imposed upon an instituted heir ; nor can a direct substitution be made by them. Section III. A man may make many codicils ; and they need no solemnities in form or execution. EJiD OF BOOK II. BOOK III. TITLE 1. OF INHERITANCES IN CASES OF INTESTACY. HE dies intestate, who has either made no will at all, or one which is invalid; or whose will, though valid at its execution, is revoked or cancelled afterwards, or becomes of none effect, for lack of an heir to enter upon the inheritance. Section I. Inheritances of intestates belong, according to the law of the Twelve Tables, in the first place to the proper, or family heirs. Section II. Proper, or family heirs, as we have before observed, are those who are under power of the deceased, at the time of his death ; as a son or a daughter, a grand-son or grand-daughter by a son, a great-grand-son or great-grand- daughter by the grand-son of a son ; and it matters not whether those children be natural or adopted. Together with the above, are to be reckoned also, those who, though not born in lawful wedlock, are, nevertheless, in accordance with the tenor of the Imperial Constitutions, entitled to the privileges of proper or family heirs, by being admitted into the order of the Curials, and so rendered liable to be chosen Decurions. And we must further add, all those comprised in the provisions of T 146 THE INSTITUTES OF JUSTINIAN. [BOOK III. those of our own Imperial Constitutions which enact, that if a man have lived in intercourse with a woman, whom he at first did not intend to marry, but with whom he might lawfully contract marriage ; and if he have had children by her, and afterwards, in obedience to the dictates of affection, shall marry that woman, and so have other children by her, sons or daughters, then not only shall those children be legitimate and under the power of their father, who are born after the celebration of the marriage, but those also who, though born before, gave occasion to the legitimacy of the after issue. And we have deemed it expedient to make this rule, as to children born before marriage, hold and obtain, even though there should be no issue after marriage, or though such as had been born be dead. But a grand-son or grand-daughter, a great- grand-son or great-grand-daughter, is not reckoned in the number of proper, or family heirs, unless the person preceding them in degree have ceased to be under the power of the ascendant, whether by death, or by some other mode, as by emancipation. For if, when a man died, his son was under his power, his grand-son, by that son, cannot be the proper, and family hen? of him, the grand-father ; and the same must be und3rstood to be the case with reference to all other descendants. Posthumous children, also, who would have been under their father's power, if they had been born during his life-time, are esteemed as proper, or family heirs. Section III. Persons may become proper heirs, without their knowledge, and even though they be insane; for in all cases where inheritances may be acquired without our knowledge, in all such also may they be acquired by the insane. The ownership in an inheritance is not broken at the father's death, but immediately carried on and continued in the heir ; the authority of a tutor, therefore, is not needed to enable a pupil to inherit, for proper or family heirs may acquire inheritances even without their knowledge; and an TITLE 1.] OF INHERITANCES IN CASES OF INTESTACY, 147 insane person, also, inherits, not by assent of his curator, i>ut by reason of his own indefeasible right. Section IV. Sometimes, however, a child becomes a proper heir, although he was not under power at the death of his parent. Such is the case of one, who returns from captivity after the death of his father ; he is at once made a proper heir, by virtue of the jus postliminii, or right of return. Section V. On the contrary, it may happen that a child, who was under the power of his parent, at the time of his death, does not become his proper heir ; as, for instance, when a father, after his decease, has been adjudged guilty of treason, and his memory in consequence rendered infamous ; such an one can have no proper heir, inasmuch as the public treasury succeeds to his estate. Still a son may, in such case, be said in strictness to have been in his own right a proper heir, although afterwards he ceased to be so. Section VI. A son or a daughter, and a grand-son or grand- daughter, the issue of another son, are all equally called to the inheritance ; nor does the nearer in degree exclude the more remote; for it appears a just thing, to permit grand-sons and grand-daughters to succeed in the place of their father. For like reasons a grand-son or grand-daughter by a son, and great- grand-children by a grand-son are all equally called. And since it has been held that grand-sons and grand-daughters, great-grand-sons and great-grand-daughters should succeed in the place of their parent, it seemed a necessary conclusion that the inheritance should be divided, not per capita, i. e. 3 by the head, in equal shares to each individual descendant, but per stirpes, i. e., by the roots, or stock, in such shares, to each sub-division of the original family, as would have accrued to the head of such sub-division, if he had been livino-. Thus, 9 O * where there is a son, and also grand-children by another son (no longer living,) the inheritance will be divided equally between them ; the son will take the one-half, and the other 148 THE INSTITUTES OF JUSTINIAN. [BOOK III. will go to the grand-children, whether two or more, as repre- sentatives of their father. So again, if two sons die, leaving a father and children them surviving, if there be one child or perhaps two, of one brother, and three or four, of the other, then the inheritance of the grand-father will be equally divided, half will go to the single grand-child or two grand-children by the one son ; and half to the three or four grand-children by the other son. Section VII. When it is asked, whether any particular person is a proper heir ; we must proceed to inquire at what time it was certain that the deceased died without a testament ; and he may be said to have so died, if his testament were abandoned. Thus, if a son be disinherited, and a stranger instituted heir ; and if, after the death of the son, it become certain that the instituted heir did not in fact enter upon the inheritance, either because he was unable, or unwilling so to do, then the grand-son of the deceased will be the proper heir of his grand-father ; for at the time when it became certain that the deceased died intestate, there was no other heir but the grand-child ; and this is a point well settled. Section VIII. And, even if a child be born after the death of his grand-father, yet provided he were conceived in his life-time, he will, at the death of his father, and after his grand- father's testament has been abandoned, become the proper heir of his grand-father. If, however, the child be both conceived and born after the death of his grand- father, then, although his father should die, and his grand-father's testament be abandoned, he could not be the proper heir ; for he was never actually allied to his grand-father by any tie of relationship. So, again, he who has been adopted by an emancipated son, is not to be reckoned as among the proper heirs of the father of his adoptive father. The adopted children, therefore, of an emancipated son, as they are not proper heirs of their adopter's father, so far as regards the inheritance, are also unable to sue for TITLE 1.] OF INHERITANCES IN CASES OF INTESTACY. 149 possession of the goods, as next of kin. So much then, of proper, or family heirs. Section IX. Emancipated children have, according to the Civil Law, no legal claim to the inheritance of their parents ; because, as they have ceased to be under the paternal authority, they are no longer proper or family heirs, and they are not called upon to inherit, on any other title, by the law of the Twelve Tables. But the Praetor, in obedience to the dictates of natural justice, grants them that possession of the goods, which, from the first words of the edict, is known as unde liberi, precisely as if they had been under the power of their father, at the time of his death ; and this grant is made whether they are alone, or whether there are other children, who are proper heirs. Thus if there be two sons, the one emancipated, and the other under power at the father's death, the latter is, according to the Civil Law, alone the heir, that is, alone the proper heir; but as, thanks to the equitable jurisdiction of the Praetor, the emancipated son is admitted to his share, the result is, that the proper heir becomes actual heir of his own share only. Section X. Children, however, who after emancipation have given themselves in adoption, are not admitted, as children, to possession of the goods of their natural father ; that is, not if, when he dies, they are still in the adoptive family. But, if they have been emancipated by their adoptive father, and that during the life-time of their natural father, they are admitted, by Praetorian equity, to take the goods of their natural father, precisely as though they had been merely emancipated by him, and had never been members of the adoptive family. Thus, as a necessary consequence, they are, with regard to their adoptive father, looked upon as perfect strangers. If, however, they are emancipated by the adoptive, after the death of the natural father, they are still equally looked upon as strangers to their 150 THE INSTITUTES OF JUSTINIAN. [BOOK III. adoptive father; and with regard to the effects of their natural father, make no advance toward regaining their portion as children. And this has been so settled, because it was most unjust to permit that a mere adoptive father, should have it in his power to decide to whom the inheritance of the natural father should belong, whether to his children, or to his agnates. Section XL Adopted children have, therefore, fewer privileges than have natural children ; for natural children, when emancipated, retain the rank of children, thanks to the equitable jurisdiction of the Praetor, although they lose it by the Civil Law ; but adopted children, when emancipated, lose the rank of children by the Civil Law, and can sue for no relief from the Praetor. And this is most reasonable; for civil policy cannot put an end to natural rights ; nor can natural children cease to hold the relations of sons and daughters, of grand-sons and grand-daughters, simply because they cease to be proper heirs. But adopted children, when they are emancipated, begin forthwith to be as though mere strangers ; because by one ceremony of the Civil Law, to wit, emancipation, they lose utterly that which they had obtained by another ceremony of the Civil Law, to wit, adoption. Section XIL The same rules are observed, also, in that possession of goods which the Praetor, contrary to the letter of the testament, grants to children who have been left unmcn- tioned ; that is to such as have been neither formally instituted, nor formally disinherited. For the Praetor calls, to share in this possession, upon all the children who were under the power of their father at his death, and upon those also who were emancipated ; but he excludes those who were members of an adoptive family at the time of the death of their natural parent And as the Praetor does not permit those adopted children who have been emancipated by their adoptive father, to succeed him in case of dying intestate, much less does he TITLE 1.] OF INHERITANCES IN CASES OF INTESTACY. 151 permit them to take possession of his goods, contrary to the letter of his testament ; because, by emancipation, they cease to be in the number of his children. Section XIII. We must, however, observe, that those children who remain in an adoptive family, or who have been emancipated by their adoptive father, after the decease of their natural father, who dies intestate, although not admitted by that part of the Praetorian edict which calls children to the possession of goods, are still by another part admitted ; by that, namely, whereby the cognati i. e. the relatives through females of the deceased are called. By such latter part of the edict, however, they are called only when there are no proper heirs, no emancipated children, and no agnati, or relatives through males. For the Praetor first calls the children, whether proper heirs or emancipated ; then the agnail, who being appointed by virtue of the law of the Twelve Tables, and also by the Constitutions, were thence called "legitimate" heirs ; and lastly the cognati, in the earlier degrees. Section XIV. These then were the rules which obtained in former times ; but they have been in some sort reformed by that Constitution of ours, which refers to those who are given in adoption by their natural parents. For we have been made acquainted with certain instances, wherein sons have, by adoption, forfeited the right of succession to their natural parents; and also, through the case whereby the tie of adoption is dissolved by emancipation, have lost the right of succession to their adoptive, and thus, to either parent. We, therefore, with our wonted wish to set right what is wrong, have promul- gated a Constitution which enacts, that when a natural father has given his son in adoption, the rights of such son shall still .be preserved entire, precisely as if he had continued in the power of his natural father, and as if no adoption had taken place ; with, indeed, this sole exception, namely, that the person adopted may succeed to his adoptive father, in the 152 THE INSTITUTES OF JUSTINIAN. [BOOK III. event of his dying intestate. If, however, the adoptive father make his testament, (and omit the name of the adopted son), the son can, neither by Civil Law nor by Praetorian Edict, acquire any portion of the inheritance, whether he sue for possession of the goods, in opposition to the letter of the testament, or whether he seek to set the instrument itself aside as being unnatural ; for there is no obligation which renders it incum- bent on an adoptive father either to institute as heir, or expressly to disinherit an adopted son, and this, because there is no natural link between them ; not even if, in accordance with the Sabinian senatorial decree, the adopted be one of three brothers ; for, in a case of this sort, he shall neither obtain the fourth, nor have an action which will avail him to pursue a claim to it Those, however, are excepted by our Constitution, who are adopted by an ascendant ; for inasmuch as both rights, the natural and the civil, unite in their favour, we have preserved the old regulations, with reference to adoptions of this kind ; as we have, also, in the case where the father of a family has given himself in arrogation. But all these matters, in their fulness of detail, may be gleaned from the tenor of the aforesaid Constitution. Section XV. The ancient law which showed special favour to descendants from males, called only those grand- children who were so descended, to the succession as proper heirs, and placed them before the agnail ; but grand-children born of daughters, and great-grand-children born of grand- daughters, the same ancient law reckoned as coynati only, and called them to succeed to their grand-father and great-grand-father, to their grand-mother and great-grand- mother, maternal or paternal, only after the whole line of agnati had been exhausted. But the Emperors would not permit a wrong so unnatural to subsist, without some ade- quate reform ; and, seeing that the name of grand-child and great-grand-cliild is coinmou as well to those descended from TITLE 1.] OF INHERITANCES IN CASES OP INTESTACY. 153 females, as to those from males, they granted the same rank and order of succession to them all. But, that some especial privilege should be accorded to those, who are supported by the dictates of nature, as well as of the ancient law, the same Emperors thought it but just that the portions of grand- children, great-grand-children, and other lineal descendants of a female, should be somewhat lessened; they decided, therefore, that such should receive less by a third, than their mother or grand-mother would have received, or than their father, or grand-father, paternal or maternal, at the decease of a woman, when her inheritance was under discussion ; and although there were no other descendants, provided these entered upon the inheritance, the Emperors did not call the agnati to the succession. And as, upon the death of a son, the law of the Twelve Tables calls the grand-children and great-grand-children, male and female, to represent their father in the succession to their grand-father, so the Imperial Ordinance calls them to the succession in the place of their mother or grand-mother, subject only to the aforesaid abatement of the third. Section XVI. But as there still remained some ground of dispute between the agnates and the above-mentioned grand- children, the agnates claiming the fourth of the estate of the deceased, under a certain Constitution ; we have abrogated the said Constitution, and have not allowed it to be extracted from the code of Theodosius, and inserted in our own. Also, in our own published Constitution, we have abandoned absolutely the spirit of the old regulations, and have enacted that, so long as there are grand-children of a daughter, or great-grand-children of a grand-daughter, the agnates shall not be entitled to claim any interest in the succession of the deceased ; and the reason of this is, that collateral may not have the preference over lineal descendants. And we also, hereby, again decree, that this our Constitution shall prevail in to its full force, and that u 154 THE INSTITUTES OP JUSTINIAN. [BOOK III. from the date of its publication. And further, as the law ordained that, as between sons and grand-sons by sons, the inheritance should be divided per stirpea t, up to the Capitol," the ell'ect \\ oiild lie the same as if the stipulation were, thai li\c pieces should be paid to tho Mipulator at the day of his death. A conditional stipulation involve. :i h.'pe only that, the thiti", M.ipulaled may become due ; hut this hope we tian, nut to our heirs, if \\ e die I.elore the fuililnieut of the condition. 190 THE INSTITUTES OF JUSTINIAN. [BOOK III. Section V. Places, also, are wont to be introduced in stipulations, as, for example, " Do you bind yourself to pay me at Carthage ?" Now this stipulation, although it appear to be absolute, is yet in reality coupled with the idea of the time whereof the promiser must avail himself, in order to pay the money at Carthage. If, therefore, one at Rome should in a stipulation say, " Do you bind yourself to pay me such a sum, this day, at Carthage ?" Such stipulation would be void, because the performance of it would be impossible. Section VI. Conditions which have reference to time past, or to time present, either instantly annul an obligation, or do not operate to stay its execution; as, for instance, "Do- you bind yourself to give me so much if Titius have been Consul, or if Maevius be alive ?" If neither of these things be so, the stipulation is void ; but if they be, the contract is already in force. For things which, in themselves, are certain, do not stay the formation of an obligation, even though to our minds, and so far as our knowledge goes, they are not certain. Section VII. Not things alone, but acts, may be the subjects of stipulations ; as when we stipulate, that something shall or shall not be done. In stipulations, however, of this kind, it is best to add a fixed penalty, in case of non-performance, lest the real worth of the stipulation should be uncertain, and the plaintiff should be called upon to prove the actual amount of his interest K, therefore, any stipulate, for the performance of a thing, the penalty should be thus stated, " If the act stipulated be not performed, do you bind yourself to pay ten pieces, as a penalty ?" Also, if, by one and the same sentence, a stipulation be made, that certain things shall be done, and certain left undone, a clause to the effect following should be added, " If anything be done adverse to the agreement; or anything left undone according to the agreement, do you bind youself to pay me ten pieces as a penalty ?" TITLE 16.] OP JOINT VERBAL CONTRACTS. 191 TITLE 16. OF JOINT VERBAL CONTRACTS. As well in the stipulation on the one side, as in the promise on the other, two persons, or more, may be parties. The parties to the stipulation are all bound, if, after all have put the question, the promiser, for his part, answer, spondeo " I bind myself" ; as, for example, when, in reply to two stipulators, who have each separately asked the question, the promiser answers, " I bind myself to pay to each of you." Because, if he first promise Titius, and then to another who puts the same question, make the same promise, there will exist two separate obligations, instead of two co-stipulators to one obligation. Two or more become joint promisers, if, after the question has been put disjunctively as, " Masvius, do you bind yourself to give five pieces ?" " Seius, do you bind yourself to give five pieces?" each separately replies " I do engage." Section I. In joint obligations, such as these, the whole thing which is the subject of the stipulation, is due to each stipulator, and from each promiser. But, as one thing alone is the subject of each obligation, if any of the stipulators receive the thing due, or any of the promisers pay it, the obligation is discharged for all parties, and all are freed. Section II. Of two joint promisers, one may engage simply and absolutely, and the other may bind himself to performance on a certain day, or conditionally ; but neither day fixed, nor condition named, will secure the promiser who is simply bound, from being sued for payment of the whole. 192 THB INSTITUTES OF JUSTINIAN. [BOOK III TITLE 17. OF STIPULATIONS WITH SLAVES. A SLAVE obtains, from the legal personality of his master, the right to make a stipulation ; but, in many respects, the inheritance represents the legal personality of the deceased ; whatever stipulation, therefore, is made by a slave, the property of the inheritance, before the inheritance is entered upon, he acquires for the inheritance, and so for him who afterwards becomes the heir. Section I. A slave who stipulates, whether for his master, for himself, for a fellow slave, or for some person un-named, always acquires for his master. The like holds with children who are under the power of their father, in all cases 'where they can acquire for him. Section IL But when the stipulation contains a thing to be done, the person of the stipulator is solely regarded ; so that, if a slave stipulate for a right of passage for himself, or beasts, or carriages, it is the slave, and not the master, who is to have no hindrance in his passage. Section III. If a slave, the joint property of several masters, enter into a stipulation, he acquires for each of his masters a share in proportion to their interest in him ; unless, indeed, he stipulate at the bidding, or in the name of any one master ; for, in such case, the thing stipulated for will be acquired solely for that master. Also, whatever a slave held in common by two masters, stipulates for, is all acquired by one of his masters, if it be impossible that part be acquired for the other ; as, for instance, if the thing already be the property of one of the two. TITLE 18.] OF SEVERAL KINDS OF STIPULATIONS. 193 TITLE 18. OF THE SEVERAL KINDS OF STIPULATIONS. SOME Stipulations are Judicial ; some Prsetorian ; some Conventional ; some Common, that is Praetorian and Judicial. Section I. Judicial Stipulations are those which spring simply from the office of the judge ; as of the giving security against fraud, or the engagement to pursue a runaway slave, or to pay the worth of him. Section II. Praetorian Stipulations are those which spring solely from the office of the Prsetor ; as where security is given when danger is imminent, or for the payment of legacies. Also under Praetorian Stipulations must be reckoned those of the jiEdiles; for these, too, come from a proper legal authority. Section III. Conventional Stipulations are those, which are made by agreement of both parties ; that is, by order, neither of Judge, nor Praator, but by consent of the contracting persons. And of such stipulations there are, so to say, as many kinds, as there are of things contracted for. Section IV. Common Stipulations are those, which provide for the security of the property of a pupil ; for the Praetor ordains a certain guarantee to be given for this end, and sometimes the judge, if need be, in court decrees it ; or, they are for the ratification of things done in another's name. 194 THE INSTITUTES OP JUSTINIAN. [fiOOK III. TITLE 19. OF VOID STIPULATIONS. ALL THINGS, which may be submitted to our dominion, may be the object of a stipulation, whether be they moveable or immoveable. Section I. But, if a man stipulate for that which neither does, nor can exist, as for Stichus, who is dead, although he thought him living ; or for a Centaur, which can have no existence, the stipulation is void and ineffectual. Section II. The rule holds equally in case of a stipulation for a thing sacred or religious, wliich was thought not to be so ; or for a thing of public property, given for ever to the uses of the people, as a forum, or a theatre ; or for a free-man, thought to be a slave ; or for a thing which he, who wishes to make the stipulation, cannot acquire ; or for something wlu'ch already is his own. Every such stipulation shall at once be void ; and not remain open and unsettled, because, perchance, the public thing may become private ; the free man may become a slave ; the stipulator may become able to acquire ; or that which now is his may cease to be so. So, on the other hand, although a thing may originally be the subject of a valid stipulation, yet, if afterwards it fall into the list of such things as those before-mentioned, without the fault of the promiser, the stipulation becomes invalid. A stipulation, again, such as the following, is void from the very first, " Do you engage to give me Lucius Titius when he shall become a slave?" for those things, which, by their nature, are exempt from our dominion, can by no means be made the objects of an obligation. TITLE 19.] OF VOID STIPULATIONS. 195 Section III. If one promise that another shall do, or give something, he is not bound ; as, if a man were to promise that Titius shall pay five pieces. But, if he promise that he will cause Titius to pay five pieces, he is bound by that agreement. Section IV. If a man stipulate for the benefit of any other, than of him in whose power he is, such stipulation is void. Payment, however, may be made to a third party, as if a man, in his stipulation, were to say, " Do you bind yourself to make payment to me, or to Seius ?" Here, the stipulator alone acquires the obligation ; but still the debtor may legally make the payment to Seius, even against the wish of the stipulator; the debtor will thus be freed from his obligation, but the stipulator can sue Seius in an action of mandate. Again, if one stipulate that ten pieces shall be paid to him and to a third person, under whose power he is not, such stipulation is effectual ; but it has been a question, as to whether the whole amount be due to the stipulator, or a half only ; and it has been held that half accrues to him. If, however, you stipulate on behalf of another, who is under your power, you acquire for yourself; for your expressions are as those of your son, and your son's expressions are as your own, in regard to all those things which can possibly be acquired for you. Section V. A stipulation is, moreover, void, if the person to whom the question is put does not give a pertinent answer j as if one were to stipulate that you should give him ten pieces, while you prom^e only five ; or if the reverse were the case. A stipulation is also void, if one make his stipulation absolute, while you promise conditionally; or the reverse; provided only, you distinctly disagree, as when a person stipulates conditionally, or for performance at a certain time, and your reply is definite, " I promise for to-day only." Because, if your answer simply be, " I promise," you virtually seem, 196 THE INSTITUTES OF JUSTINIAN. [BOOK III. in few words, to assent to his time, or his conditions. For, in the answer of the promiser, it is not essential that there be an actual repetition of each word which the stipulator has made use of. Section VI. A stipulation, also, is void if made witli one under your power; and this whether you, or he be the stipulator. A slave, however, is incapable not only of entering into an obligation with his master, but even of binding himself to any one besides. The son of a family, however, can enter into obligations with any, save his father. Section VII. It is clear, that a person deaf and dumb, can neither stipulate nor promise. The like is held to apply, also, to the deaf; for he who stipulates, ought to hear the words of the promiser ; and he who promises, the words of the stipulator. It is, hence, evident that we are not speaking now of one who hears, though with difficulty, but of one who cannot hear at all. Section VIIL A madman can do no sort of legal act ; for he understands not the tendency of his actions. Section IX. A pupil may do every sort of legal act; provided only the tutor give his assent, where his authority is needed; and this it certainly is, where the pupil would be himself the bounden party; but he can, without the authority of his tutor, bind others to him. Section X. What we have just said of pupils, must be understood only as of those who have, already, a certain amount of understanding ; for an infant, or a child just out of infancy, differs not greatly from a madman, as pupils of such age can have no understanding. But, to advance their interests, a more favourable construction of the law is permitted to pupils not far removed from infancy ; so that they are allowed the same privileges as those close to the age of puberty. A son, however, under power and within puberty, cannot bind himself, even though his father authorize the transaction. TITLE 19.] OF VOID STIPULATIONS. 197 Section XL A stipulation, also, is void, if an impossible condition be annexed to the obligation. Now a condition is said to be impossible when nature herself hinders the accom- plishment ; as if one should say, " Do you promise to do so and so, if I touch the sky with my finger?" But if the stipulation ran in this form, " Do you promise if I do not touch the sky with my finger ?" such a stipulation would be interpreted as absolute and unconditional, and performance might, straightway, be demanded. Section XII. A verbal obligation is, also, void, if made between absent persons. But, inasmuch as this rule gave ground of strife to the contentious, who alleged, after some time had elapsed, that either they were absent, or their opponents, we put forth our Constitution, addressed to the advocates of Csesarea, and provided for the speedy settle- ment of such suits. Wherein, we did enact, that implicit belief shall be placed in such written acts or instruments as declare that the contracting parties were present; unless, indeed, the party who has availed himself of the shameless allegation of absence, shall be able to show, on the clearest evidence, either in writing, or by credible witnesses, that he, or his opponent, was in some other place during the whole day whereon the record of the contract purports to have been made. Section XIII. Formerly, a man could no more stipulate that a thing sho dd be given him after his own death, than he could that it shbuld be given after the death of the promisor. Nor could any person under the power of another, stipulate for a thing to be given him after the death of that other ; inasmuch it was that other, whether father or master, who seemed to speak through him. Again, if a man were to have stipulated thus, " Do you promise to give me so much on the day before I die? or on the day before you die?" such stipulation would have been void. But, since, as has 198 THE INSTITUTES OF JUSTINIAN. [BOOK III. been said before, all stipulations gain their force from the consent of the contracting parties, we have deemed it advisable to introduce an essential alteration in this respect; so that now, a stipulation is good and effectual, whether it be stipu- lated that a thing be given after, or the day before, the death, whether of stipulator or of promiser. Section XIV. Again, if one in stipulation were to say, " If such a ship arrive to-morrow from Asia, do you engage to give me such a sum to-day?" such stipulation would be void, because preposterous. But, as the Emperor Leo, of illustrious memory, deemed that hi the case of marriage portions, no stipulation should be set aside as preposterous ; it has pleased us to give a wider effect to this doctrine ; and to ordain, that, henceforth, every preposterous stipulation shall be good, not only in the case of marriage portions, but of all other contracts whatsoever. Section XV. A stipulation in these words, " Do you promise to give me when I die T or " when you die ?" was good by the ancient law ; and it is so still. Section XVI. We may also make a valid stipulation, that a thing shall be given after the death of a third person. Section XVII. If it appear in writing, on the face of the instrument, or record of the contract, that a person has pro- mised ; it is always taken for granted that the promise was duly given in answer to a foregone interrogation. Section XVIII. When several things are included in one stipulation, and the promiser answers simply " I promise to give", he thereby binds himself to all. If, however, he promise to give one, or certain, of the things stipulated for, he is bound with respect to those things only, which, in his answer, he promised to give. For, where there are several stipulations, it may chance that some only have been perfected by receiving their separate answers ; as for every object of a contract, a separate question, and a separate answer is, in strictness, needed. TITLE 19.] OF VOID STIPULATIONS. 199 Section XIX.- No man, as has already been laid down, can stipulate for the sole benefit of a third party ; for obligations of this kind are designed to enable every person to obtain what he has an interest in obtaining ; and the stipulator has no interest that something should be given to another. Still, if a person wish to do this, he should stipulate for a penalty to be paid to him, so that if the promiser omit to fulfil his promise, the stipulation for the penalty shall be valid even for one who has no interest in the fulfilment of the promise. Because, when a stipulation includes a penal clause, regard is had, not to the interest of the stipulator, but to the amount of the penalty. If, therefore, a man stipulate that a certain thing shall be given to Titius, his stipulation is void ; but if he subjoin a penalty, and say, " Do you engage to give me so many pieces if you do not give this to Titius ?" this stipulation will be binding on the promiser. Section XX. If, however, a man stipulate for the benefit of another, but is himself interested in the performance of the promise, the stipulation is effectual. Thus, if he who has begun to act as tutor, afterwards cedes the administration to liis co-tutor, and stipulates for the careful management of the estate of the pupil ; then will such obligation be binding, because, the stipulator has an interest in the performance of the promise, since he is answerable to the pupil in case of mal-administration. So, if a man stipulate for a thing to be given to his procurator, or attorney, the stipulation shall prevail. A valid stipulation, also, is that which a debtor makes for something to be paid over to his creditor ; and this, because it is to the interest of the stipulator ; either to the end, that he may not become liable to the exaction of any penalty due to his creditor, or that his goods, given in pledge, should not be sold. Section XXL On the other hand, he who promises that another shall perform a certain act, does not appear to be 200 THE INSTITUTES OP JUSTINIAN. [BOOK III. bound, unless he subject himself to a penalty in the event of such act being not performed by the other. Section XXIL No man can validly stipulate that a thing which will hereafter belong to him, shall be given him, when it becomes his own. Section XXIII. If the stipulator refer to one thing, and the promiser to another, an obligation is no more contracted, than if no answer had been made to the interrogation. As, if one were to stipulate that you should give him Stichus, while you believed him to refer to Pamphilus, under the impression that Pamphilus was named Stichus. Section XXIV. A promise made for an immoral purpose, as to commit murder, or sacrilege, is not valid. Section XXV. If a conditional stipulation have been entered into, even though the stipulator die pending the accomplishment of the condition, his heir will be entitled, when the accomplishment does take place, to bring his action for execution of the promise. In like manner, the heir of the promiser is liable to be sued. Section XXVI. He who stipulates for a thing to be given him in a certain year or month, can have no legal claim upon the promiser until the whole year, or whole month, shall have expired. Section XXVII. Also, if you stipulate for a piece of land, or for a slave, you are not entitled to demand immediate delivery, but must wait until a reasonable tune for delivery shall have elapsed. TITLE 20.] OF SURETIES. 201 TITLE 20. OF SURETIES. IN support of him who passes his promise, other persons are wont to bind themselves. There are called Sureties, or Cautioners, or Fide-jussors, and creditors generally require them, in order to increase their own security. Section I. Sureties may be added in obligations of all kinds ; that is whether contracted by delivery of the thing, by word, by writing, or by consent of the parties. Nor is it necessary, that the obligation to which the surety is made a party, be civil or natural; thus, a man may bind himself as surety for a slave, and may do so either to a stranger or to the master of the slave, when the thing due is so by a natural obligation. Section II. >A surety is not only bound himself, but at his death transmits the obligation to his heir. Section III. The obligation of a surety may either precede, or follow that of the principal promiser. Section IV. When there are several sureties, however large their number, each one is liable for the whole debt ; thus it is in the option of the creditor to demand the whole amount from any surety he will. Nevertheless, by virtue of a Rescript of the Emperor Hadrian, the creditor is compelled to demand separately from every surety, who is solvent at the time of the suit, his own proportional share of the debt ; if, therefore, any of the sureties be insolvent at that time, the burthen falls the heavier on the rest. But, if a creditor should obtain the whole amount of his demand from one of the sureties, then if the principal debtor, for whom he 202 THE INSTITUTES OF JUSTINIAN. [BOOK IIT. became bound, be unable to pay, the entire loss shall fall upon that one surety. And such an one must blame himself alone, as he might have obtained relief by virtue of the Rescript of the Emperor Hadrian, and might have prayed to have been held liable, as surety, for no more than his own share of the debt Section V. Sureties cannot legally be so bound as to owe more than does the principal debtor for whom they are bound ; for their obligation is an accessory of the principal obligation, and the accessory cannot contain more than the principal. They may, on the other hand, be bound so as to owe less. If, therefore, the principal debtor owe ten pieces of gold, the surety may be bound for five ; but he cannot be bound for ten, if the principal owe but five. If, again, the principal promise absolutely, the surety may promise conditionally ; but not the reverse. Also, the words more or less, are used as well of time as of quantity ; the obligation is greater, if one give a thing at once, but less if it be given only after a time. Section VI. If a surety have made payment for the principal debtor ; he can bring an action of mandate against him for the recovery of the sum paid. Section VII. A surety may bind himself in Greek by saying Tj; tfip viam. K\evt>, Xc'yw, fo'Xw, or fiovXofJUtt, i. e., upon my faith I order I say I wish I desire. The word 9j/ may be used as equivalent to \lyu. Section VIII. It must be observed, that in all stipulations of sureties, whatsoever is, in writing, stated to have been done, is presumed to have been actually done. If, therefore, a man, in writing, confess that lie has bound himself as surety, it is presumed that all the usual forms were gone through. TITLR 21.] OF OBLIGATION'S CONTRACTED BY WRITING. 203 TITLE 21. OF OBLIGATIONS CONTRACTED BY WRITING. FORMERLY a species of written obligation was in use, which was effected by registering the names of the contractors ; these contracts were thence called nomina, but are now no longer in use. But, if a man state in writing, that he is indebted in a sum, which has never been paid over to him, he cannot, after any material lapse of time avail himself of an exception that the money had never been paid over to him ; and the limitation of this time has very frequently been set forth by Imperial Constitutions. Hence it is, that in the present day, a man must be bound - by his written act, if he can bring no legal exception ; and from this written contract arises a condiction ; in the absence, that is, of any verbal obligation. In former days, the Imperial Constitutions gave a space of time, of not less than five years, wherein any one might bring his exception, that the money had not been paid. But in the present day, that creditors may not be open for too long a time to the risk of being defrauded of their money, we have, by our Constitution, contracted this allowance of time, and have ordained, that no exception of this kind, shall be brought after the expiration of two years. 204 THE INSTITUTES OF JUSTINIAN. [BOOK III. TITLE 22. OF OBLIGATIONS CONTRACTED BY CONSENT. OBLIGATIONS are contracted by Consent, in the cases of bargain and sale, of letting and hiring, of partnership, and of mandate or commission. Now, in all these cases, an obligation is said to be contracted by consent, because neither writing, nor the presence of the parties is essential. Neither is it requisite that anything should be given, or delivered in order to make the obligation binding ; it suffices that there be the consent of those between whom the business is conducted. Hence it is, that contracts of this sort may be entered into even between parties at a distance from each other, by means either of letters, or of messengers. Further, in obligations by consent, each party is bound to render to the other every thing that equity and good conscience doth demand ; while in verbal obh'gations, the one party makes a stipulation, and the other a specific promise. TITLE 23. OF BARGAINS AND SALES. THE Contract of Sale is complete so soon as the price is agreed upon ; although nothing has yet been paid, nor even TITLE 23.] OF BARGAINS AND SALES. 205 any earnest given ; for the earnest is nothing but an evidence that the sale has been contracted. This is, however, to be understood only of bargains and sales made without writing ; for, with respect to sales of this kind, we have made no alteration in the rule. But, where there is a written contract, we have ordained, that a sale is not to be deemed absolute and complete, unless a proper instrument of sale have been drawn by the contracting parties, or at least signed by them, if drawn by others. And, if such instruments have been drawn up by a notary, the contract is to be deemed incomplete, unless they be formal, and finished in all respects ; for, so long as there is anything lacking in this respect, there is room for change of purpose, and either buyer or seller may, without penalty, draw back from his agreement ; that is, if nothing have been paid down in the way of earnest. But, if an earnest have been paid, then whether the contract be in writing or not in writing, the purchaser who refuses to fulfil it, forfeits the earnest which he has paid ; and the seller, if he refuse, is compelled to restore twice the value of the earnest : and this, though no agreement as to earnest was expressly made. Section L It is always essential that a price be fixed upon ; for if there be no price, there is no sale. And such price must be certain. Formerly, it was a question much mooted by the ancient jurists, as to whether the sale be valid or not, when the contracting parties agree that the thing shall be sold at the sum " at which Titius shall value it." We, however, have settled the point, by enacting, that whensoever a sale is agreed to be made at a price to be settled by a third party, the contract shall be held binding under the condition that, if such third person do fix the price, then in accordance with his valuation, the said price shall be paid, the thing delivered, and the sale completed : and that if either purchaser or seller shall then draw back, he will be liable to an action at the suit of the other party. If, however, the third party 206 THE INSTITUTES OP JUSTINIAN. [BOOK III. named be either unable, or unwilling, to fix the price, the sale is void, as having been made without of agreement as to price. And, as we have made this regulation with reference to contracts of sale, it seems only reasonable to extend it also to contracts of letting and hiring. Section II. In a sale, the price should consist in cash, or money told. It has been much questioned whether, indeed, price can consist in anything besides, as in a slave, a piece of ground, or a toga. Sabinus and Cassius were of opinion, that price might consist of anything ; and hence comes the vulgar notion, that a bargain and sale is contracted by exchange ; and that exchange is, in truth, the oldest kind of sale. They who so argued, used to quote the lines of Homer, who tells us, in the lines following, how the Greeks procured wine, by giving certain things in exchange for it : Wine the rest purchased at their proper cost, And well the plenteous freight supplied the host : Each in exchange proportioned treasures gave, Some brass or iron, some an ox or slave. But other jurists, of another school, maintained the contrary opinion ; affirming that exchange was one thing, and sale another ; for otherwise, said they, in a mere exchange, it would be impossible to say which was the thing sold, and which the thing given as a price ; for it were unreasonable to look upon each article as, at once, the thing sold, and the price given. The opinion, however, of Proculus, that exchange is a contract wholly distinct from sale, has very properly prevailed ; supported as he is by other lines from Homer, and also by the stronger arguments. This, also, is the doctrine admitted by preceding Emperors, and fully set forth in our Digests. Section III. So soon as the bargain and sale is contracted (and this, as we have observed, in the case of a sale made without writing, is effected so soon as the price is agreed upon,) TITLE 23.] OF BARGAINS AND SALES. 207 all risk as to the thing sold belongs to the purchaser ; although it has not yet been delivered to him. If, therefore, after sale, a slave die or receive any bodily hurt ; or if a house, or part of it, be destroyed by fire ; or if a piece of land, or any portion of it, be washed away by a flood, or injured by an inundation, or by a tempest hurling down the trees ; the loss in all these cases, must be borne by the purchaser, who is obliged to pay the price agreed upon, even though he never had possession of the thing. Whatever may happen to the thing sold without the evil design or fault of the vendor, the vendor is not liable. So, on the other hand, if after the sale, any accession be made to the land by alluvion, the advantage accrues solely to the purchaser. For the legal maxim is that ; He who runs the risk, should reap the gain. But if a slave who has been sold, either run away or be stolen before delivery, and no evil design nor fraud can be charged upon the seller, it will become a question, as to whether the seller undertook to keep him in safe custody until delivery. If he did, the risk of such casual occurrences falls upon him ; if not, the seller is not liable, and the loss falls solely on the purchaser. The like holds as to all other animals and things. The seller, however, is held (as against third parties) to be the owner until delivery ; and, therefore, when such accidents occur, he is bound to transfer to the purchaser his rights of action whether real or personal ; and it so, also, with regard to actions of theft and damage. Section IV. A contract of sale may be as well conditional as unconditional and absolute; as, thus, "If Stichus suit you within such a time, you shall have him for so much." Section V. Whoso, of his knowledge, purchases a sacred or religious spot, or a public place, as a Forum or Basilica, makes a void purchase. If, however, taken in by the seller, he purchased, under the impression that what he was buying 208 THE INSTITUTES OF JUSTINIAN. [BOOK III. was profane, or private, then, as he cannot enjoy what he has purchased, he has his right of action against the seller to recover the damage suffered by the deceit The same rule holds, in the event of his having purchased a free-man, under the supposition that he was a slave. TITLE 24. OF LETTING AND HIRING. THE Contract of Letting and Hiring is very similar to that of sale, and is governed by the same rules of law. As a bargain and sale is contracted so soon as the price is settled, so a contract of letting and hiring is formed so soon as the hire is agreed to ; and both letter and hirer have their peculiar legal remedies, if the contract be broken by the other party. Section I. What we have above said of the case of a sale wherein the price is to be determined by a third party, may be understood also of a letting and hiring, where the amount of hire is left to the decision of a third party. If, therefore, a man have sent clothes to a fuller to be scoured, or to a tailor to be mended, and have made no previous stipulation as to the sum to be paid for their work, purposing only to give what afterwards they may determine on, no strict contract of letting and hiring can be said to have been made ; still, however, either is at liberty to bring an action on the case. Section II. Further, as it was formerly often asked whether a bargain or sale could be contracted by exchange, a like TITLE 24.] OP LETTING AND HIRING. 209 question has been frequently put with reference to the contract of letting and hiring. For instance, if one man were to give you a certain thing to use or enjoy, and were in return to receive from you a certain other thing, of which he also should have the use or enjoyment ; it has been held, that is not a letting and hiring, but a special kind of contract. Thus, suppose that two neighbours have each got an ox, and suppose that they mutually agree, each to lend the other his ox, to share in the field-work for ten days, alternately ; now if one of the oxen die, while in the custody of the person who did not own it, the owner of the dead beast cannot bring any of the actions formally permitted in breaches of letting, or hiring; nor can he bring one as for a commodate or loan, because there was consideration given ; he has, however, his right to an action on the case. Section III. Contracts of bargain and sale, and of letting and hiring are so closely allied, that it has, in certain cases, been a question whether the contract were the one or the other. As, when lands have been delivered to one to enjoy for ever ; that is, on condition, that so long as a yearly rent is paid to the proprietor, he shall have no legal power to take such lands away from the hirer or his heir ; or from any other person to whom the hirer or his heir shall have sold, or given them, whether gratuitously or as a marriage portion. Now, as a contract such as this, was one concerning the nature of which the ancients had considerable doubts, some looking on it as a letting and hiring, and some as a bargain and sale, the Constitution of Zeno was enacted, which declared that it was a contract of a special nature ; and that the contract of Emphyteusis (so it was called) was not the same with either of the contracts named above, but was supported by its own distinct covenants. It declared, also, that if any special agreement had been made, it should hold, just as though it c2 210 THE INSTITUTES OP JUSTINIAN. [BOOK III. were of the nature of a contract ; but that, if no agreement were made as to any risk which might accrue to the thing, and a total loss were to ensue, the owner should be the sufferer; but, if a partial loss, the burthen should be borne by the occupier. And this is the law which still prevails. Section IV. Again, if Titius were to make a bargain with a goldsmith to make a certain number of rings, of particular size and weight, and to furnish the gold ; and for this work and materials, Titius was to give, say ten gold pieces, it has been a question whether this contract would be one of sale, or of letting and hiring. Cassius was of opinion that there is a sale of the materials, and a letting and hiring of the goldsmith's labour ; it has, however, been now settled to be a contract of sale only. But, if Titius were to supply his own gold, and a sum were agreed to be given for the work, there is no doubt but the contract is one of letting and hiring. Section V. The hirer, or lessee, is bound to do all things in accordance with the lease or contract of hire ; and if there be any omission in such lease or contract, he is nevertheless bound by the rules of equity and good conscience. He who has given or promised hire for the use of clothes, silver, oxen, or the like, is bound to such care in the custody thereof, as a careful father of a family bestows on the custody of his own property. But if, notwithstanding such care, he lose the thing by some mischance, he is not bound to restore it. Section VI. If the hirer, or lessee, die during the continuance of the term of the letting, his heir succeeds to all the rights given by the contract TITLE 25.] OF PARTNERSHIP. 211 TITLE 25. OF PARTNERSHIP. PARTNERSHIPS are of two kinds, one, wherein the partners agree to place in common all their property, and this the Greeks emphatically called " Communion" ; the other where they join only to carry on some particular business, as the sale or purchase of slaves, wine, oil, or wheat. Section!. If there be no express agreement as to the proportions of loss and gain to be shared between the parties, the loss must be equally borne, and the gain equally divided. If, however, there have been a special agreement as to the shares of profit and loss, it must be observed ; and, indeed, it has never been a matter of doubt, but that two persons may validly agree that two-thirds of the profit and loss shall belong to one partner, and that the other shall take the remaining third. Section II. A partnership, however, of the kind following has been much questioned : Titius and Seius have mutually bargained that two-thirds of the profit and one-third of the loss shall belong to Titius, and two-thirds of the loss and but one-third of the profit to Seius ; ought such an agreement to be upheld ? Quintus Mutius held it to be contrary to the nature of partnership, and therefore not to be ratified. Servius Sulpitius, however, whose opinion has prevailed, held the contrary opinion, and declared for its validity, because oftentimes the services of particular partners are so valuable that it is but just to admit them into partnership on terms most advantageous. Nay, one cannot hesitate in saying that a partnership may validly be formed, with equal share of profits, 214 THE INSTITUTES OF JUSTINIAN. [BOOK III. TITLE 26. OF MANDATE OR PROCURATION. THE Contract of Mandate is entered into in five ways ; according as a mandator gives you a mandate for his benefit alone; or for your benefit and his; or solely for the benefit of a third party; or for his benefit and that of a third party; or for your benefit and that of another. If, however, a mandate be given you, for your benefit alone, it is useless, and no obligation or right of action can arise therefrom. Section I. A mandate is for the sole benefit of the mandator; if, for example, a man give you a mandate to transact his business, to buy him an estate, or to become his surety. Section II. A mandate is for your benefit and also of the mandator ; if, for example, a man give you a mandate to lend money at interest to a third party, who is to use such money in the affairs of the mandator. Or if, when you are about to sue a man in his character of surety, he give you a mandate to sue the principal at his risk ; or to stipulate, at his hazard, for a debt he owes to you, from some other whom he appoints as his substitute. Section III. A mandate is solely for the benefit of a third party ; if, for example, a man give you a mandate to transact the business of a third party, to buy lands, or to become surety for him. Section IV. A mandate is for the benefit of the mandator and of a third party; if, for example, a man give you a mandate to transact the joint affairs of himself and of a third TITLE 26.] OF MANDATE OE PROCURATION. 215 party, or to buy lands, or become surety for him and a third party. Section V. A mandate is made for your benefit, and for that of a third party; if, for example, a man give you a mandate to lend money at interest to a third party. If the mandate were to lend it without interest, it would be for the sole benefit of a third person. Section VI. A mandate is made for your benefit alone ; if, for example, a man give you a mandate to invest your own money in land rather than at interest, or the contrary. A mandate of this kind is, however, more properly advice than mandate, and therefore, produces no obligation ; for no man is bound by the effects of any advice which he may give, even though it be not such as is expedient to be acted upon, because every man is at liberty to judge for himself whether advice given to him, be judicious or the contrary. If, therefore, you had a sum of money lying idle in your house, and some one advised you to make a purchase with it, or to lend it out at interest, your adviser is not thereby liable to an action of mandate, although it may have been a loss to you, to complete such purchase, or to make such loan. And this is so clear, that it has been doubted whether an action of mandate will lie, against one who has given you a mandate to lend your money at interest to Titius. But the opinion of Sabinus has prevailed, which affirms such mandate to be obligatory ; for you would never have trusted Titius, if such mandate had not been given. Section VII. A mandate, again, which is contrary to good morals is not binding; as, for instance, if Titius were to give you a mandate to commit a theft, or do some wrongful act or injury ; although you pay the penalty of your obedience to such a mandate, you have still no right of action against Titius. Section VIII. He who executes a mandate must not exceed 214 THE INSTITUTES OF JUSTINIAN. [BOOK III. TITLE 26. OF MANDATE OR PROCURATION. THE Contract of Mandate is entered into in five ways ; according as a mandator gives you a mandate for his benefit alone; or for your benefit and his; or solely for the benefit of a third party; or for his benefit and that of a third party; or for your benefit and that of another. If, however, a mandate be given you, for your benefit alone, it is useless, and no obligation or right of action can arise therefrom. Section I. A mandate is 'for the sole benefit of the mandator; if, for example, a man give you a mandate to transact his business, to buy him an estate, or to become his surety. Section II. A mandate is for your benefit and also of the mandator ; if, for example, a man give you a mandate to lend money at interest to a third party, who is to use such money in the affairs of the mandator. Or if, when you are about to sue a man in his character of surety, he give you a mandate to sue the principal at his risk ; or to stipulate, at his hazard, for a debt he owes to you, from some other whom he appoints as his substitute. Section III. A mandate is solely for the benefit of a third party ; if, for example, a man give you a mandate to transact the business of a third party, to buy lands, or to become surety for him. Section IV. A mandate is for the benefit of the mandator and of a third party; if, for example, a man give you a mandate to transact the joint affairs of himself and of a third TITLE 26.] OF MANDATE OR PROCURATION. 215 party, or to buy lands, or become surety for him and a third party. Section V. A mandate is made for your benefit, and for that of a third party; if, for example, a man give you a mandate to lend money at interest to a third party. If the mandate were to lend it without interest, it would be for the sole benefit of a third person. Section VI. A mandate is made for your benefit alone ; if, for example, a man give you a mandate to invest your own money in land rather than at interest, or the contrary. A mandate of this kind is, however, more properly advice than mandate, and therefore, produces no obligation ; for no man is bound by the effects of any advice which he may give, even though it be not such as is expedient to be acted upon, because every man is at liberty to judge for himself whether advice given to him, be judicious or the contrary. If, therefore, you had a sum of money lying idle in your house, and some one advised you to make a purchase with it, or to lend it out at interest, your adviser is not thereby liable to an action of mandate, although it may have been a loss to you, to complete such purchase, or to make such loan. And this is so clear, that it has been doubted whether an action of mandate will lie, against one who has given you a mandate to lend your money at interest to Titius. But the opinion of Sabinus has prevailed, which affirms such mandate to be obligatory ; for you would never have trusted Titius, if such mandate had not been given. Section VII. A mandate, again, which is contrary to good morals is not binding; as, for instance, if Titius were to give you a mandate to commit a theft, or do some wrongful act or injury ; although you pay the penalty of your obedience to such a mandate, you have still no right of action against Titius. Section VIII. He who executes a mandate must not exceed 216 THE INSTITUTES OP JUSTINIAN. [BOOK III. the limits of his mandate ; if, for example, a man empowered you by mandate to purchase lands, or to be bound for Titius to the amount of a hundred pieces of gold ; you must not exceed this sum, either in the purchase, or the suretyship, for otherwise you can have no action against the mandator for recovery of the excess. Cassius and Sabinus have indeed held that, even if you limited your action to the hundred pieces authorized by the mandate, you could not recover. Jurists of the other school say that you may rightly bring an action limited to a hundred pieces; and this, clearly, is the better opinion. If, however, you make the purchase for a smaller sum than that specified, you have certainly your right of action against the mandator ; for he who gives a mandate that an estate shall be bought for him at the cost of a hundred pieces, is understood to mean that the purchase should be made for less if possible. Section IX. A mandate, lawfully contracted, is dissolved if revoked before any act have been done in execution of it. Section X. Also if, before any act have been done in execution of a mandate, the mandator, or the mandatory die, the mandate is annulled. But, for general convenience, it has been established, that if, after the death of one who has given you a mandate, you, in ignorance of his death, should execute such mandate, you will be entitled to bring an action for indemnification. Otherwise you would suffer for, and be prejudiced by, what was justifiable and natural ignorance. Upon like principles, it was decided, that if the debtors of Titius made their payments to the slave who was his steward, not knowing that he had been emancipated, they were freed from their debts by such payment ; although, by the strict letter of the law, they ought not to have been freed, as they had paid a person other than him whom they ought to have paid. TITLE 27.] OP OBLIGATIONS PROM IMPROPER CONTRACTS. 217 Section XL Any man is free to refuse to accept a mandate ; but if he have once accepted, he must go through with it, or else renounce at the earliest opportunity, in order that the mandator may either do himself the business which is the object of the mandate or find another mandatory. For, if the renunciation be not made so that the mandator is in a position to transact the business properly, an action of mandate will lie against the mandatory, in spite of his renunciation ; unless he can show good cause for not having made the renunciation, or for not having made it within a proper time. Section XII. A contract of mandate may be qualified by a term, or suspended by a condition. Section XIII. Finally, it is to be noted, that if a mandate be not gratuitous, it takes the form of another species of contract ; for if a price be fixed on, it becomes a hiring and letting. And, we may lay it down as a general rule, that in all cases where, if the duty were undertaken gratuitously, the contract would be one of mandate or deposit, it will become one of letting and hiring, if pay be given. If, therefore, a man give his clothes to a fuller to be scoured, or to a tailor to be made, without the offer or promise of any pay, the contract is one of mandate, and may be supported by an action as such. TITLE 27. OF OBLIGATIONS FROM IMPROPER CONTRACTS. HAVING now enumerated the different kinds of direct contracts, let us go on to speak of those obligations which do D 2 218 THE INSTITUTES OF JUSTINAN. [BOOK 111. not, in strictness, spring from a contract ; but which, as they do not take their origin from a wrong, seem to arise from an implied, or quasi-contract Section I. If a person have transacted the affairs of another in his absence, there arise mutual rights of action between them, which actions are called negotiarum gestorum L e. " for business done". The action of the owner against the manager of his affairs is said to be " direct" ; and that of the latter against the owner is called " contrary". It is clear that these actions spring from no regular contract ; for they obtain only when any one, without mandate or authorization, has, of his own will, taken upon him the management of the affairs of another; and consequently those whose affairs are thus managed are bound by an obligation, even against their knowledge. This law has been admitted from motives of public convenience, that the affairs of persons who are forced to depart in haste, without having committed the management to any one, may not be wholly neglected. And, assuredly, no one would take this care upon himself, unless he had a right of action to enable him to recover what he might have expended. But, just as he who has advantageously managed the affairs of another, binds this other to him by an obligation ; so, in his turn, is he himself bound to render an account of his administration. In such a case, he is bound to render an account, with the most careful exactness ; and it is not sufficient that he use the same amount of diligence as in his own affairs ; provided another person of greater diligence might have conducted the affairs of the absent one with greater carefulness and profit Section II. Tutors, also, who are liable to an action of tutelage, cannot in strictness, be said to be bound by contract; for there is no special agreement between the tutor and the ward. But as they are not bound by a wrong, it appears that they are bound by an implied, or quasi-contract In this case TITLE 27.] OP OBLIGATIONS PROM IMPROPER CONTRACTS. 219 also, both tutor and ward, have mutual remedies by action against each other. For not only has the ward a direct action against his tutor ; but the tutor, in his turn, has a cross-action against his pupil, provided he have incurred any expenses in managing the pupil's property, or have become bound for him, or have mortgaged his own goods as security to the pupil's creditors. Section III. Also, when a thing is the common property of several persons, without there being any partnership between them ; as, for example, if a thing be jointly bequeathed, or jointly given to them all; each is reciprocally bound to the other by an action of common partition, to restore whatever fruits of the thing one of them has received alone, or to re-pay whatever necessary expenses one of them has incurred touching the common property. But yet none of these persons can bo said to be bound by a contract, since they made no agreement between themselves; still, as they are not bound by a wrong, it appears that they are bound by an implied, or quasi-contract. Section IV. The same law prevails in regard to him who is bound to his co-heir, and is liable to an action for the distribution and partition of an inheritance among co-heirs. Section V. The heir, also, cannot properly be said to be bound by contract to the legatee ; for the legatee cannot be said to have entered into any contract, either with the heir, or with the deceased; still as the heir is not bound by a wrong, it appears that he is bound by an implied or quasi-contract. Section VI. Also, he to whom any one has paid, through error, money not due to him, is bound, as it were, by a quasi-contract. Nay so far is he from being strictly bound by a contract, that, to reason strictly, he is bound by tho breach, rather than by the formation of a contract ; for he 220 THE INSTITUTES OP JUSTINIAN. [BOOK III. who makes a payment, with intent to discharge his debts, does it with the intention to dissolve, rather than to contract an agreement He, nevertheless, who receives it, as aforesaid, by mistake, is bound precisely as if it had been given him as a Mutuum, or loan, and is liable to a condiction for its recovery. Section VII. In certain cases, however, money paid in error cannot be recovered; for the ancient jurists gave it as their opinion that where an action for double the amount of a debt lies upon the denial of it, as, for instance, in actions brought under the Aquilian Law, and in the case of legacies, the debtor can never recover money which he has paid by mistake. These jurists, however, only applied the rule in the case of fixed and certain legacies, devised by obligation on the heir. But our Imperial Constitution, which has placed all legacies and trusts on one and the same footing, has extended to legacies and trusts in general, this effect of denial in doubling the amount demanded. It has not, however, given to all legatees the privilege of not refunding what has been paid when not due, but has restricted it to legacies to churches and other holy places, which are consecrated for the uses of religion and piety. TITLE 28. OF PERSONS THROUGH WHOM OBLIGATIONS ARISE. HAVING now explained the various kinds of obligation which arise from contracts, or from implied or quasi-contracts, TITLE 28.] PERSONS THROUGH WHOM OBLIGATIONS ARISE. 221 we may now observe that we acquire an obligation, not by ourselves alone, but by those also who are in our power ; as by our slaves or children. That, however, which is acquired by our slaves is absolutely ours : but that which is acquired by the obligation of our children, is divided according to the rule in our Constitution laid down, as to the usufruct, and the property of the things. So that, of the profits of any action, the father has the usufruct, but the ownership will be received for the son; that is, when the father brings the action in conformity with the regulations of our new Constitution. Section I. An obligation is also acquired for us by free-men, and by the slaves of others, in whom we have a bond fide possession. This, however, is but in two cases ; namely, if the acquisition arise from their own labour, or from something which belongs to us. Section II. In the like cases, also, an obligation is acquired for us by a slave of whom we have only the usufruct, or use. Section III. A slave, the common property of several masters, undoubtedly acquires for his masters, in proportion to the property which each has in him ; unless he stipulate or receive something for one only, whom he mentions by name, when he acquires for this one alone ; as, for instance, if he stipulate thus, " Do you engage to give to Titius, my master ?" And though formerly it was doubted whether a slave who had stipulated by order of one only of his masters, could acquire for him alone who had given him the order, yet since the publication of our Constitution there can be no doubt of his ability to do so. 222 THE INSTITUTES OF JUSTINIAN. [BOOK III. TITLE 29. OF THE EXTINCTION OF OBLIGATIONS. EVERY obligation is extinguished by the payment, of that which is due ; or by the payment, with consent of the creditor, of some thing instead of that which is actually due. And it is immaterial whether the payment be made by the debtor himself, or by some other person on his behalf; for he is freed from the obligation, if payment be made by a third party, and that whether with or without his consent, or even against his will. Also if the debtor himself pay, all who have become surety for him are thereby set free. The same is the case if the surety make the payment ; not only is he set free, but the obligation of the debtor to the creditor is extinguished also. Section I. An obligation is also extinguished by acceptila- tion ; which is a feigned payment. For example, if Titius be willing to grant a discharge for what is due to him by a verbal contract, he may do so by allowing the following question to be put to him by the debtor, " Do you acknowledge that you have received that which I promised you ?" and by himself saying in reply, " I do." An acceptation may also be worded in Greek provided it be in form similar to that in Latin, which we have above given. Obligations, then, arising from verbal contracts are so extinguished, but not obligations of any other kind ; and it seems, indeed, appropriate that a contract formed by words, should be by words extinguished. But any other kind of obligation may be reduced to the form of a stipulation, and so extinguished by an acceptilation. And as a debt may be paid in part, so also there may be an acceptilation of part Section II. A new kind of stipulation, called the Aquilian, TITLE 29.] OF THE EXTINCTION OF OBLIGATIONS. 223 has been framed, by virtue of which an obligation of any kind may be reduced to the form of a stipulation, and so afterwards dissolved by acceptilation. The Aquilian stipulation effects a novation of all obligations, i. e. substitutes one liability, or obligation for another, and was framed by Gallus Aquilius, in the terms following: Aulus Agerius stipulated that Numerius Negidius should give him a certain sum of money in lieu of, " whatever, for any cause, you are, or shall be bound to give to or do for me, either or at any future day, absolutely or upon condition ; whatever does or may entitle me to maintain against you any actions, whether personal or real, or any prosecutions; whatever property of mine you have, detain, or possess, or of which you have fraudulently quitted possession ; be the value of such property, as it may." Numerius Negidius did so engage, and said " I do." Then after this was done, Numerius asked Aulus, saying, " Do you consider as accepted and received, all that by the Aquilian stipulation I have this day promised ?" To which Aulus answered that he did consider that it was by him accepted and received. Section III. An obligation is also extinguished by nova- tion ; as, for instance, if Seius stipulate from Titius, for that which is due from you to Seius. For, by the intervention of a new person, a new obligation arises, and the first obligation is extinguished by being merged in the second ; so much so, that it may happen, that the former stipulation, by the effect of the novation, is extinguished, even though the latter be not valid; as, for example, if Titius were to stipulate from a ward, without the authority of his tutor, for a debt which you owe to Titius; in this case, the whole claim of Titius is extinguished, for the first debtor is discharged, and the second obligation is null. The case, however, is not the same, if the second stipulation have been made with a slave; for then the original debtor remains bound, as much as though the second stipulation had never been made. And if the second 224 THE INSTITUTES OP JUSTINIAN. [BOOK 111. stipulation be made with the original debtor, there will be no novation, unless the second obligation be different from the former; as, for example, the addition or suppression of a condition, a term, or a surety. But, the assertion that the addition of a condition causes novation, must be understood to mean that if the fresh condition be accomplished, the novation takes effect ; but that if it be not accomplished, the former obligation remains binding. The jurists of old held, that there was novation, when the second obligation was entered into for the purpose and with the intention of making the novation ; wherefore it often became a matter of considerable doubt, as to whether this intention of making a novation did exist, and divers authorities delivered divers opinions, according to the different cases they had to settle. For this reason, therefore, our Constitution was published, which expressly laid it down, that novation shall take place only when the contracting parties have expressly declared their intention to make the new as a dissolution of the old contract ; and where this is not the case, the first obligation shall continue binding, and the second also, as an accession to the first ; so that, both the first contract and the second, will give an obligation still binding, according to the provisions of our Constitution aforesaid, which may be learnt more fully by a perusal of the Constitution itself. Section IV. We must in addition remark, that obligations contracted by consent, are dissolved by dissent. For if Titius and Seius have agreed that Tititus shall sell, and Seius buy the Tusculan estate for a hundred pieces ; and afterwards, before the contract has been executed, that is, before the money has been paid, or land delivered, they agree to annul the sale, they are reciprocally set free. The like rule holds in cases of letting and hiring, and in all other contracts formed by consent alone. END OF BOOK HI. BOOK IV. TITLE 1. OF OBLIGATIONS WHICH ARISE FROM WRONG. Now that we have, in the preceding Book, treated of obligations arising from contract, and from implied or quasi-contract, let us turn to the consideration of obligations arising from wrong, and from implied or quasi-wrong. The obligations discussed in the last Book are, as we have said, divided into four species; but those of which we are now about to speak form but one species ; for they all spring from the thing, that is, from the wrong itself; as from theft, robbery, injury to property, or wrong. Section I. Theft is the fraudulent taking of a thing, or of its use, or of its possession ; a thing which is forbidden by the Law of Nature. Section II. The word furtum i. e. y " theft", is derived fromfurvum i. e., "black" because it is committed secretly, and usually in the night ; or from fraus z. e. y " fraud" ; or from ferre i. e., " to carry away" ; or from the Greek