Text and translation based on The Institutes of Gaius. Parts One and Two. Text with Critical Notes and Translation. ed. Francis de Zulueta (2 vols. Oxford: Clarendon Press, 1946)
THE FOUR COMMENTARIES OF GAIUS ON THE INSTITUTES OF THE CIVIL LAW
Law of Persons
I. CONCERNING CIVIL AND NATURAL LAW.
(1) All peoples who are ruled by laws and customs partly make use of their own ius, and partly have recourse to to the ius which are common to all men; for what every people establishes as ius is their own and is called the ius civile, just as the ius of their own city; and what natural reason establishes among all men and is observed by all peoples alike, is called the ius gentium, as being the ius which all nations employ. Therefore the Roman people partly make use of their own ius, and partly avail themselves of the ius common to all men, which matters we shall explain separately in their proper place.
Omnes populi, qui legibus et moribus reguntur, partim suo proprio, partim communi omnium hominum iure utuntur: Nam quod quisque populus ipse sibi ius constituit, id ipsius proprium est vocaturque ius civile, quasi ius proprium civitatis; quod vero naturalis ratio inter omnes homines constituit, id apud omnes populos peraeque custoditur vocaturque ius gentium, quasi quo iure omnes gentes utuntur. Populus itaque Romanus partim suo proprio, partim communi omnium hominum iure utitur. Quae singula qualia sint, suis locis proponemus.
(2) The iura of the Roman people consists of laws, plebiscites, decrees of the Senate, constitutions of the princeps, the edicts of those who have the right to promulgate them, and the opinions of jurists.
Constant autem iura populi Romani ex legibus, plebiscitis, senatus consultis, constitutionibus principum, edictis eorum, qui ius edicendi habent, responsis prudentium.
(3) A lex is what the people order and establish. A plebiscite is what the plebs order and establish. Moreover, the plebs is distinguished from the people by the fact that the entire body of citizens including the patricians, is designated by the term, "the people"; but the other citizens, without the patricians, are called plebs; for which reason the patricians formerly declared that they were not bound by plebiscites, as they were enacted without their authority; but subsequently the Lex Hortensia was passed, by which it was provided that plebiscites should bind the entire people; and hence, in this way, they were given equality with leges.
Lex est quod populus iubet atque constituit. Plebiscitum est, quod plebs iubet atque constituit. Plebs autem a populo eo distat, quod populi appellatione universi cives significantur, connumeratis et patriciis; plebis autem appellatione sine patriciis ceteri cives significantur; unde olim patricii dicebant plebiscitis se non teneri, quia sine auctoritate eorum facta essent; sed postea lex Hortensia lata est, qua cautum est, ut plebiscita universum populum tenerent: Itaque eo modo legibus exaequata sunt.
(4) A Decree of the Senate is what the Senate orders and establishes, and therefore it obtains the force of law, although this formerly was disputed.
Senatusconsultum est, quod senatus iubet atque constituit; idque legis vicem optinet, quamvis [de ea re] fuerit quaesitum.
(5) An Imperial Constitution is what the Emperor establishes by a decree, an edict, or a letter, and there was never any doubt that it had the force of a law, as the Emperor himself derives his authority from a statute.
Constitutio principis est, quod imperator decreto vel edicto vel epistula constituit. Nec umquam dubitatum est, quin id legis vicem optineat, cum ipse imperator per legem imperium accipiat.
(6) The magistrates of the Roman people have the ius of promulgating edicts, but the highest authority attaches to the edicts of the two praetors, the urban and the foreign, whose jurisdiction is vested in the governors of the provinces; as well as to the edicts of the curule Aediles, whose jurisdiction the quaestors administer in the provinces of the Roman people, for quaestors are not appointed in the provinces of the Emperor and, therefore, the latter edict is not published in these provinces.
Ius autem edicendi habent magistratus populi Romani. Sed amplissimum ius est in edictis duorum praetorum, urbani et peregrini, quorum in provinciis iurisdictionem praesides earum habent; item in edictis aedilium curulium, quorum iurisdictionem in provinciis populi Romani quaestores habent; nam in provincias Caesaris omnino quaestores non mittuntur, et ob id hoc edictum in his provinciis non proponitur.
(7) The answers of jurists are the decisions and opinions of those who are authorized to define the ius. If the opinions of all of them agree in one, that, if they so think, has the force of lex. If they disagree, the judge may decide which opinion to follow, as a rescript of the Divine Hadrian indicated.
Responsa prudentium sunt sententiae et opiniones eorum, quibus permissum est iura condere. Quorum omnium si in unum sententiae concurrunt, id, quod ita sentiunt, legis vicem optinet; si vero dissentiunt, iudici licet quam velit sententiam sequi; idque rescripto divi Hadriani significatur.
II. CONCERNING THE DIVISIONS OF THE LAW.
(8) All the ius which we make use of has reference either to persons, to things, or to actions. Let us first consider persons.
Omne autem ius, quo utimur, vel ad personas pertinet vel ad res vel ad actiones. Sed prius videamus de personis.
III. CONCERNING THE DIFFERENT CONDITIONS OF MEN.
(9) The principal division of the ius of persons is the following, namely, that all men are either free or slaves.
Et quidem summa divisio de iure personarum haec est, quod omnes homines aut liberi sunt aut servi.
(10) Again, men who are free are either freeborn or freedmen.
Rursus liberorum hominum alii ingenui sunt, alii libertini.
(11) Freeborn are those who are free by birth, freedmen are those who have been manumitted from legal slavery.
Ingenui sunt, qui liberi nati sunt; libertini, qui ex iusta servitute manumissi sunt.
(12) Moreover, there are three classes of freedmen, namely, Roman citizens, Latins, and dediticii. Let us consider each of these separately, and, in the first place, dediticii.
IV. CONCERNING DEDITICII AND THE PROVISIONS OF THE LEX ÆLIA SENTIA.
(13) It is provided by the Lex Aelia Sentia that slaves who have been placed in chains by their masters, or have been branded, or have been subjected to torture for some offence and convicted, or have been delivered up to fight with others or with wild beasts, or to contend with gladiators, or have been thrown into prison and have afterwards been manumitted by the same, or by another master, shall become free, and belong to the same class as that of enemies who have surrendered at discretion.
V. CONCERNING ENEMIES WHO HAVE SURRENDERED AT DISCRETION.
(14) Those enemies are called dediticii who, having formerly taken up arms and fought against the Roman people afterwards have been conquered and have surrendered at discretion.
(15) From this it is evident that slaves who have been guilty of criminal acts of this kind, no matter in what way, or at what age they may have been manumitted, and even though their masters had complete authority over them, can never become either Roman citizens or Latins, but must always be classed among enemies who have surrendered at discretion.
(16) If, however, a slave has not been guilty of such criminality, we declare that by manumission he sometimes becomes a Roman citizen, and sometimes a Latin.
(17) Where the following three requisites are combined in the person of a slave, that is to say where he is over thirty years of age, where his master is invested with full civil rights, and he is set free by proper and lawful manumission through the intervention of the prætor, by enrollment on the register of the census, or by will, he becomes a Roman citizen; if, however, one of these requisites should be lacking, he will become a Latin.
VI. CONCERNING MANUMISSION, AND PROOF OF THE REASON FOR IT.
(18) The requisite of the age of the slave was introduced by the Lex Aelia Sentia, for this law did not permit slaves under the age of thirty years, who had been manumitted, to become Roman citizens unless they were set free by the wand of the prætor, after proof of good reason for the manumission had been established in the presence of the Council.
(19) A good reason for manumission exists where, for instance, anyone offers for manumission before the Council a natural son or daughter, or brother or sister, or foster-child or teacher, or a slave with the intention of appointing him a steward, or a female slave on account of prospective marriage.
VII. CONCERNING THE CONSTITUTION OF THE COUNCIL.
(20) The Council in the City of Rome consists of five senators and five Roman knights of the age of puberty. In the provinces it consists of twenty magistrates who are Roman citizens, and who are convoked on the last day of the term. At Rome, however, manumissions take place in the presence of the Council upon certain days. Slaves who are more than thirty years of age can be manumitted at any time, and the ceremony can be performed even while walking in the streets, as for instance, when the prætor or the proconsul is on his way to the bath or the theatre.
(21) A slave, who was under the age of thirty years when manumitted, can become a Roman citizen if he was granted his freedom and appointed heir by the will of his master who died insolvent.
(22) Slaves manumitted in certain ways are called Latini Juniani; Latini for the reason that they are classed with Latin colonists, Juniani because they received their freedom under the terms of the Lex Junia, as before it was passed they were considered slaves.
(23) The Lex Junia does not, however, permit them either to make a will, or to take under the will of another, or to be appointed testamentary guardians.
(24) What we have said with reference to their being unable to take under a will must be understood to mean that they cannot take anything directly as heirs, or legatees, but, on the other hand, they have a right to take under the terms of a trust.
(25) Those, however, who belong to the class of dediticii can, under no circumstances, take under a will, any more than a foreigner; nor can they, in accordance with a majority of the decisions, themselves make a will.
(26) Hence, only the lowest degree of freedom is possessed by those who belong to the class of dediticii nor is any way afforded them of obtaining Roman citizenship either by a law, by a Decree of the Senate, or by an Imperial Constitution.
(27) Moreover, they are forbidden to dwell in the City of Rome or within the hundredth mile-stone of the Capitol; and if they should disobey, they and their property are ordered to be publicly sold under the condition that they shall remain slaves beyond the hundredth milestone of the City of Rome, and that they shall never be manumitted; and if they should be manumitted, they are ordered to become the slaves of the Roman people; and these things are included in the Lex Aelia Sentia.
IN WHAT WAY LATINS MAY OBTAIN ROMAN CITIZENSHIP.
(28) Latins obtain Roman citizenship in many ways.
(29) For, by the Lex Aelia Sentia, where slaves under the age of thirty years are manumitted and become Latins, if they marry either women who are Roman citizens or Latin colonists, or those who belong to the same condition as themselves, and prove this by the testimony of not less than seven Roman citizens who have arrived at the age of puberty; and they have sons, and the latter are a year old, authority is granted them by this law to appear before the prætor — or, in the provinces before the governor — and prove that they have married wives in accordance with the terms of the Lex Aelia Sentia, and have sons by them who are a year old; and if the magistrate before whom this proof is adduced should declare it to be true, then the Latin and his wife, provided she and her son are of the same condition, are ordered to become Roman citizens.
(30) I added the clause, "If the son is of the same condition", for the reason that if the wife of the Latin aforesaid is a Roman citizen, her son is a Roman citizen by birth under the terms of the recent Decree of the Senate promulgated by the Divine Hadrian.
 Original manuscript illegible.
(31) This right of acquiring Roman citizenship, though at first only conferred upon those who had been manumitted under thirty years of age and had become Latins by the Lex Ælia Sentia, was afterwards, by a Decree of the Senate issued under the consulship of Pegasus and Pusio, granted to all Latins, even though they were more than thirty years of age at the time when they were manumitted.
(32) However, even if the Latin should die before he was able to prove that his son was a year old, the mother of the latter can prove his condition, and hence both she and her son (if she is a Latin) will become Roman citizens. If the mother should not be able to prove this, the son himself can do so when he reaches the age of puberty. If the son himself is a Roman citizen, for the reason that he is born of a mother who is a Roman citizen, he must still prove his condition in order to become the heir of his father.
(32a) What we have stated with reference to a son being a year old we also understood to apply to a daughter of the same age.
(32b) Moreover, by the Lex Visellia, persons become Roman citizens, where by manumission they have become Latins, when either under or over thirty years of age, if they have served for six years in the guards at Rome. A Decree of the Senate is said to have been subsequently enacted by which Roman citizenship was bestowed on Latins if they had served for three years in the army.
(32c) Likewise, by an Edict of the Divine Claudius, Latins obtain the rights of Roman citizens if they build a ship with a capacity not less than ten thousand measures of grain, and the said ship, or one substituted for it, should transport grain to Rome for the term of six years.
(33) Moreover, it was established in an Edict published by Nero that if a Latin who had property worth two hundred thousand sesterces, or more, should build a house in the City of Rome on which he expended not less than half his estate, he should obtain the right of Roman citizenship.
(34) Finally, the Divine Trajan decreed that if a Latin should exercise the calling of a miller in the City of Rome for the term of three years, and should grind each day not less than a hundred measures of grain, he could acquire Roman citizenship.
(35) Slaves who become Latins either because they are under thirty years of age when manumitted, or, being over that age, have been informally manumitted, may become Roman citizens by being again manumitted either by the wand of the prætor, or by inscription on the register of the census, or by will; and in either of these cases they become the freedmen of the party who manumitted them a second time. Therefore, if a slave forms part of your property by bonitarian right and belongs to me by quiritarian right, he can be made a Latin solely by you, and he can be manumitted a second time by me but not by you, and in this way he will become my freedman; and if he obtains the right of citizenship in other ways he still will be my freedman.
The possession of his estate at the time of his death is however granted to you, no matter in what way he may have obtained Roman citizenship. But, if he is manumitted by one who has in him both bonitarian and quiritarian rights he can be manumitted by the said party, and become both a Latin and a Roman citizen.
(36) Every one who desires to manumit a slave is not permitted to do so.
(37) For he who manumits a slave for the purpose of defrauding his creditors or his patron, commits an act which is void, for the reason that the Lex Ælia Sentia prevents the grant of freedom.
(38) Likewise, by the same law a minor owner under the age of twenty years is not permitted to manumit a slave, except by the intervention of the prætor, after proper cause has been shown for the manumission in the presence of the Council.
(39) The following are proper causes for manumission, for instance, where anyone manumits his father, his mother, his teacher, or his foster-brother. Moreover, the reasons which we have designated above with reference to a slave under thirty years of age may be adduced also in the case of which we speak; and likewise, on the other hand, the same reasons which we stated with reference to an owner under the age of twenty years may be advanced where the slave is less than thirty years old.
(40) Therefore, as a certain restriction on the manumission of slaves is imposed upon owners under the age of twenty years by the Lex Ælia Sentia, the result is that anyone who has completed his fourteenth year, although he can make a will, appoint an heir to his estate, and bequeath legacies, still, if he is under the age of twenty years, he cannot grant freedom to his slave.
(41) And even though an owner under the age of twenty years may desire to constitute a slave a Latin, he must, nevertheless, prove before the Council, that he has a good reason for doing so, and afterwards manumit the said slave in the presence of friends.
(42) Moreover, by the Lex Fufia Caninia a certain limit is established with reference to the manumission of slaves by a will.
(43) Hence, he who has more than two slaves and not more than ten, is permitted to manumit as many as half of that number. He, however, who has more than ten and not more than thirty slaves, is permitted to manumit a third of that number; and he who has more than thirty slaves and not more than a hundred, is granted authority to manumit one fourth of his slaves. Finally, he who has more than one hundred and not more than five hundred, is not permitted to manumit more than a fifth; and, no matter how many slaves a man may have, he is not permitted to manumit more than this, as the law prescribes that no one shall have the right to manumit more than a hundred. Still, where anyone has only one or two slaves, his case does not come under this law, and therefore he has free power of manumission.
(44) Nor does this law have any reference whatever to persons who manumit in any way except by will, and therefore those who do so either in the tribunal of the Prætor, or by enrollment on the registers of the census, or in the presence of friends, are permitted to liberate their entire bodies of slaves; provided however, that no other reason prevents their receiving their freedom.
(45) What we have stated with reference to the number of slaves which can be manumitted by will should be understood to mean that where a man has a right to liberate the half, the third, the fourth, or the fifth part of his entire body of slaves, he shall in no case be restricted to a smaller number than he would have been permitted to manumit had the estimate been made according to the next preceding scale. This provision is in accordance with reason, for it certainly would be absurd for any one to be permitted to liberate five out of his ten slaves, because he is granted authority to manumit half of that number; while another, having twelve slaves, would not be permitted to manumit more than four; and anyone who has more than ten and not more than thirty, under the same rule should be permitted also to manumit five, the same number which he who has ten is allowed to liberate.
(46) If freedom should be granted by a testator in his will to a greater number of slaves than is above mentioned, and the names are written in a circle so that no order of manumission can be ascertained, none of the said slaves shall become free; because the Lex Fufia Caninia, as well as other special Decrees of the Senate, have declared all testamentary provisions devised for the purpose 01 evading the law to be void.
(47) In conclusion, it should be noted that, as it is provided by the Lex Ælia, Sentia that slaves who have been manumitted for the purpose of defrauding a patron, or creditors, do not become free; for the Senate, at the suggestion of the Divine Hadrian, decreed that this rule should also apply to foreigners, while the other provisions of the same law do not apply to them.
(48) There is another division with reference to the ius of persons, for some persons are independent (sui iuris), and some are subject to the ius of others.
Sequitur de iure personarum alia divisio. Nam quaedam personae sui iuris sunt, quaedam alieno iuri sunt subiectae.
(49) Again, of those persons who are subject to the ius of another, some are in his power, others are in his hand, and others are considered his property.
Sed rursus earum personarum, quae alieno iuri subiectae sunt, aliae in potestate, aliae in manu, aliae in mancipio sunt.
(50) Let us now consider those that are subject to the ius of another, for, when we ascertain who they are, we shall then understand what persons are independent (sui iuris).
Videamus nunc de iis, quae alieno iuri subiectae sint: Nam si cognoverimus, quae istae personae sint, simul intellegemus, quae sui iuris sint.
(51) In the first place, let us examine those who are in the power of another.
Ac prius dispiciamus de iis, qui in aliena potestate sunt.
(52) Slaves are in the power of their masters, and this power is acknowledged by the ius gentium, for we know that among all nations alike the master has the power of life and death over his slaves, and whatever property is acquired by a slave is acquired by his master.
In potestate itaque sunt servi dominorum. Quae quidem potestas iuris gentium est: Nam apud omnes peraeque gentes animadvertere possumus dominis in servos vitae necisque potestatem esse, et quodcumque per servum adquiritur, id domino adquiritur.
(53) At the present time, however, neither Roman citizens nor any other persons who are under the empire of the Roman people are permitted to employ excessive or causeless severity against their slaves; for by a constitution of the Most Holy Emperor Antoninus anyone who kills his slave, without good reason, is not less liable than one who kills the slave of another; and the excessive harshness of masters is restrained by another constitution of the same Emperor; for he, having been consulted by certain governors of provinces with reference to slaves who flee for refuge to the temples of the Gods or the statues of the Emperor, ordered that if the cruelty of masters appeared to be intolerable, they should be compelled to sell their slaves; and in both cases he acted justly, for we should not make a bad use of our rights, in accordance with which principle the administration of their own property is forbidden to spendthrifts.
Sed hoc tempore neque civibus Romanis nec ullis aliis hominibus, qui sub imperio populi Romani sunt, licet supra modum et sine causa in servos suos saevire: Nam ex constitutione sacratissimi imperatoris Antonini, qui sine causa servum suum occiderit, non minus teneri iubetur, quam qui alienum servum occiderit. Sed et maior quoque asperitas dominorum per eiusdem principis constitutionem coercetur: Nam consultus a quibusdam praesidibus provinciarum de his servis, qui ad fana deorum vel ad statuas principum confugiunt, praecepit, ut si intolerabilis videatur dominorum saevitia, cogantur servos suos vendere. Et utrumque recte fit: Male enim nostro iure uti non debemus; qua ratione et prodigis interdicitur bonorum suorum administratio.
(54) But, as among Roman citizens, a double ownership may exist (for a slave is understood to be subject to bonitarian or quiritarian right or to belong to both these classes) so we merely say that a slave is in the power of his owner if he forms part of his property by bonitarian right, even if at the same time he may not belong to him by quiritarian right; for anyone who has the bare quiritarian right in a slave is not understood to have him in his power.
(55) In like manner, our children whom we have produced in lawful marriage are under our control. This right is singular to Roman citizens, for there are hardly any other men who have such authority over their children as we have, and this the Divine Hadrian stated in the Edict which he published with reference to persons who petitioned for Roman citizenship for themselves and for their children, for he said: "It does not escape my knowledge that the Galatians hold that children are in the power of their parents."
Item in potestate nostra sunt liberi nostri, quos iustis nuptiis procreavimus. Quod ius proprium civium Romanorum est (fere enim nulli alii sunt homines, qui talem in filios suos habent potestatem, qualem nos habemus) idque divi Hadriani edicto, quod proposuit de his, qui sibi liberisque suis ab eo civitatem Romanam petebant, significatur. Nec me praeterit Galatarum gentem credere in potestate parentum liberos esse.
(56) Roman citizens who have contracted marriage according to the Civil Law and who have produced children are understood to have those children in their power if they marry Roman citizens, or even Latins or foreigners whom they have the right to marry; for the result of legal marriage is that the children follow the condition of the father and not only are Roman citizens by birth, but also become subject to paternal authority [patria potestas].
Iustas autem nuptias contraxisse liberosque iis procreatos in potestate habere cives Romani ita intelleguntur, si cives Romanas uxores duxerint vel etiam Latinas peregrinasve, cum quibus conubium habeant: Cum enim conubium id efficiat, ut liberi patris condicionem sequantur, evenit, ut non solum cives Romani fiant, sed et in potestate patris sint [paterfamilias].
(57) Therefore, certain veterans are usually granted permission by the Imperial Constitutions to contract civil marriage with those Latin or foreign women whom they first marry after their discharge, and the children born of such unions become Roman citizens by birth, and are subject to the authority of their fathers.
(58) Nor are we permitted to marry any free woman, as we should refrain from contracting matrimony with certain women.
Nec tamen omnes nobis uxores ducere licet: Nam a quarundam nuptiis abstinere debemus.
(59) For marriage cannot be contracted between persons who sustain to one another the relation of ascendants and descendants, nor can legal matrimony exist between them; for instance, between father and daughter, mother and son, or grandfather and granddaughter; and if such persons form unions they are said to have contracted nefarious and incestuous marriages.
Inter eas enim personas, quae parentum liberorumve locum inter se optinent, nuptiae contrahi non possunt, nec inter eas conubium est, velut inter patrem et filiam vel inter matrem et filium vel inter avum et neptem; et si tales personae inter se coierint, nefarias et incestas nuptias coutraxisse dicuntur. Et haec adeo ita sunt, ut quamvis per adoptionem parentum liberorumve loco sibi esse coeperint, non possint inter se matrimonio coniungi, in tantum, ut etiam dissoluta adoptione idem iuris maneat; itaque eam, quae mihi per adoptionem filiae seu neptis loco esse coeperit, non potero uxorem ducere, quamvis eam emancipaverim.
To such an extent does this rule apply that, although the relationship of parents and children may have been established by adoption, they cannot contract matrimony with one another, and even if the adoption has been dissolved, the same rule of law will continue to apply; so that I could not take as a wife a woman who sustains to me the relationship of daughter or granddaughter by adoption, even if I have emancipated her.
(60) This rule also applies to persons related in the collateral degree, but not to the same extent.
(61) Marriage is indeed prohibited between brother and sister, whether they are born of the same father or mother or merely of one of these parents in common; but although legal marriage cannot take place between me and my sister by adoption as long as the adoption continues to exist, still if the adoption is dissolved by emancipation I can marry her, and if I should be emancipated, no impediment to the marriage will exist.
(62) It is lawful for a man to marry the daughter of his brother, and this first became customary when the Divine Claudius married Agrippina, his brother's daughter, but it is not lawful for anyone to marry his sister's daughter, and this rule is stated in the Imperial Constitutions. It is likewise illegal for a man to take as his wife his paternal or maternal aunt.
(63) Moreover, I cannot marry my former mother-in-law or daughter-in-law, or my step-daughter or step-mother. We make use of the word "former," because if the marriage by which affinity of this kind was established is still in existence, there is another reason why I cannot marry her, for a woman cannot marry two men, nor can a man have two wives.
(64) Therefore, if anyone should contract a nefarious and incestuous marriage he is considered to have neither a wife nor children, hence the issue of such a union are considered to have a mother but no father, and for this reason are not subject to paternal authority, but resemble children whom the mother has conceived through promiscuous intercourse; and they, in like manner, are understood to have no father, as he also is uncertain; therefore they are ordinarily called illegitimate children, either from the Greek word meaning conceived indiscriminately, or because they are children without any father.
(65) It sometimes happens that children when born are not under the control of their fathers but are afterwards subjected to their authority.
(66) For instance, under the Lex Ælia Sentia, if a Latin, after having married, should have a son who is a Latin by a Latin mother, or who is a Roman citizen by a Roman mother, he will not have him under his control; but if he should afterwards obtain the right of Roman citizenship by the evidence required by law, his son will, at the same time, be brought under his power.
(67) Likewise, if a Roman citizen should marry a Latin or a foreign woman through ignorance, believing that she was a Roman citizen, and should have a son, the latter will not be under his control because he will not be a Roman citizen, but either a Latin or a foreigner; that is to say, he will belong to the same condition as his mother, as no child follows the condition of its father unless the right to legal marriage existed between its parents; but by a Decree of the Senate it is permitted to prove the cause of error, and in this way the wife and the son will both obtain Roman citizenship, and the son will, from that time, begin to be under the control of his father. The same rule applies where a Roman citizen marries a woman belonging to the class of the dediticii, except that the wife does not become a Roman citizen.
(68) Moreover, if a female Roman citizen should, through mistake, marry a foreigner under the impression that he was a Roman citizen, she will be permitted to prove the cause of error, and in this way both her son and her husband will obtain Roman citizenship, and, at the same time, the son will begin to be subject to the authority of the father. The same rule also applies if the woman marries a foreigner as a Latin under the terms of the Lex Ælia Sentia, as provision for a case of this kind is specially made by the Decree of the Senate. Again, the same rule applies to a certain extent if she should marry a man belonging to the class of the dediticii, as being either a Roman citizen or a Latin under the provisions of the Lex Ælia Sentia, except that her husband belonging to the class of the dediticii remains in the same condition, and therefore his son, although he becomes a Roman citizen, is not subjected to the authority of his father.
(69) Likewise, if a Latin woman should marry a foreigner believing him to be a Latin in accordance with the Lex Ælia, Sentia, on the birth of a son she can, under the Decree of the Senate, prove the cause of her error, and then all the parties will become Roman citizens, and the son will pass under the control of his father.
(70) The same rule has been established where a Latin man marries a woman who is a foreigner under the impression that she is either a Latin or a Roman citizen, with a view to taking advantage of the Lex Ælia Sentia.
(71) Moreover, a Roman citizen who thinks that he is a Latin, and for this reason marries a Latin woman, will be permitted to prove the cause of his error in case of the birth of a son, just as if he had married his wife under the provisions of the Lex Ælia Sentia. Likewise, those who being Roman citizens think that they are foreigners and marry foreign women, are permitted by the Decree of the Senate, on the birth of a son, to prove the cause of their error; and this having been done, the wife becomes a Roman citizen, and the son not only obtains to Roman citizenship but also is brought under the authority of his father.
(72) Whatever we have said with reference to a son is also understood to apply to a daughter.
(73) And, so far as proving the cause of the error is concerned, as nothing with reference to this was provided by the Decree of the Senate, it makes no difference how old the son or daughter may be unless he or she should be a Latin; because it was also declared by the Lex Ælia Sentia that in this case if the son or daughter is less than a year old the cause cannot be proved. It has not escaped my observation that it was stated in a rescript of the Divine Hadrian, with reference to the proof of the cause of the error, that the child must be a year old, but the right did not seem to be of general application, as the Emperor issued the rescript under peculiar circumstances.
(74) If a foreigner, believing himself to be a Roman citizen, married a woman who is a Roman citizen, the question arises whether he could prove the cause of error under the Decree of the Senate. He could not do so, however, as this privilege is not granted by the Decree of the Senate to a foreigner, even though he, being mistaken, should have married a Roman citizen, unless this right was especially conferred upon him. But, when a foreigner married a woman who is a Roman citizen, and after a son was born, he obtained Roman citizenship in some other way, then when the question arose whether he could prove the cause of error, the Emperor Antoninus stated in a rescript that he could do so, just as if he had remained a foreigner; from which we gather that even a foreigner can prove the cause of error.
(75) From what we have said, it is apparent that where either a Roman citizen marries a foreign woman or a foreigner marries a woman who is a Roman citizen, the child born of the union is a foreigner. If, however, a marriage of this kind should have been contracted through mistake, the defect can be remedied in the manner which we explained above. But if no error took place, and the parties, aware of their condition, contracted marriage, the defect of an union of this kind can, under no circumstances, be remedied.
(76) We, however, are speaking of persons who have not the right to contract legal marriage; for, otherwise, if a Roman citizen should marry a foreign woman with whom civil marriage can be contracted as is stated above, a legal marriage takes place, and a son born to the parties is a Roman citizen, and will become subject to the authority of his father.
(77) Likewise, if a female Roman citizen should marry a foreigner who is entitled to contract a legal marriage, and a son is born, he will be an alien, and the lawful son of his father, just as if he had begotten him with a foreign woman. At the present time, however, by a Decree of the Senate enacted at the instance of the Divine Hadrian, even if the right of civil marriage did not exist between a woman who is a Roman citizen and a foreigner, the child born of the union is the lawful son of his father.
(78) What we have stated, however, with reference to a female Roman citizen marrying a foreigner, and their issue being an alien, is derived from the Lex Minicia, by which it is provided that where a child is born of an unequal marriage it follows the condition of the parent of inferior rank. On the other hand, it is provided by the same law that if a Roman citizen should marry a foreign woman with whom the right of legal marriage did not exist, the child born of this union will be a foreigner. The Lex Minicia was not especially necessary in a case of this kind, for, without this law, the child would have followed the condition of its mother, as this is the rule by the Law of Nations, among those between whom the right of civil marriage does not exist. This provision of the law which directs that the issue of a Roman citizen and a foreign woman shall be a foreigner seems to be superfluous, for even without this law this would be the case under the Law of Nations.
(79) Moreover, to such an extent does this rule apply that the issue of the marriage between a Roman citizen and a Latin woman follows the condition of its mother, for in the Lex Minicia not only are alien nations and peoples designated as "foreigners," but also those who are called Latins; and it also refers to other Latins who had their own peoples and states, and were included under the head of foreigners.
(80) On the other hand, by the same rule, the son of a Latin father and a mother who was a Roman citizen, whether the marriage was contracted under the provisions of the Lex Ælia Sentia or not, is born a Roman citizen. There were some authorities, however, who held that where a marriage was contracted under the Lex Ælia Sentia the child was born a Latin; for the reason that in this instance the right of legal marriage was conferred upon the parties by the Lex Ælia Sentia et Junia, and legal marriage always has the effect of giving the child the same condition as its father; for, if the marriage were otherwise contracted, the child, by the Law of Nations, would follow the condition of its mother, and for this reason would be a Roman citizen. We, however, make use of the rule established by the Decree of the Senate at the instance of the Divine Hadrian, by which it is declared that, under all circumstances, the child of a Latin man and a woman who is a Roman citizen is born a Roman citizen.
(81) In conformity with these provisions, the said Decree of the Senate, enacted at the instance of the Divine Hadrian, also prescribes that the issue of a Latin man and a foreign woman, as well as that of a foreign man and a Latin woman, follows the condition of the mother.
(82) The result of this is that the child of a female slave and a freeman is, by the Law of Nations, born a slave; and, on the other hand, the child of a free woman and a male slave is free by birth.
(83) We should note, however, whether any law or enactment having the force of law, in any case changes the rule of the Law of Nations.
(84) For example, under the Claudian Decree of the Senate, a woman who is a Roman citizen and has sexual intercourse with a slave belonging to another with the consent of his master will, in accordance with the agreement, remain free herself while she gives birth to a slave; for the contract entered into between her and the owner of the slave is declared to be valid by the Decree of the Senate. Afterwards, however, the Divine Hadrian, influenced by the injustice and impropriety of the law, restored the rule of the Law of Nations, so that as the woman herself remains free, her child is also born free.
(85) Likewise, by another law, children born of a female slave and a freeman could be born free; for it is provided by the said law that if anyone should have sexual intercourse with a female slave belonging to another and whom he believed to be free, and any male children should be born, they will be free; but any female children would be the property of him to whom their mother, the female slave, belonged. In this case, however, the Divine Vespasian, influenced by the impropriety of the law, restored the rule of the Law of Nations, so that, in every instance, even if female children should be born, they will become the slaves of the person who owned their mother.
(86) Another section of the same law remains in force, namely, that any children born to a free woman and a slave who is the property of another, and whom she knew to be a slave, are born slaves; hence among those who are not subject to this law, the child follows the condition of its mother by the Law of Nations, and on this account is free.
(87) In those cases, however, where the child follows the condition of the mother and not that of the father, it is perfectly clear that it is not subject to the authority of his father, even though the latter may be a Roman citizen; and therefore we stated above that in certain instances where a marriage which was not lawful was contracted through a mistake, the Senate could intervene and remedy the defect of the marriage, and in this way generally bring it about that the son should be subjected to the authority of his father.
(88) If a female slave should conceive by a Roman citizen and afterwards, having been manumitted, should become a Roman citizen and a child should be born, although the latter would be a Roman citizen like its father, it would still not be under the control of the latter, for the reason that it was not conceived in lawful marriage, and because an union of this kind is not declared to be legal by any decree of the Senate.
(89) The decision which was made that if a female slave should conceive by a Roman citizen and then, after having been manumitted, her child should be born free, is in accordance with natural law, for children who are illegitimately conceived assume their status at the time when they are born, and therefore, if they are born of a free woman, they will be free, nor does it make any difference by whom their mother conceived them while she was a female slave; but those who are lawfully conceived assume their status at the time of conception.
(90) Therefore, where a female citizen at Rome, who is pregnant at the time, is interdicted from fire and water, and for this reason having become a foreigner, gives birth to a child; many authorities make a distinction, and are of the opinion that, as she conceived in lawful marriage, her child is born a Roman citizen, but if she conceived as the result of promiscuous intercourse, her child will be an alien.
 This rule, as expressed in the maxim: "Partus sequitur ventrem," has always been recognized. It not only applied to slaves, but also to illegitimate children, with reference to whom it is everywhere in force to-day. — ed.
 Prohibition of the use of water and fire was a death penalty introduced by Sylla in the Lex Cornelia. The person upon whom it was imposed being by its terms excluded from the enjoyment of the absolute necessaries of life, was certain to perish miserably if the sentence had been literally executed, which it never was, in reality. It operated, however, as a forfeiture of civil rights, and was avoided by voluntary exile. Certain limits were prescribed within which the privileges of citizenship could not be exercised; and if the guilty party remained, he became a social outcast with whom all ordinary intercourse was prohibited, and whose acts were void in law. Those who were convicted of capital crimes either took refuge in foreign countries, or changed their residence beyond the radius prescribed by the sentence, trusting to good fortune or the efforts of their friends to have it annulled, and their disabilities removed by legislation, which was usually effected in the Comitia Centuriata where the trial had taken place. Many distinguished Romans were subjected to the interdiction from fire and water, among them Cicero, who was, in this way, banished four hundred miles from Rome. — ED.
(91) Likewise, where a woman who is a Roman citizen while pregnant, becomes a slave under the Claudian Decree of the Senate, for the reason that she had intercourse with a slave belonging to another, against the consent and protest of his master, many authorities make a distinction and hold that as the child was conceived in lawful marriage, it will be born a Roman citizen, but if it was conceived as the result of promiscuous intercourse, it will be born the slave of the person to whom his mother belongs.
(92) Again, if an alien woman should conceive as the result of promiscuous intercourse, and afterwards become a Roman citizen and bring forth a child, the latter will be a Roman citizen. If, however, she should conceive by an alien whom she married in accordance with foreign laws and customs, she will, under the terms of the Decree of the Senate enacted at the instance of the Divine Hadrian, be held to give birth to a Roman citizen, provided Roman citizenship has also been conferred upon the father.
(93) Where an alien has acquired Roman citizenship for himself and his children, the latter do not pass under the control of their father unless the Emperor should expressly cause them to do so; and this he only does when, after the case has been examined, he thinks that this would be advantageous to the children. He, moreover, makes a more diligent and minute investigation with reference to children who are under the age of puberty and absent; and this rule is set forth in an Edict of the Divine Hadrian.
(94) Likewise, where anyone with his wife, during her pregnancy, is presented with Roman citizenship, although the child, as we have mentioned above, is born a Roman citizen, he still does not pass under the control of his father; and this is stated in a rescript of the Divine Hadrian. For this reason if he knows that his wife is pregnant, and he petitions the Emperor for citizenship for himself and his wife, he should, at the same time, ask that his child shall be subjected to his authority.
(95) The rule is otherwise in the case of those who, together with their children, attain to Roman citizenship by the right of being Latins, for their children pass under their control.
(96) This right has been granted to certain foreign States, either by the Roman people, or by the Senate, or by the Emperor.
The right of Latinity is either greater or less. Greater Latinity is that of those who are elected decurions or administer any honorable office or magistracy, and by this means obtain Roman citizenship. The lesser right of Latinity is where only those who administer the office of magistrate or any other honorable employment attain to Roman citizenship; and this difference is referred to in many Imperial rescripts.
(97) Not only as we have stated are natural children in our power, but also those whom we adopt.
(98) Adoption takes place in two ways; either by the authority of the people, or by the command of the magistrate, as for instance, of the Prætor.
(99) We adopt, by the authority of the people, those who are their own masters, which kind of adoption is called arrogation, for the reason that he who adopts is asked, that is to say, interrogated, whether he desires to have the person whom he intends to adopt as his lawful son; and he who is adopted is asked whether he is willing to have this done; and the assembled people are asked whether they direct this to take place. By the command of the magistrate we adopt those who are under the control of their parents, whether they are in the first degree of descendants, as a son or a daughter, or whether they belong to an inferior degree, as a grandson or a granddaughter, a great-grandson or a great-granddaughter.
(100) Adoption by the people can only take place at Rome; and the other usually takes place in the provinces before the governors of the same.
(101) The better opinion is that women cannot be adopted by the voice of the people; but women may be adopted in the tribunal of the Prætor at Rome, or in the provinces in the tribunal of the proconsul or the lieutenant.
(102) The adoption of a child under the age of puberty by the vote of the people was at one time forbidden, and at another permitted; but at present, by the Epistle of the Emperor Antoninus addressed to the pontiffs, it is allowed under certain conditions, if there seems to be good cause for the adoption. We can, however, adopt persons of any age in the tribunal of the Prætor at Rome, or in the provinces in that of the proconsul, or the lieutenant.
(103) It is a rule common to both kinds of adoption that persons who are incapable of begetting children, such as eunuchs, can adopt.
(104) Women, however, cannot in any way adopt other persons, for the reason that they cannot exercise authority even over their natural children.
(105) Likewise, if anyone adopts another, either by the vote of the people, or by the consent of the Prætor or the governor of a province, he can give the son whom he has adopted in adoption to another.
(106) It is a question, however, with reference to both forms of adoption, whether a person can adopt another who is older than himself.
(107) It is peculiar to that kind of adoption which takes place by the vote of the people, that if he who gives himself to be arrogated has children under his control, he will not only himself be subject to the authority of the arrogator, but his children will also be under the control of the latter, as grandchildren.
(108) Now let us consider those persons who are in our hand, which right is also peculiar to Roman citizens.
(109) Both males and females are under the authority of another, but females alone are placed in the hands.
(110) Formerly this ceremony was performed in three different ways, namely, by use, by confarreation, and by coemption.
(111) A woman came into the hand of her husband by use when she had lived with him continuously for a year after marriage; for the reason that she was obtained by usucaption, as it were, through possession for the term of a year, and passed into the family of her husband where she occupied the position of a daughter. Hence it is provided by the Law of the Twelve Tables that if a woman was unwilling to be placed in the hand of her husband in this way, she should every year absent herself for three nights, and in this manner interrupt the use during the said year; but all of this law has been partly repealed by legal enactments, and partly abolished by disuse.
(112) Women are placed in the hand of their husbands by confarreation, through a kind of sacrifice made to Jupiter Farreus, in which a cake is employed, from whence the ceremony obtains its name; and in addition to this, for the purpose of performing the ceremony, many other things are done and take place, accompanied with certain solemn words, in the presence of ten witnesses. This law is still in force in our time, for the principal flamens, that is to say, those of Jupiter, Mars, and Quirinus, as well as the chief of the sacred rites, are exclusively selected from persons born of marriages celebrated by confarreation. Nor can these persons themselves serve as priests without marriage by confarreation.
(113) In marriage by coemption, women become subject to their husbands by mancipation, that is to say by a kind of fictitious sale; for the man purchases the woman who comes into his hand in the presence of not less than five witnesses, who must be Roman citizens over the age of puberty, and also of a balance-holder.
(114) By this act of sale a woman can not only make a coemption to her husband but also to a stranger, that is to say, the sale takes place either on account of marriage or by way of trust; for a woman who disposes of herself in this way to her husband for the purpose of occupying the place of his daughter is said to have done so on account of matrimony; but where she does this for some other purpose, either to a husband or to a stranger, as for instance in order to avoid a guardianship, she is said to have made a coemption by way of trust.
(115) The method by which this is done is as follows: If a woman wishes to get rid of her present guardians and obtain another in their stead, she makes this disposal of herself with their consent; and then the other party to the sale sells her again to him to whom she wishes to be her guardian, and he manumits her by the ceremony of the wand of the Prætor, and by this means becomes her guardian, and is designated a fiduciary guardian, as will hereafter appear.
(115a) Formerly a fiduciary coemption took place for the purpose of acquiring power to make a will, for women, with some exceptions, did not then have testamentary capacity unless they had made fictitious sales of this kind, and after having been resold, were manumitted; but the Senate, at the suggestion of the Divine Hadrian, abolished this necessity of making a fictitious sale.
(115b) Even if the woman makes a fiduciary sale of herself to her husband, she nevertheless occupies the place of his daughter; for if a wife comes into the hand of her husband for any reason whatsoever, it has been decided that she enjoys the rights of a daughter.
(116) It remains for us to explain what persons are subject to mancipation.
(117) All children of either the male or female sex who are under the control of their father can be mancipated by him in the same way as that in which slaves can be mancipated.
(118) The same rule of law applies to those persons who are in the hand of others, and they can be mancipated in the same way by those to whom they have been sold, just as children may be mancipated by their father; and while she who is married to the purchaser may only occupy the place of his daughter; still, though she may not be married to him, nor occupy the place of his daughter, she can still be mancipated by him.
(118a) Generally speaking, mancipation takes place either by parents or by those who obtain possession by coemption, when the parents and the so-called purchasers desire to release the persons from their authority, as will appear more clearly hereafter.
(119) Mancipation, as we have mentioned above, is a kind of fictitious sale, and the law governing it is peculiar to Roman citizens. The ceremony is as follows: After not less than five witnesses (who must be Roman citizens above the age of puberty) have been called together, as well as another person of the same condition who holds a brazen balance in his hand and is styled the "balance holder," the so-called purchaser, holding a piece of bronze in his hands, says: "I declare that this man belongs to me by my right as a Roman citizen, and let him be purchased by me with this piece of bronze, and bronze balance." Then he strikes the scales with the piece of bronze, and gives it to the so-called vendor as purchase money.
(120) In this manner both slaves and free persons are mancipated, as well as such animals as are subject to sale, among which are included oxen, horses, mules, and asses, as well as urban and rustic estates; for instance, Italian lands are usually disposed of in the same manner.
(121) The sale of land differs from the mancipation of other things, in that both slaves and free persons, as well as animals subject to mancipation cannot be disposed of in this way unless they are present; as it is necessary for him who acquires the object by mancipation to be able to grasp it with his hands, and the ceremony is designated mancipation because the property is seized with the hands. Lands, however, are usually mancipated at a distance.
(122) A piece of brass and a balance are employed for the reason that in former times only brazen money was in circulation, and this consisted of asses, double asses, half asses, and quarter asses; nor was any gold or silver coin in circulation, as we learn by the Law of the Twelve Tables. The value of the purchasing power of these coins was not estimated by their number, but by their weight; hence an as consisted of a pound of bronze, a double as of two pounds (whence it derived its name, which is still retained), while the half-asses and quarter-asses were estimated by their respective parts of a pound. Therefore, in former times, those who paid out money to anyone did not count it but weighed it, and the slaves who were permitted to disburse money were called "weighers."
(123) If anyone should ask what is the difference between coemption and mancipation, the reply is that the first ceremony does not reduce the party to a servile condition; but persons of either sex mancipated by parents or others are reduced to the condition of slaves, to such an extent that they cannot take either an estate or a legacy under the will of the party by whom they have been mancipated, unless they have been ordered to be free by the terms of the same will; just as the law is with reference to the persons of slaves. The reason for this distinction is clear, as the words used by parents and so-called purchasers are the same as those employed in the mancipation of slaves, but in the coemption of women this is not the case.
(124) Let us now consider in what ways those who are subject to the authority of another are released from it.
(125) And, in the first place, let us examine those who are under the power of others.
(126) We can understand from what has been stated above with reference to the manumission of slaves, how they are freed from the power of their masters.
(127) Children who are under the authority of their father become their own masters at his death. The following distinction, however, must be made, namely: When a father dies, his sons and his daughters always become independent; but when a grandfather dies, his grandsons and granddaughters do not, under all circumstances, become independent, but only where, after the death of their grandfather, they do not again pass under the control of their father. Therefore, if at the time of the death of their grandfather their father was living and was under the control of his father, they pass under the control of their father after the death of their grandfather; but if, at the time of the death of their grandfather, their father was either dead or had been released from the control of his father, then the grandchildren, for the reason that they cannot pass under his control, will become their own masters.
(128) As a person who, on account of the commission of some crime, has been interdicted from water and fire under the Lex Cornelia, loses his Roman citizenship, and for this reason is excluded from the number of Roman citizens, his children cease to be under his control, just as if he were dead; for reason does not permit that a person of the condition of an alien should have a Roman citizen subject to this authority. In like manner, if anyone who is in the power of his father is interdicted from water and fire, he ceases to be under his control, as it is not reasonable that a man of the condition of an alien should be under the parental authority of a Roman citizen.
(129) Even if the father should be taken captive by the enemy and thereby become the enemy's slave, nevertheless, his authority over his children remains in abeyance under the law of postliminium, by which those who were captured by the enemy and return, recover all their former rights; and, therefore, if he should return, he will have his children in his power. If, however, he should die while in captivity, his children will become their own masters; but it may be doubted whether this took place at the time when the father died in the hands of the enemy, or at the time when he was captured. Likewise, if the son himself, or a grandson, should be taken captive by the enemy, we say that the authority of the father remains in abeyance on account of the law of postliminium.
(130) Moreover, male children are released from paternal authority if they are installed priests of Jupiter; and females, if they are chosen Vestal Virgins.
(131) In former times also, when the Roman people were accustomed to establish colonies in Latin territory, sons, who, by the order of their father, placed their names upon the roll of the Latin colony, ceased to be under the control of their father, because they became citizens of another State.
(132) Again, children cease to be under parental authority by means of mancipation. A son, however, by three mancipations, and other children either of the male or female sex by a single mancipation, are released from parental authority; for the Law of the Twelve Tables only mentions three mancipations with reference to a son, as follows: "If a father sells his son three times, let him be free from the control of his father." This ceremony takes place in the following manner. The father sells his son to a third party, and the latter manumits him by the wand of the prætor, and by doing so, he is restored to the control of his father; and the latter then sells him a second time, either to the same person or to another (but it is customary to sell him to the same person); and he again manumits him in the same way, and by this act the son is again placed in the power of his father; and the father then sells him a third time, either to the same person or to another (it is customary, however, for him to be sold to the same person), and by virtue of this sale he ceases to be under the control of his father, even though he has not yet been manumitted, but still remains in the condition of one who has been sold.
(133) It should, however, be noted that one who has a son, and by him a grandson under his control, has full power to release his son from his control, and still to retain authority over his grandson; or, on the other hand, he has the right to manumit his grandson, or to render both parties their own masters. We understand that this rule also applies to great-grandsons.
(134) Again, parents also lose their authority over their children by giving them in adoption. Where a son is given in adoption, three sales are required, and two intervening manumissions must take place, as is customary when the father releases a son from his authority, in order that he may become his own master. Then, the son is either resold to the father and he who adopts him claims him as his son before the prætor; and, if his natural father does not claim him, he is given by the prætor to the party who claims him by adoption; or, if he is not sold again to his father, he who adopts him claims him from him to whom he was sold for the third time. It is, however, more convenient for him to be resold to his natural father. In the case of other offspring of either sex, one sale is sufficient, whether a resale is made to the natural father or not. The same ceremony ordinarily takes place in the provinces, in the presence of the governor.
(135) When a grandson is conceived after the first or second sale of a son, although he may not be born until after the third sale of his father, he, nevertheless, remains under the control of his grandfather, and may be emancipated, or given in adoption by him. A grandson, however, who is begotten after the third sale of a son, is not born under the control of his grandfather; but Labeo holds that he is born under the control of him to whom his father was sold. We, however, make use of the following rule, that as long as its father is in mancipation the right of the child remains in suspense; and if the father should be manumitted, the child will pass under his authority; but if he should die before the ceremony of mancipation has been completed, the child will become its own master.
(135a) We understand that the same rule applies to the case of a grandson who has been mancipated once, as it does to that of a son who has been mancipated three times, for, as we stated above, what three sales accomplished with reference to a son, one accomplishes in the case of a grandson.
(136) A woman placed in the hand of her husband by confarreation is not, for this reason, at present, released from paternal authority unless the ceremony of coemption has been performed; for it is provided by the Lex Asinia Antistia enacted during the Consulate of Cornelius Maximus and Tubero, with reference to priestesses of Jupiter being in the hand of their husbands as far as relates to the sacred rites; but in all other respects they are considered as not being under such restraint. Where, however, women are placed in the hand of their husbands by coemption, they are released from parental control; and it makes no difference whether they are placed in the hand of their husbands, or in that of strangers; although those alone are considered to occupy the place of daughters who are placed in the hand of their husbands.
(137) Women placed in the hand of their husbands by coemption cease to be subject to this authority in the same way as daughters under the control of their father; that is to say, either by the death of him in whose power they are, or because he has been interdicted from water and fire.
(137a) They also cease to be in the hand of their husbands by remancipation; and if emancipated after a single sale they become their own mistresses. A woman who has concluded a coemption with a stranger by way of trust, can compel him to sell her again to anyone whom she may select; but one who has been sold to her husband, in whose hand she is, cannot compel him to do so, any more than a daughter can compel her father, even though she may be an adopted daughter. A woman, however, can, by serving notice of repudiation, force her husband to release her, just as if she had never been married.
(138) As persons who have been sold in this way are considered to occupy the position of slaves, if they should be manumitted either by the prætor, or by enrollment in the census, or by will, they become their own masters.
(139) In this instance, however, the Lex Ælia Sentia does not apply. Therefore, we do not require the party who manumits, or the one who is manumitted, to be of any particular age; and no attention is paid to whether the party granting the manumission has either a patron or a creditor; and not even the number prescribed by the Lex Fufia Caninia is considered with reference to persons of this description.
(140) But even if the party having possession of the one who is sold should be unwilling, the latter can obtain his freedom by being enrolled on the register of the census; except in the case of one whom his father has mancipated under the condition that he should be again sold to him; for, in this instance, the father is considered to have reserved, to a certain extent, his own power for himself which he received by mancipation. And, indeed, he is not said to have received his freedom by enrollment on the register of the census, against the consent of the party who holds him in mancipation, if his father gave him up as the result of a noxal action; for instance, where his father has been condemned on account of a theft committed by his son and has surrendered him by mancipation to the plaintiff, for then the plaintiff holds him instead of the payment of a sum of money.
(141) In conclusion, we observe that no insulting act should be committed by us against persons whom we hold in mancipation; otherwise, we shall be liable to a suit for injury committed. And, indeed, men should not be retained for any length of time in this condition, but, for the most part, as a matter of form, and only for an instant, unless the parties are mancipated on account of a noxal action.
(142) Let us now pass to another division. For persons who are neither subject to paternal authority, nor are in the hand, nor are held in mancipation by another, may still be under guardianship or curatorship, or may be free from either of these restrictions. Let us first consider those who may be under guardianship and curatorship; for then we shall understand who the other persons are who are subject to neither of these restraints.
(143) And, first, let us examine those who are under guardianship.
(144) Parents are permitted to appoint testamentary guardians for their children who are subject to their authority, who are under the age of puberty, and of the male sex; and for those of the female sex, no matter what their age may be, and even if they are married; for the ancients required women, even if they were of full age, to remain under guardianship on account of the levity of their disposition.
(145) Therefore, if anyone appoints a guardian for his son and daughter by will, and both should arrive at the age of puberty, the son will cease to have a guardian, but the daughter will nevertheless remain subject to guardianship; for it is only under the Lex Julia et Papia that women are released from guardianship by the birth of children. Those whom we speak of do not include Vestal Virgins, whom the ancients desired to be free on account of the honor of the priesthood; hence this was provided by the Law of the Twelve Tables.
(146) We can, however, only appoint testamentary guardians for grandsons and granddaughters, if after our death they do not again pass under the control of their father. Therefore, if my son was under my control at the time of my death, my grandsons by him cannot have a guardian appointed by my will, although they were under my control at the time; for the reason that by my death they were placed under the control of their father.
(147) As in many other instances posthumous children are considered as already born, in this case also it has been decided that testamentary guardians can be appointed for posthumous children, as well as for those previously born; provided, however, that if born during our lifetime, they would have been subject to our authority. We can also appoint them our heirs, but it is not permitted to appoint posthumous strangers heirs.
(148) A testamentary guardian can be appointed for a wife who is in the hand of the testator; just as if she were a daughter; and, likewise, one may be appointed for a daughter-in-law who is in the hand of a son, just as if she were a granddaughter.
(149) A guardian can most properly be appointed in the following manner, namely: "I appoint Lucius Titius guardian of my children." If, however, the appointment was made as follows: "Let Lucius Titius be the guardian of my children and my wife," it is understood to be legally made.
(150) The choice of a guardian may be left to a wife who is in the hand of the testator, that is to say, he can permit her to select any guardian whom she may choose, as follows: "I give to Titia, my wife, the selection of her guardian." In this instance, the wife is permitted to appoint a guardian either for the administration of all the property, or only of one or two things.
(151) Moreover, the choice may be granted either absolutely or with restrictions.
(152) It is ordinarily granted absolutely in the way that we have mentioned above. Where it is granted with restrictions, the following form is usually employed: "I grant to Titia, my wife, only one choice of a guardian"; or: "I only grant her the right to make two selections."
(153) These privileges of selection are very different, for she who has an unlimited right of choice, can choose a guardian twice or three times, or oftener; but she who has a limited right of choice cannot make more than one if only one is granted; and if only two are granted she has no right to make more than two selections.
(154) Guardians who are especially appointed by will are called "dative"; and those ta whom the selection of a guardian is left are called "optative."
(155) By the Law of the Twelve Tables the nearest agnates become the guardians of children for whom no guardian was appointed by will, and they are styled legal guardians.
(156) Agnates are blood relatives through the male sex, for instance, through the father; as a brother having the same father, the son of a brother, or a grandson by him, and also a paternal uncle and his son and grandson. Those who are related through the female sex are not agnates, but cognates, according to natural law. Therefore, agnation does not exist between a maternal uncle and a son or a sister, but cognation does. In like manner, the son of my maternal aunt, or the sister of my mother, is not my agnate, but my cognate; and, on the other hand, I am related to him by the same rule, because children follow the family of their father, and not that of their mother.
(157) Formerly, however, according to the Law of the Twelve Tables, females had agnates as legal guardians, but afterwards the Lex Claudia, which abolished the guardianship of agnates, so far as females were concerned, was enacted, and therefore a male child under the age of puberty has his brother, who is above the age of puberty, or his paternal uncle, as his guardian; but a female child cannot have a guardian of this kind.
(158) The right of agnation is extinguished by the loss of civil rights, but the right of cognation is not affected by it, for the reason that a civil law can abrogate civil rights, but cannot extinguish natural rights.
(159) The loss of civil rights is a change of former condition, and this takes place in three ways; it is either greatest, or less, which some call intermediate, or least.
(160) The greatest loss of civil rights occurs when anyone forfeits at the same time both his citizenship and his freedom, which happens to those who are not inscribed on the register of the census, and are in consequence ordered to be sold; which rule has for some time been abolished by disuse. Under the terms of the Lex Ælia Sentia, dediticii are liable to the same penalty for violation of its provisions
if they have established their domicile in the City of Rome. It also takes place where, under the Claudian Decree of the Senate, free women become the slaves of the owners of other slaves with whom they have cohabited against the consent and protest of their masters.
(161) Less, or intermediate, loss of civil rights occurs when citizenship is forfeited but freedom is retained, which happens when anyone is interdicted from fire and water.
(162) The least loss of civil rights results when both citizenship and freedom are retained, but a man's domestic condition is altered; which happens to those who are adopted, as well as to women subject to coemption, and also in the case of those who are given in mancipation and are afterwards manumitted; so that as often as anyone is mancipated, or remancipated, or manumitted, he suffers a loss of civil rights.
(163) The right of agnation is extinguished not only by the two greater losses of civil rights but also by the least; and therefore if a father should emancipate one of two children, neither can be the guardian of the other by the right of agnation after his death.
(164) When agnates have a right to guardianship, all of them are not entitled to that right at once, but only those in the nearest degree.
(165) By the same law of the Twelve Tables, the guardianship of freedwomen and freedmen under the age of puberty belongs to their patrons and the children of the latter. This kind of guardianship is also styled legal, not because special provision is made for it by this law, but for the reason that this has been accepted by interpretation just as if it had been expressly stated in the words of the statute; for as the law directed that the estates of freedmen and freedwomen who died intestate should belong to their patrons and the children of the latter, the ancient authorities held that the law intended that they should be entitled to their guardianship because it ordered that agnates whom it called to the succession should also be guardians.
CONCERNING FIDUCIARY GUARDIANSHIP.
(166) As in the case of patrons, another kind of guardianship which is also designated legal, has been established. For, if anyone should give in mancipation to another, under the condition that he would remancipate him to himself, either a son or a grandson by that son, who is under the age of puberty, or a daughter or a granddaughter by a son, and their descendants, whether they have arrived at the age of puberty or not; and he should manumit them after they have been remancipated, he will become their legal guardian.
(166a) There are other kinds of guardianship which are styled fiduciary, that is to say, such as we are entitled to for the reason that a free person has been mancipated by us, or by a relative, or by a party to coemption and afterwards has been manumitted.
(167) The guardianship of Latins of both sexes who are under the age of puberty does not invariably belong to those who manumit them, but to those to whom they belonged by quiritarian right before their manumission. Therefore, if a female slave who belonged to you by quiritarian right, but who was mine by bonitarian right, should be manumitted by me alone without your taking part in the ceremony, she would become a Latin, and her property will belong to me; but you will have the right to her guardianship, as provision for this is made by the Lex Junia. Hence, if the said slave should be made a Latin by one who had both the bonitarian and quiritarian rights, her property as well as her guardianship will belong to him.
(168) Agnates, patrons, and those who manumit free persons are permitted to transfer the guardianship of a female ward to another in court; it is not, however, permitted to transfer the guardianship of male wards, for the reason that this is not considered onerous, as it terminates at the age of puberty.
(169) He to whom a guardian is thus transferred is designated a cessionary guardian.
(170) If he dies, or loses his civil rights, the guardianship reverts to the party who transferred it;, and if the latter should be either dead or have forfeited his civil rights, the guardianship will leave the cessionary guardian and pass to the one next in degree to the party who transferred it.
(171) So far as agnates are concerned, however, cessionary guardianship does not at present exist, as guardianship of female wards by agnates was abolished by the Lex Claudia.
(172) Certain authorities hold that fiduciary guardians also have no right to transfer their guardianship, as they themselves have voluntarily assumed the burdens of the same; but, although this has been decided, still in the case of a parent who have given either a daughter, granddaughter, or a great-granddaughter in mancipation to another under the condition that she shall be again mancipated to him, and, this having been done, he manumits her, the same rule should not apply; as he is considered a legal guardian, and the same privilege should be granted to him as to a patron.
(173) Moreover, by a Decree of the Senate, women are permitted to demand another guardian to take the place of one who is absent; and this having been granted, the first guardian ceases to hold his office, nor does it make any difference how far he may be from home.
(174) An exception, however, is made in the case of an absent patron, as a freedwoman is not permitted in this instance to demand another guardian.
(175) Again, in the same class with the patron we have a parent who has obtained legal guardianship from the fact that he has manumitted his daughter, granddaughter, or great-granddaughter, who has previously been remancipated by himself. His sons, however, are only considered to occupy the places of fiduciary guardians, but those of a patron obtain the same guardianship which their father possessed.
 Prior to the enactment of the Lex Claudia, the res mancipi of a woman under the tutelary control of agnates, were not subject to usucaption, unless the transfer had previously been sanctioned by her guardian. — ed.
(176) Sometimes, however, it is permitted to demand a guardian to take the place of an absent patron; as for instance, where an estate is to be entered upon.
(177) The Senate decreed that the same rule should apply to the son of a patron who was himself a ward.
(178) For by the Lex Julia, enacted for the purpose of regulating marriages, a female who is under the legal guardianship of a ward is permitted to demand a guardian from the Prætor of the City for the purpose of constituting her dowry.
(179) For the son of a patron, even if he is under the age of puberty, becomes the guardian of a freedwoman, although he cannot perform any legal act, as he is not permitted to do anything without the authority of his guardian.
(180) Likewise, if any female is subject to the legal guardianship of a person who is insane, or dumb, she is permitted by the Decree of the Senate to demand a guardian for the purpose of constituting her dowry.
(181) In these instances, it is clear that the patron or the patron's son is unquestionably entitled to the guardianship.
(182) Moreover, the Senate decreed that, if the guardian of a male or female ward was suspected of maladministration, and was removed from the guardianship; or if he should be excused for some good reason, and another guardian be appointed in his stead; after this has been done, the former guardian shall lose the guardianship.
(183) All of these provisions are observed both at Rome and in the provinces, but at Rome application for the appointment of a guardian should be made to the Prætor, and in the provinces to the governor.
(184) Formerly, when the ancient mode of procedure was in use, a guardian was appointed for another reason, namely, where a suit was about to be brought between the guardian and the woman, or the ward; since because the guardian could not grant authority in his own case, another guardian was appointed by whom the legal proceedings were instituted; and he was called a prætorian guardian, because he was appointed by the Urban Prætor. Some authorities, however, think that, after the ancient mode of procedure was abolished, this method of appointing a guardian became obsolete, but it is held by others that it is still the practice where an action is to be brought.
(185) If there should be no lawful guardian for a person, one is appointed for him under the Lex Atilia, in the City of Rome by the Urban Prætor and a majority of the tribunes of the people, who is styled an "Atilian guardian"; and in the provinces he is appointed by the governor under the Lex Julia et Titia.
(186) Hence if a guardian is appointed of anyone by will under a condition, or from a certain day, a guardian can be appointed while the condition is pending, or before the time arrives. Likewise, if a guardian should be appointed absolutely, a guardian can be demanded under these laws, so long as no heir appears, and he will cease to hold his office as guardian when the one appointed by will acquires the right to act.
(187) When a guardian is captured by the enemy, a substitute should be demanded under these laws, and he will cease to be guardian if the one who was taken captive should return, for, on his return, he will recover the guardianship by the law of postliminium.
(188) From this it is apparent how many different kinds of guardianships there are, and if we consider into how many classes they may be divided a long discussion will be required, for the ancient authorities entertained many doubts on this subject, and as we have examined it very carefully, both in the interpretation of the Edict and in the books which we have written on Quintus Mucius, it will be sufficient to state that certain jurists, for instance, Quintus Mucius, say that there are five classes, and others, like Servius Sulpicius, say that there are three; and still others, as Labeo, say that there are two; and
 The jus postliminii of the Civil Law, was the privilege enjoyed by prisoners of war of being, upon their return, restored to all the rights which they possessed previous to their captivity. By the effect of this legal fiction they were considered never to have been absent at all. "Postliminium fingit eum qui captus est, in civitate semper fuisse." The rule was also applicable to real, but not to personal property, unless the latter was speedily retaken, and hence became readily susceptible of identification.
Under the Law of Postliminium, freemen were said to "return"; slaves to be "received"; and property to be "recovered". The animus revertendi was absolutely essential for the enjoyment of the rights which it conferred; if a prisoner of war was surrendered against his will, he was not entitled to them. Deserters were also excluded from participation in these advantages.
As long as a father was in captivity, the exercise of paternal control remained in abeyance, dating from the moment of capture, but the right again vested at the time of release. Marriage was voidable at the option of the parties interested; hence its suspension might be indefinitely prolonged. As a captive was temporarily civiliter mortuus, he could perform no legal act; but if he died while in the hands of the enemy his decease was presumed to have occurred in his own country, at the instant when he lost his liberty.
The general principles of the jus postliminii as laid down by the Romans, are recognized by all writers on international law. "Per bellum capti, ubi manus hostium quocunqua modo evaserint, neque illis fide data sint obstricti, atque ad suos redierint, non modo pristinum statum, sed & omnia sua bona ac jura recuperent. Quod autem res attinet, quamdiu bellum durât, si hostibus iterum sint ereptæ sive per nos ipsos, sive per nostros cives aut milites, eas ad antiquos dominos redire par est, non immobiles tantum, sed & mobiles, modo liquido a nobis possint dignosci." (Pufendorf, De Jure Naturæ et Gentium, VIII, VI, 25.)
"It is therefore with reason that movables or booty are excepted from the right of postliminium, unless retaken from the enemy immediately after his capture of them; in which case, the proprietor neither finds a difficulty in recognising his effects, nor is presumed to have relinquished them." (Vattel, The Law of Nations, III, XIV, Page 393.)
"The right of postliminy is founded upon the duty of every State to protect the persons and property of its citizens against the operations of the enemy. When, therefore, a subject who has fallen into the hands of the enemy is rescued by his State, he is restored to his former rights and condition under his State. So, of the property of a subject recaptured from the enemy by his State; it is no more the property of the State than it was before it fell into the hands of the enemy; it must, therefore, be restored to its former owner. But if, by the well-established rules of public law, the title to the captured property has become vested in the enemy captor, the former owner cannot claim its restoration from the recaptor, because his original title has been extinguished." (Baker, First Steps in International Law, XXXV, Pages 364, 365.) — ed.
others again, hold that there are as many kinds of guardianship as there are forms of the same.
(189) The law of all states declares that persons who have not reached puberty shall be under guardianship, because it is consonant with natural reason that one who is not of full age should be controlled by the guardianship of another. Indeed, there is scarcely any state in which parents are not permitted to appoint testamentary guardians for their children; although, as we have stated above, only Roman citizens are considered to have their children subject to paternal authority.
(190) There does not seem to be any good reason, however, why women of full age should be under guardianship, for the common opinion that because of their levity of disposition they are easily deceived, and it is only just that they should be subject to the authority of guardians, seems to be rather apparent than real; for women of full age transact their own affairs, but in certain cases, as a mere form, the guardian interposes his authority, and he is often compelled to give it by the Prætor, though he may be unwilling to do so.
(191) Therefore, a woman has no right of action under the guardianship against her guardian, but where guardians transact the business of their male and female wards, they must render an account of their guardianship in court, after their wards arrive at the age of puberty.
(192) The legal guardianship of patrons and parents are indeed understood to have a certain effect, for the reason that they cannot be forced to give their consent to the making of a will, to the alienation of property subject to mancipation, or to the assumption of obligations; unless there should be some urgent reason for the alienation of such property, or for undertaking the obligations aforesaid. These provisions have been made for their own benefit, in order that where the estates of persons who have died intestate belong to them, they can neither be excluded from them by will, nor have the estate come into their hands diminished in value on account of debts which have been incurred, or through the alienation of the most valuable part of the property.
(193) Women are not held in guardianship among foreigners as they are with us; still, they are generally, as it were, in a state of tutelage; as, for example, the law of the Bythinians directs that if a woman enters into a contract it must be authorized either by her husband or by a son who has reached the age of puberty.
(194) Moreover, a freeborn woman is released from guardianship if she is the mother of three children, and a freedwoman if she is the mother of four, and is under the legal guardianship of her patron. Those who have other kinds of guardians, as, for instance, Atilian or Fiduciary, are released from guardianship by having three children.
 The tutor Atilianus was appointed by the Prætor and the tribunes, under the Lex Atilia, when no guardian existed. This became necessary when there was a will, and the heir had not accepted the estate; or the designated guardian was incapacitated; or the testament from which he derived his authority was defective. — ed.
(195) A freedwoman may, however, have a guardian appointed in several other ways; for example, where she has been manumitted by a woman, for then she must demand a guardian under the Lex Atilia, or in the provinces under the Lex Julia et Titia, for she cannot be under the guardianship of a patroness.
(195a) Again, if she has been manumitted by a male and should enter into coemption with his consent, and then should be remancipated and manumitted, she ceases to have her patron as her guardian, and begins to have as a guardian the party by whom she was manumitted, who is designated a fiduciary guardian.
(195b) Likewise, if her patron, or his son, gives himself in adoption, a freedwoman should demand a guardian for herself either under the Lex Atilia, or the Lex Julia et Titia.
(195c) Likewise, under the same laws, a freedwoman should demand a guardian, where her patron dies and leaves no child of the male sex in the family.
(196) Again, when males reach the age of puberty they are released from guardianship. Sabinus and Cassius and our other preceptors hold that a person has arrived at the age of puberty who manifests this by the condition of his body, that is to say, if he is capable of procreation; but in the case of those who cannot show this condition, as for instance, eunuchs, their age should be considered to be that at which persons ordinarily reach puberty. Authorities belonging to another school, however, think that the age of puberty should be estimated by years; that is to say, they hold that a person has arrived at the age of puberty who has completed his thirteenth year. . . .
(197) After having been released from guardianship, the affairs of a minor are administered by a curator until he reaches the age when he is qualified to transact his own business; and this rule is observed among foreign nations, as we have stated above.
(198) In cases of this kind, in the provinces, curators are usually appointed by the governor.
(199) In order to prevent the property of wards and persons who are under the charge of curators from being wasted or diminished in value by their guardians and curators, it is the duty of the Prætor to compel guardians and curators to furnish security for this purpose.
(200) This, however, is not always the case, for guardians appointed by will are not compelled to furnish security, because their fidelity and diligence have been approved by the testator himself; and curators who have not obtained their office by law, but who are appointed either by a consul, a Prætor, or the governor of a province, are, for the most part, not required to furnish security, for the reason that they have been chosen on account of their being considered sufficiently trustworthy.
Original manuscript illegible.
(1) In the former Commentary we explained the ius of persons; now let us consider the ius of things, which either form part of our property or do not form part of it.
Superiore commentario de iure personarum exposuimus; modo uideamus de rebus: quae uel in nostro patrimonio sunt uel extra nostrum patrimonium habentur.
(2) The principal division of things is under two heads, namely, those that are subject to divine right, and those that are subject to human right.
Summa itaque rerum diuisio in duos articulos diducitur: nam aliae sunt diuini iuris, aliae humani.
(3) Things which are subject to divine right are such as are sacred and religious.
Diuini iuris sunt ueluti res sacrae et religiosae.
(4) Sacred things are those which are consecrated to the gods above; religious things are those which are dedicated to the spirits of the departed.
Sacrae sunt, quae diis superis consecratae sunt; religiosae, quae diis Manibus relictae sunt.
(5) That only is considered sacred which has been consecrated by the authority of the Roman people; that is to say, by a law or a Decree of the Senate enacted for that purpose.
Sed sacrum quidem hoc solum existimatur, quod ex auctoritate populi Romani consecratum est, ueluti lege de ea re lata aut senatus consulto facto.
(6) We, however, render things religious by our own will, when we bury a body in our own ground, provided we have a right to conduct the funeral of the deceased.
Religiosum uero nostra uoluntate facimus mortuum inferentes in locum nostrum, si modo eius mortui funus ad nos pertineat.
(7) Moreover, it has been held by the greater number of authorities that, in the provinces, ground does not become religious, as the ownership of the same belongs to the Roman people or to the Emperor, and we are only considered to have the possession or the usufruct of the same, and though it may not actually be religious, it is regarded as such. Likewise, in the provinces, while property which has not been consecrated by the authority of the Roman people is, properly speaking, not sacred, it is still considered as such.
Sed in prouinciali solo placet plerisque solum religiosum non fieri, quia in eo solo dominium populi Romani est uel Caesaris, nos autem possessionem tantum et usumfructum habere uidemur; utique tamen, etiamsi non sit religiosum, pro religioso habetur: item quod in prouinciis non ex auctoritate populi Romani consecratum est, proprie sacrum non est, tamen pro sacro habetur.
(8) Holy places are those which are, to a certain extent, subject to divine right, as for instance, the walls and gates of a city.
Sanctae quoque res, uelut muri et portae, quodam modo diuini iuris sunt.
(9) Again, things which are subject to divine right are not included among the possessions of any individual; that is to say, things which are subject to human right are, for the most part, included in the property of someone, they may, however, belong to no one; for an estate before any heir appears is without an owner, as a rule.
Quod autem diuini iuris est, id nullius in bonis est: id uero, quod humani iuris est, plerumque alicuius in bonis est; potest autem et nullius in bonis esse: nam res hereditariae, antequam aliquis heres existat, nullius in bonis sunt [. . . . . . . . ]ue domino.
(10) Things subject to human right are either public or private.
Hae autem res, quae humani iuris sunt, aut publicae sunt aut priuatae.
(11) Things which are public are considered to be the property of no individual, for they are held to belong to the people at large; things which are private are the property of individuals.
Quae publicae sunt, nullius uidentur in bonis esse; ipsius enim uniuersitatis esse creduntur. priuatae sunt, quae singulorum hominum sunt.
(12) Moreover, some things are corporeal and others are incorporeal.
Quaedam praeterea res corporales sunt, quaedam incorporales.
(13) Corporeal things are those that can be touched, as, for instance, land, a slave, clothing, gold, silver, and innumerable other objects.
Corporales hae sunt, quae tangi possunt, uelut fundus, homo, uestis, aurum, argentum et denique aliae res innumerabiles.
(14) Incorporeal things are such as are not tangible, and are those consisting merely of rights, as, for instance, inheritances, usufructs, and obligations, no matter in what way the latter may have been contracted. For while corporeal things are included in an estate, and the crops gathered from land are corporeal, and what is due to us under the terms of some obligation is, for the most part, of a corporeal character, for example, land, slaves, money; still, the right of succession, the right of use and enjoyment, and the right of obligation, are incorporeal. To the same class belong rights attaching to urban and rustic estates, which are also called servitudes. Among these are the right to raise a building higher and obstruct the lights of a neighbor; the right to prevent a building from being raised, so that the lights of a neighbor may not be obstructed; the right to the use of streams, and to have rainwater fall upon the premises of another
Incorporales sunt, quae tangi non possunt, qualia sunt ea, quae in iure consistunt, sicut hereditas, ususfructus, obligationes quoquo modo contractae. Nec ad rem pertinet, quod in hereditate res corporales continentur, et fructus, qui ex fundo percipiuntur, corporales sunt, et id, quod ex aliqua obligatione nobis debetur, plerumque corporale est, ueluti fundus, homo, pecunia: nam ipsum ius successionis et ipsum ius utendi fruendi et ipsum ius obligationis incorporale est. eodem numero sunt iura praediorum urbanorum et rusticorum. . . . . non extollendi, ne luminibus uicini officiatur: item fluminum et stillicidiorum idem ius ut . . . .
(14a) Things are either susceptible, or not susceptible of mancipation by sale. Those susceptible of sale by mancipation are lands and houses in Italy, slaves, domestic animals and rustic servitudes; but servitudes attached to urban estates are not thus subject to sale.
(15) Likewise, estates subject to taxation and tribute are not subject to sale. According to what we have stated, cattle, horses, mules, and asses are held by some authorities to be susceptible of sale as soon as they are born; but Nerva, Proculus, and other jurists of a different school think that such animals are not subject to sale unless they have been tamed; and if this cannot be done on account of their extreme wildness, then they are considered to be salable when they reach the age at which others of the same kind are usually tamed.
(16) In like manner, wild beasts, as for instance, bears, lions, and those animals which can almost be classed as wild beasts, for example, elephants and camels, are not subject to sale; and therefore it makes no difference whether these animals have been broken to harness or to carry burdens, for they were not even known at the time when some things were decided to be saleable and others were not.
(17) Again, almost all things which are incorporeal are not subject to sale, with the exception of servitudes attached to rustic estates; for it is established that these can be sold, although they are included in the number of incorporeal things.
(18) A great difference exists between things which are saleable by mancipation and things which are not.
(19) Things which are not saleable by mancipation become the property of others absolutely by mere delivery; if they are corporeal and on this account are capable of being delivered.
 Original manuscript illegible.
 The early Roman law divided property of every description into two classes, res mancipi and res nec mancipi. Ownership of the first could only be transferred by compliance with certain prescribed legal formalities, either involving a fictitious sale in the presence of witnesses and a balance-holder, or a public surrender of the property in court. The legal capacity to acquire res mancipi was vested only in those enjoying the privileges of Roman citizenship, who were said to obtain their title ex jure quiritium, by quiritarian right. Where neither of these formal methods of transfer was employed, the ownership did not pass until sufficient time had elapsed to establish title by prescription, and in the meantime, the property was considered to be in bonis, or merely in possession of the holder by bonitarian right. Res nec mancipi, which included everything not coming under the first head, and not belonging to the State, as set forth in the text, were transferable by mere delivery. The distinction between res mancipi and res nec mancipi which, for many years previously, had practically been ignored in business transactions, was abolished by Justinian. — ed.
(20) Therefore, if I deliver to you a garment, or some gold or silver, either by way of sale or donation, or for any other reason, the property immediately becomes yours, provided I am the owner of the same.
(21) To the same class belong lands in the provinces, some of which we designate as taxable, and others as tributary. Those are taxable which are situated in the provinces and are understood to be the property of the Roman people; those are tributary which are situated in the provinces and are considered the property of the Emperor.
(22) On the other hand, things susceptible of sale are such as are transferred to another by mancipation, from whence they are styled mancipable, and this has the same validity as a transfer in court.
(23) We explained mancipation and the manner in which it takes place in the preceding Commentary.
(24) A transfer of property in court takes place as follows: He to whom the property is to be conveyed appears before a magistrate of the Roman people, for example, the Prætor, and holding the property in his hands, says: "I declare that this slave belongs to me by quiritarian right." Then, after he makes this claim, the Prætor interrogates the other party to the transfer as to whether he makes a counter-claim, and if he does not do so, or remains silent, he adjudges the property to the party who claimed it. This is called an act of legal procedure, and it can even take place in a province before the governor of the same.
(25) For the most part, however, indeed almost always, we make use of sales by mancipation; for while we ourselves can transact our business in the presence of our friends, there is no reason or necessity for us to do so with greater difficulty before the Prætor, or the Governor of the province.
(26) If the property susceptible of alienation is neither sold nor transferred in court . . . .
(26a) In the provinces, however, no private property in land exists, nor is there any free citizenship.
(27) Moreover, in this place we should note that where the property is merely attached to the soil of Italy, it is not attached to the soil of a province; for the term "attached" only applies where the property is mancipable, and land in a province is not saleable by mancipation. . . .
(28) It is clear that incorporeal property is not susceptible of delivery.
(29) The rights of urban estates can only be transferred in court; those attached to rustic estates can also be sold.
(30) Usufruct is only susceptible of transfer in court, for the the owner of property can transfer the usufruct of the same to another so that the latter may have the usufruct, and he himself retain the bare ownership.
The usufructuary, by transferring his right to the owner of the property in court, causes himself to be divested of it, and the usufruct
 Original manuscript illegible.
to be merged in the ownership. Where, however, the right is transferred by him to another in court, it is, nevertheless, retained by the usufructuary, for such a transfer is held to be void.
(31) These proceedings only relate to lands in Italy, for only such lands can be transferred by mancipation, or surrendered in court. On the other hand, with reference to lands situated in the provinces, if anyone desires to create either the usufruct of the same, or the rights of way on foot, on horseback, and for vehicles; or of conducting water, or of raising houses to a greater height, or of preventing this from being done to avoid obstructing the lights of a neighbor, and other servitudes of this description, he can do so by means of agreements and stipulations, for the reason that the lands themselves are not susceptible of either mancipation or surrender in court.
(32) However, as an usufruct can be created in slaves and other animals, we must understand that the usufruct in them can also be created, even in the provinces, by a surrender of this right in court.
(33) But when we said that a usufruct could only be created by a surrender in court, this was not a rash statement, although it may be established by mancipation in such a way that in disposing of the property the usufruct of the same be reserved; for the usufruct itself is not sold but is reserved in the disposal of the property; and the result is that the usufruct is vested in one person and the ownership of the property in another.
(34) Estates also are only susceptible of alienation by a surrender in court.
(35) For if the party to whom an estate belongs as heir-at-law surrenders the same in court before it is entered upon, that is before any heir appears; the person to whom the surrender is made becomes the heir, just as if he himself had been called by law to the inheritance; but if he should surrender it after having incurred the obligation imposed by acceptance, he will, nevertheless, remain the heir, and for this reason will be responsible to the creditors. The debts will also be extinguished, and in this way the debtors of the estate will be benefited; and the corporeal property of the said estate will pass to him to whom the estate was surrendered, just as if separate portions of the same had been surrendered to him.
(36) A testamentary heir, by the surrender of an estate in court to another before it has been accepted, performs an act which is void; but if he should surrender it after he has entered upon it, what we recently stated with reference to one to whom the estate legally belongs by law as the heir of a person dying intestate will apply, if he surrenders the estate in court after assuming the obligations entailed by the acceptance of the same.
(37) The same opinion is held by the authorities of a different school with reference to necessary heirs, namely, that it appears to make no difference whether a party becomes an heir by entering on an estate, or whether he becomes heir-at-law without his own consent; which will be explained in its proper place. Our preceptors, however, hold that the act of a necessary heir is void when he surrenders the estate in court.
(38) Obligations, no matter how they may have been contracted, cannot be transferred in either of these ways; for if anything is due from someone to me, and I wish to transfer the claim to you, I cannot do this in any of the ways by which corporeal property is transferred to a third party; but it will be necessary for you to stipulate with the debtor under my direction, with the result that he will be released by me and becomes liable to you, which is called the novation of an obligation.
(39) Without this novation, you cannot sue in your own name, but you must bring your action in my name, as my agent or attorney.
(40) In the next place, we should note that only one ownership exists for aliens, for any one of them is considered either to be the owner, or not the owner, of property. The Roman people, in former times, made use of this rule, for every one was either the owner under quiritarian right, or he was understood to have no ownership whatever; but subsequently, they established a division of ownership, so that one person could own property by quiritarian right and another could hold it by bonitarian right.
(41) But if I neither sell an article to you nor surrender it in court, but only deliver it to you, the said article becomes yours by bonitarian right, but still remains mine by quiritarian right, until you, through possession, acquire it by usucaption; for as soon as usucaption is completed, the article becomes absolutely yours, that is, the bonitarian and quiritarian rights vest in you, just as if it had been sold or surrendered in court.
(42) Usucaption of movable property, however, is completed within a year, that of lands and houses within two years; and this was provided by the Law of the Twelve Tables.
 Among the Romans, the origin of legal representation in court is directly traceable to the close relations existing between patron and client. The former, invariably of patrician rank, was, at all times, obliged to protect the interests of his illiterate and inexperienced dependents; and especially was this the ease when they became involved in litigation. This duty was not only a point of honor with the patron, but its observance was enforced by the infliction of severe penalties, and its violation incurred public reproach and infamy. A patron was never permitted to accept any compensation for his services, no matter how important or valuable they were. His influence, however, in time declined, and as the study of the law developed, and men chose it as a profession, all classes of the people sought the advice and assistance of jurisconsults of acknowledged learning and ability, whose attainments had kept pace with the progress and technical requirements of legal procedure. Still, no fees were actually charged, but custom demanded that one styled an honorarium, should always be offered, the amount of this was subsequently fixed by law, and the provision of the Lex Cincia, prohibiting any remuneration for legal services — "Ne quis ob causam orandam mercede aut donis emeretur" — was abrogated. After the patron came the procurator, who was only an agent, or the attorney-in-fact of his constituent, and generally possessed of little or no legal knowledge. The cognitor, who was the original attorney-at-law, and the advocate, were those who usually tried and argued cases before the Roman tribunals. The procurator absolutely took the place of his principal, and became personally responsible if an adverse decision was rendered; but the cognitor merely appeared for his client, just as a modern lawyer does. — ed.
(43) Again, we are entitled to usucaption of property of this kind where it has been delivered to us by a party who is not its owner; and this rule applies whether the property is subject to sale or not, provided we received it in good faith, and believed that he who delivered it was the owner.
(44) This regulation seems to have been adopted to prevent the ownership of property from being uncertain for a long period of time, as the term of one or two years should be sufficient to enable the owner to inquire after his property, which time is granted to the possessor to acquire it by usucaption.
(45) Sometimes, however, a party who possesses property in the utmost good faith still cannot acquire the same by usucaption; for instance, where he has possession of an article which has been stolen or obtained by violence, for the Law of the Twelve Tables forbids stolen property to be acquired by usucaption, and the Lex Julia et Plautia makes the same provision with reference to property obtained by force.
(46) Likewise, lands situated in the provinces are not susceptible of usucaption.
(47) Again, in former times, property susceptible of mancipation which belonged to a woman under the guardianship of agnates could not be acquired by usucaption, unless it had been delivered by herself with the authority of her guardian; and this rule was established by the Law of the Twelve Tables.
(48) It is also clear that men who are free, as well as sacred and religious property, cannot be acquired by usucaption.
(49) The common saying that the usucaption of property which has been stolen or obtained by force is prohibited by law, does not mean that the thief himself, or the party who obtains possession by violence, cannot acquire it by usucaption (for he is not entitled to usucaption for another reason, namely, because he is a possessor in bad faith), but that no one else, even though he purchased the property in good faith, has the right to acquire it by usucaption.
(50) Wherefore, with reference to movable property, a possessor in good faith does not readily acquire it by usucaption, because a person who sells the property of another and delivers it, commits a theft; and the same thing happens if the property is delivered for any other reason. Sometimes, however, this is not the case, for if an heir believes that property which has been loaned, hired, or deposited with the deceased, belonged to the estate, and he should sell or give it away, he is not guilty of theft; and also if one to whom the usufruct of a female slave belongs, believing that her child was his, should sell or give it away, he does not commit a theft, for theft cannot be committed without the intention of stealing. This may also happen in other ways, as where anyone transfers property belonging to another to a third party, without the defect of theft, and enables it to be acquired by usucaption by the possessor of the same.
(51) Anyone can obtain possession of land belonging to another without the exertion of violence, if it either becomes vacant through the neglect of the owner, or because he died without leaving any heir, or was absent for a long time; and if he should transfer the said land to another who received it in good faith, the possessor can acquire it by usucaption. And although the party who obtained the land when vacant may be aware that it belongs to another, still, this does not in any way prejudice the right of usucaption of the possessor in good faith, as the opinion of those who held that land could be the subject of theft is no longer accepted.
(52) Again, on the other hand, it happens that anyone who knows that the property which he possesses belongs to another can acquire it by usucaption; as, for instance where someone has possession of property belonging to an estate of which the heir who is not yet born has not obtained possession; for he is permitted to acquire it in this manner, provided the said property is of a nature which admits of usucaption, and this kind of possession and usucaption is styled that of a person representing an heir.
(53) Usucaption of this kind is so readily granted that real property may be acquired by usucaption within the space of a single year.
(54) The reason why, in this instance, land can be acquired by usucaption in a single year, is because that, in former times, through the possession of property belonging to an estate the estate itself was considered to be acquired by usucaption, that is to say, in a year; for, though the Law of the Twelve Tables establishes the term of two years for the usucaption of land and one year for that of other property, an estate "was considered to be included in the latter, as it is neither part of the soil nor corporeal; and although it was afterwards held that estates themselves were not capable of usucaption, still the right to usucaption with reference to all property belonging to an estate, even land, remained in force.
(55) The reason why such thoroughly dishonorable possession and usucaption was allowed was because the ancient authorities desired that estates should be entered upon more quickly, and that there should be persons to perform the sacred ceremonies to which, in those times, the greatest importance was attached; and also that the creditors might have someone from whom they might collect their claims.
(56) This species of possession and usucaption is called lucrative, for the party knows that he is profiting by the property of another.
(57) At the present time, however, it is not lucrative, for a Decree of the Senate, enacted at the instance of the Divine Hadrian, provided that usucaptions of this kind could be revoked; and therefore an heir can recover the property by bringing an action for the estate against him who acquired it by usucaption, just as if the usucaption had never taken place.
(58) Where there is a necessary heir, usucaption of this kind cannot take place under the law.
(59) A person can knowingly acquire the property of another by usucaption under other circumstances; for if anyone makes a fiduciary sale of the property of another or surrenders it in court to a third party, and the owner himself should obtain possession of the same, he can acquire it by usucaption, even in the case of land, after the expiration of a year. This species of usucaption is called a recovery by use, because property which we owned at a former time we recover in this way by usucaption.
(60) Fiduciary ownership, however, is contracted either where the creditor holds the property by way of pledge, or through a friend with whom our property is placed for safe-keeping; and, when the trust is contracted with a friend, recovery by use can, under all circumstances, take place; but where this is done with a creditor, the money must, by all means be paid, and when it has not yet been paid, the property can only be recovered in this way provided the debtor has not hired it from the creditor, or have obtained possession of it during pleasure; as in this instance lucrative usucaption will take place.
(61) Moreover, if the people should sell property pledged to satisfy a claim, and the owner should become possessed of it, recovery by use is permitted; but in this case land will be recovered after the lapse of two years. This is what is commonly called recovery of possession after public sale, for he who buys it from the people is called a purchaser of mortgaged land.
(62) It sometimes happens that an owner has not the power to alienate his property, and that one who is not the owner can do so.
(63) For, by the Lex Julia, a husband was forbidden to alienate dotal land against the consent of his wife, although the land may have become his own either by sale to him as dowry, or by surrender in court, or by usucaption. It is doubtful whether this rule is applicable only to lands in Italy, or also to those in the provinces.
(64) On the other hand, an agnate who is the curator of an insane person can, by the Law of the Twelve Tables, alienate the property of the latter; and an agent can also, as well as a creditor, alienate that of his principal, if authorized to do so under an agreement, although the property does not belong to him. This may perhaps be considered to be done for the reason that the pledge is understood to be alienated with the consent of the debtor, who previously agreed that the creditor might be permitted to sell the pledge, if the money was not paid.
(65) Therefore, from what we have stated, it appears that certain property can be alienated by Natural Law; as, for instance, that which is transferred by mere delivery, and that other property can be alienated by the Civil Law, as through sale, surrender in court, and usucaption, for these rights are peculiar to Roman citizens.
(66) Property which becomes ours by delivery can be acquired by us not only by natural law but also by occupancy, and hence we become the owners of the same because it previously belonged to no one else; and in this class are included all animals which are taken on land, or in the water, or in the air.
 In the text, Sections 62, 63 and 64, follow immediately after Section 79. As there does not appear to be any reason for this and it evidently is an error, I have placed them in their regular order. — ed.
(67) Therefore, if we should take captive any wild animal, bird, or fish, it is understood to be ours only as long as it is in our custody; for when it escapes from our control and recovers its natural liberty, it again becomes the property of the first occupant, because it ceases to be ours. It is considered to recover its natural liberty when it escapes from our vision, or, although it may be in our sight, its pursuit is difficult.
(68) In the case of those animals, however, which are accustomed to go away and return, as for instance pigeons, and bees, and also deer which are accustomed to go into the forests and return, we have adopted the rule which has come down to us from former times, namely, that if these animals should not have the intention to return, they also cease to be ours and become the property of the first occupant; and they are considered to have ceased to have the intention to return when they abandon their habit of returning.
(69) Property taken from the enemy also becomes ours by Natural Law.
(70) Land acquired by us through alluvion also becomes ours under the same law. This is held to take place when a river, by degrees, makes additions of soil to our land in such a way that we cannot estimate the amount added at any one moment of time; and this is what is commonly stated to be an addition made by alluvion, which is added so gradually as to escape our sight.
(71) Therefore, if the river should carry away a part of your land and bring it to mine, that part will still continue to be yours.
(72) But, if an island rises in the middle of a river, it is the common property of those who possess land on both sides of the stream; but if it is not in the middle of the river, it will belong to those who have land on the nearest bank of the stream.
(73) Moreover, any building erected on our land by another, even though the latter may have erected it in his own name, is ours by Natural Law, for the reason that the surface is part of the soil.
(74) This rule applies with still greater force to trees planted on our soil by another, provided, however, they have taken root in the earth.
(75) The same rule also applies to grain which has been sowed by another upon our land.
(76) But if we bring an action against him to recover the land or the building, and we refuse to pay him the expenses he has incurred in constructing the building or in sowing the crop, we can be barred by
 These rules regulating the acquisition and loss of the qualified ownership in animals feræ natural, as well as those relating to alluvial deposits, were adopted bodily from Roman jurisprudence by the early writers on the Common Law, and are in. force to-day. "Omnia animalia que in terra & in mari & in cœlo & in aêre nascuntur vbicunq (ubicunque); capiantur, et cu capta fuerint incipiunt esse mea; quia mea custodia cœrcetur. & eadem ratione si euaserint custodiam meam & in naturalem libertatem se receperint, desinunt esse mea & rursus fiunt occupantis. Est autem alluuio latens incremetum. & p alluuione adjici dicitur quod ita paulatim adjicitur, quod intelligere non possis quo momento teporis adjicitur." Bracton, De Leg. et Consuet. Ang. II, I, 9. — ed.
an exception on the ground of fraud, that is to say, if he was a possessor in good faith.
(77) It is settled by the same rule that whatever anyone has written on my paper or parchment, even in letters of gold, is mine, because the letters are merely accessory to the paper or parchment; but if I should bring an action to recover the books or parchments, and do not reimburse the party for the expense incurred in writing, I can be barred by an exception on the ground of fraud.
(78) If, however, anyone paints anything on a tablet belonging to me, as for instance, a portrait, the contrary rule is adopted, for it is said that the tablet is accessory to the painting; but a good reason for this difference hardly exists. According to this rule it is certain that if you bring an action for the portrait as yours, while I am in possession of the same, and you do not pay me the value of the tablet, you can be barred by an exception on the ground of fraud. But, if, you are in possession, the result will be that I should be granted an equitable action against you, in which instance unless I pay the expenses of the painting, you can bar me by an exception on the ground of fraud, just as if you were a possessor in good faith. It is clear that if either you, or anyone else should steal the tablet, I will be entitled to an action of theft.
(79) Where the nature of the article is changed recourse to natural law is also required. Hence, if you make wine, oil, or grain, out of my grapes, olives, or heads of wheat, the question arises whether the said wine, oil, or grain is mine or yours. Likewise, if you manufacture a vase out of my gold or silver, or build a ship, a chest, or a bench with my lumber, or you make a garment out of my wool, or mead out of my wine and honey; or a plaster or eye-wash out of drugs belonging to me, the question arises whether what you have made out of my property is yours or mine. Certain authorities hold that the material or substance should be taken into consideration, that is to say, that the article manufactured should be deemed to be the property of him to whom the material belongs, and this opinion was adopted by Sabinus and Cassius. Others, however, hold that the article belongs to him who manufactured it, and this doctrine was approved by authorities of the opposite school, who also agreed that the owner of the material and substance was entitled to an action of theft against the party who had appropriated the property; and also that a personal action would not lie against him because property which has been destroyed cannot be recovered; but, notwithstanding this, personal actions can be brought against thieves and certain other possessors.
V. Whether or not wards can alienate property.
(80) We must next call attention to the fact that neither a woman nor a ward can alienate property by mancipation without the authority of their guardians, but a woman can alienate property not subject to mancipation without such authority, which a ward cannot do.
(81) Hence, if a woman lends money to anyone without the authority of her guardian, for the reason that she transfers it to him, and as money is not subject to sale, the borrower contracts an obligation.
(82) If, however, a ward should do this, as he does not transfer the money to the borrower, the latter does not contract an obligation; and therefore the ward can recover his money, provided it is in existence; that is to say he can claim it as his under quiritarian right, but a woman can only recover the money by an action for debt. Hence the question arises whether the ward who lent the money can, in any action whatever recover it from the person who borrowed it if it has been expended, as recovery must be had for a party in possession.
(83) On the other hand, all property, whether subject to sale or not, can be transferred to women and to wards without the authority of their guardians; and this is granted them because their condition is improved by the transaction.
(84) Hence if a debtor pays any money to a ward, he transfers the ownership of the same to him, but he himself is not released from liability, for the reason that a ward cannot release a debtor from an obligation without the authority of his guardian, as he is not permitted to alienate any property without his guardian's consent; still, if he receives any benefit from the money, and continues to demand payment of the debt, he can be barred by an exception on the ground of fraud.
(85) A woman, however, may be legally paid without the authority of her guardian; and he who makes payment is released from liability, because, as we have previously stated, women can, even without the authority of their guardians, alienate property not mancipable. Although this rule only applies where she actually received the money, still if she did not receive it, but merely says that she has, and wishes to discharge her debtor by giving him a formal release without the authority of her guardian, she cannot do so.
(86) Again, we acquire property not only by ourselves but through those whom we have under our control, in our hand, or in mancipium. We can also acquire it through slaves in whom we have the usufruct, as well as through freemen, and slaves belonging to others whom we have possessed in good faith. Let us now carefully examine these different cases.
(87) Anything which our children, who are under our control, as well as anything which our slaves acquire by sale, delivery, or stipulation, or in any other manner whatsoever, is acquired for us; for he who is subject to our authority can have nothing of his own. Hence if such a person should be appointed an heir he cannot enter on the estate without our order, and if he should do so under our direction the estate will be acquired for us, just as if we ourselves had been appointed heirs; and in accordance with this rule a legacy is acquired by such parties for us in the same manner.
(88) We should, however, note that where a slave belongs to one person by bonitarian right, to another by quiritarian right, in every instance whatever is acquired by him belongs to the party in whom the bonitarian right is vested.
(89) Not only is the ownership of property acquired for us by those whom we have under our control, but possession is also; for if they obtain possession of property we are considered to have possession of the same, hence property can even be acquired through them by usucaption.
(90) Ownership is indeed acquired for us, in every instance, through those persons whom we have in our hand or in mancipium, just as it is by those who are under our control; but whether possession is also acquired is a question, for the reason that we do not have possession of the said persons.
(91) Moreover, it has been decided with reference to slaves in whom we only have an usufruct that anything which they acquire by the employment of our own property, or by their labor, is acquired for our benefit; but what they acquire by any other means belongs to the owner of the property. Therefore, if a slave of this kind is appointed an heir, or a legacy should be left to him, it would not be acquired for my benefit, but for that of the owner of the property.
(92) The same rule applies to anyone who is possessed by us in good faith, whether he is free or the slave of another; for what has been decided with reference to an usufructuary also holds good with reference to a bona fide possessor; and hence any property which is acquired in any other way than the two above mentioned will belong to the party himself, if he is free, or to the owner, if he is a slave.
(93) But after a bona fide possessor has obtained a slave by usucaption, for the reason that he becomes his owner in this way, any-
 Usucaption was originally only applicable to corporeal property, but was afterwards extended by custom so as to include incorporeal hereditaments. It differed from prescription in that good faith was absolutely essential to its operation; and was invented as a penalty to be inflicted upon the actual owner for permitting his right to remain unexercised or unclaimed through gross and inexcusable negligence. Anyone who lost his property in this way was considered to have transferred it: "Videtur alienare qui patitur usucapi."
Usucaption, as such, was recognized by the Common Law, and the doctrine of the Twelve Tables, that it only applied to corporeal objects, was accepted in all its rigidity. "Incorporealia verò possideri non poterunt, nec usucapi, nec sine corpore tradi, quia per se traditionem non patirentur. Quasi possidere tamen non poterunt per patientiam & per usum." (Fleta, III, XV, 1.)
According to Bracton, no certain time for the title to vest was established by law, but this was left entirely to the discretion of the Court.
"Rerum dominia transferuntur per usucaptionem s. p. longam, continuam et pacificam possessionem, ex diuturno tempore et sine traditione; sed quam longa esse debeat non definitur a jure, sed ex lustitiariorum discretione." (Bracton De Leg. et Consuet, Ang. II, 22.)
Prescription, at Common Law, was based on the enjoyment of a right from time immemorial, and did not apply to land. It is now regulated by statute, and in England depends upon uninterrupted use for twenty years, where an easement is concerned. The ownership of immovable property is acquired in France by continuous possession for ten years, if the true owner resides within the jurisdiction of the Court of Appeal; and for twenty, if he does not. (Cod. Civ. Art. 2265); in Spain, for the same periods, when the parties are present, or absent, (Cod. Civ. Art. 1957); in Portugal, for five years where possession, and for ten years where the title of acquisition, is registered; in both cases from the date of registry. (Cod. Civ. Art. 526); in Italy, for ten years where all legal requirements have been corn-
thing which the slave may acquire will be for his benefit. An usufructuary, however, cannot acquire a slave by usucaption; first, because he does not have possession, but only the right of use and enjoyment; and second, because he knows that the slave belongs to another.
(94) It is a matter of doubt whether we can hold possession of property and acquire it by usucaption through a slave in whom we have the usufruct, because we are not in possession of the slave. There is no question, however, that we can both hold possession of property and acquire it by usucaption, through a slave of whom we have possession in good faith. But in both these cases we have reference to the distinction which we explained above; that is to say, where the slave acquires anything by means of our property, or by his own labor, it is acquired for our benefit.
(95) From this it is apparent that under no circumstances can property be acquired for our benefit through freemen who are not subject to our authority, and of whom we do not have possession in good faith, nor by slaves belonging to others in whom we neither have the usufruct, nor of whom we have legal possession. This is what is meant by the common saying that property cannot be acquired for us through a stranger; and the only question relating to possession is whether it can be acquired for our benefit through a person who is free.
(96) In conclusion, it should be remembered that nothing can be surrendered in court by persons who are under the control, or in the hand or mancipation of another, as nothing can belong to persons of this description; and the result is that they cannot claim anything as their own in court.
(97) Up to this point it is sufficient to have stated how separate property can be acquired by us; for we shall hereafter, and in a more suitable place discuss the law of legacies, by which also we acquire individual property. Now let us see in what ways property can be acquired by us in the aggregate.
(98) If we become the heirs of any person, or demand prætorian possession of an estate, or purchase the inheritance of anyone, or adopt anyone, or receive a wife in our hand; the entire property of any of said persons passes to us.
(99) And, first, let us discuss inheritances, the condition of which is twofold; for an inheritance either comes to us by will, or on account of intestacy.
(100) And first we shall examine what comes to us by will.
plied with. (Cod. Civ. Art. 2137); in Japan, for from ten to twenty years, where the party in interest has had undisturbed possession with the intention of owning the property. (Civ. Cod. of Japan, Arts. 162, 163.) By the Civil Code of Louisiana ten or twenty years are required to obtain a good title to immovable property by prescription, dependent upon whether the owner resides in or out of the State; and three years when title to chattels is involved. In former times, the right of ownership to slaves was lost by uninterrupted possession for half the time necessary for the acquisition of real-estate. Good faith was indispensable in the abovementioned cases, and was always presumed. (Civil Code of Louisiana, Arts. 3437, 3439, 3440, 3442, 3447.) — ed.
(101) Originally there were two kinds of wills; for parties either made a will at the Comitia Calata, which were assembled twice a year for that purpose; or in the face of the enemy, that is to say when the testator took up arms for the purpose of making war; for the term has reference to an army ready and armed for service. Hence, persons made one kind of a will in time of peace and tranquillity, and another when about to go into battle.
(102) Afterwards, a third kind of will was introduced, which was executed by bronze and balance. Where a man who had not made a will at the Comitia Calata or in the face of the enemy was apprehensive of sudden death, he usually transferred his estate by sale to a friend, and requested him to distribute it to whomever he desired to have it after his death. This kind of testamentary disposition is styled a will by bronze and balance, because it is effected by the ceremony of mancipation.
(103) The two kinds of wills above mentioned have, however, fallen into disuse; and only the one effected by bronze and balance has been retained, but it is now changed from what it was in ancient times. For formerly the purchaser of the estate, that is to say the party who received it by a sale from the testator, occupied the place of the heir, and for this reason the testator directed him with reference to what he desired to be given to anyone after his death. Now, however, another person is appointed heir under the will who is charged with the distribution of legacies, and differs from the one who, as a matter of form and in imitation of the ancient law, represents the purchaser of the estate.
(104) This transaction takes place as follows: The party who executes the will having, as in the case of other sales, called together five Roman citizens of the age of puberty as witnesses, and a balance holder, and having reduced his will to writing, sells his estate as a matter of form to a certain person, and the said purchaser makes use of the following words: "Let your family and money pass into my charge and custody, and, in order that you may make your will properly in accordance with the public law, let them be purchased by me with this bronze" (or as some authorities add) "with this brazen balance." Then he strikes the balance with the piece of bronze, and delivers the latter to the testator as purchase money. Next the testator, holding the will in his hands, says, "I do give and bequeath, and declare that I do so, everything written in these tablets and this wax, and do you, Roman citizens bear witness to my act." This ceremony is called nuncupation, for this term means to declare publicly; and indeed what the testator specially stated in writing in his will is considered to have been declared and confirmed by this general affirmation.
(105) Anyone who is under the control of, or belongs to the family of the purchaser or to that of the testator himself, should not be one of the witnesses; because, in imitation of the ancient law, the entire transaction which takes place for the purpose of establishing the will is considered to be carried on between the purchaser of the estate and the testator; and in former times, as we stated above, anyone who pur-
chased the estate of the testator occupied the position of an heir, and therefore the testimony of persons belonging to the family taken in a proceeding of this kind was rejected.
(106) Wherefore, if the purchaser of the estate is under the control of his father, neither his father, nor anyone in the power of the latter, for instance his brother, can be a witness. If, however, a son under parental control, after his discharge from the army, should make a will disposing of his castrense peculium, neither his father, nor anyone who is subject to the authority of the latter, can be a witness.
(107) We understand that the same rules which have been established with reference to witnesses, also apply to the balance-holder, for he is included in the number of witnesses.
(108) Not only can he who is under the control of the heir or legatee, or who is also under the control of the same person as the heir or the legatee be a witness and a balance-holder, but the heir, or the legatee himself, has a right to act in this capacity. Still, so far as the heir is concerned, as well as with reference to him who is in his power, and the party under whose control he himself is, we should not, by any means, make use of this right.
Concerning military wills.
(109) The rigid observation of these rules in the making of wills is not required of soldiers, by the Imperial Constitutions on account of their extreme want of legal knowledge. For, even if they should not summon the lawful number of witnesses, or sell the property, or declare the will to be theirs, they nevertheless have the right of testamentary disposition.
(110) Moreover, they are permitted to appoint even aliens and Latins as their heirs or legatees; while under other circumstances aliens are forbidden by the Civil Law from receiving estates and legacies, and Latins are forbidden to do so by the Lex Junta.
(111) Unmarried persons who are prohibited by the Lex Julia from receiving estates or legacies, and likewise bereaved persons, that is to say those who have no children and upon whom the Lex Papia forbids to take more than half an estate or legacy, are not disqualified from taking all of it under a military will.
(112) A Decree of the Senate was enacted at the instance of the Divine Hadrian, by which women were permitted to make a will even without the ceremony of coemption; provided, however, they were not under twelve years of age; and if they were not released from guardianship, they were required to execute their wills with the consent of their guardians.
(113) Females therefore appear to be in a better position than males, but a male under the age of fourteen cannot make a will, even with the authority of his guardian; but a female obtains the right of testamentary disposition with the consent of her guardian, after she has reached her twelfth year.
(114) Hence, if we wish to know whether or not a will is valid, we must ascertain in the first place whether the party who executed it had testamentary capacity, and next, if he had it, we must learn whether he made the will in accordance with the requirements of the Civil Law; with the exception of soldiers, who, as we have stated, are, on account of their want of legal knowledge, permitted to make a will in any way that they may desire, and in any way that they can.
(115) In order that a will may be valid under the Civil Law, it is not sufficient that the rule which we have laid down above with reference to the sale of an estate, the qualification of witnesses, and the declaration of the testator should be observed.
(116) But, above all things, it should be ascertained whether the appointment of the heir was made in regular form; for, where the appointment was made otherwise, it makes no difference whether the estate of the testator was sold, the witnesses assembled, and the declaration published in a proper manner, as we stated above.
(117) The regular appointment of an heir is as follows: "Let Titius be my heir." The following form at present seems to be approved, namely: "I order that Titius be my heir." This one, however, "I desire Titius to be my heir" is not recognized as correct; and the following expressions, "I appoint Titius my heir," and "I make Titius my heir," are not admitted as valid by the greater number of authorities.
(118) Moreover, it should be observed that if a woman, who is under guardianship, makes a will, she must do so with the consent of her guardian; otherwise her will is void by the Civil Law.
(119) The prætor, however, promises the heirs mentioned in the will to place them in possession of the estate in accordance with the provisions of the same, if the will is attested by the seals of seven witnesses, and if there is no one to whom the estate will belong as heir-at-law under the rule of intestacy; as, for example, a brother by the same father, or a paternal uncle, or the son of a brother, the heirs mentioned, in the will can retain the estate; "for the same rule of law applies as in the case where a will is not valid for some other reason, for instance because the estate was not sold, or the testator did not utter the words required for the declaration.
(120) But let us consider, even if there should be a brother or a paternal uncle, whether the heirs mentioned in the will should be preferred to them; for it is stated in a rescript of the Emperor Antoninus that parties who have obtained prætorian possession of an estate in accordance with the terms of a will not properly executed, can, by means of an exception based on fraud defend themselves against parties claiming the estate on the ground of intestacy.
(121) It is certain that this rule applies to the wills of males as well as to those of females which were not properly executed, as, for example, where they did not make use of the mere formality of selling the estate, or of speaking the words required for the declaration; and we shall see whether this constitution also applies to the wills of women which have been executed without the authority of their guardians.
(122) We are not speaking, however, of those women who are under the legal guardianship of their parents or patrons, but of those who have guardians of another kind that are compelled, even if unwilling, to grant their consent; otherwise it is evident that a parent or a patron cannot be removed by a will made without his sanction.
(123) Again, anyone who has a son under his control must take care either to appoint him as his heir or to disinherit him by name; otherwise, if he passes him over in silence this renders his will void. To such an extent is this true, that our preceptors hold that even if the son should die during the lifetime of his father, no one can be an heir under the will, for the reason that the appointment was not valid in the beginning. Authorities of the other school, however, are of the opinion that although the son, if he is living at the time of his father's death, becomes his father's heir on the ground of intestacy, without being barred by the mention of the heirs in the will; still, if he should die before his father, they hold that the said heirs can enter on the estate under the will, without the son being any longer an impediment; for the reason that they think that the will was not valid from the beginning, on account of the son having been passed over.
(124) If, however, the testator should pass over others of her children, the testament is valid, but the persons who have been passed over will have a right, with the heirs mentioned therein, to equal shares of the estate, if they are proper heirs; and to half of it if they are strangers. For example, if anyone should appoint his three sons his heirs, but should pass over his daughter, the daughter will become a co-heir to a fourth part of the estate; and for this reason will obtain the same share that she would have been entitled to if her father had died intestate; but if he should appoint foreign heirs, and pass over his daughter, the latter will be entitled to half of his estate. What we have mentioned with reference to a daughter we understand to apply to a grandson and to all the children of a son, of both sexes.
(125) What course then should be pursued? Although according to what we have stated the heirs mentioned in the will are only deprived of half the estate by the children of the testator, still, as the prætor promises to give the latter possession contrary to the provisions of the will, and according to this rule, foreign heirs arc excluded from the entire estate, and merely become heirs without obtaining any of the property,
(126) We formerly made use of this law as no difference between females and males existed; but the Emperor Antoninus recently stated in a rescript that women who were proper heirs could not obtain more by acquiring prætorian possession of an estate than they would by the right of accrual. This rule should also be observed in the case of daughters who have been emancipated; that is, they will obtain the same amount through prætorian possession of the property as they would have obtained by the right of accrual, if they had remained under the control of their father.
(127) A son, however, must be expressly disinherited by his father, otherwise he is not considered to have been disinherited. A son is held to be expressly disinherited when the following expressions are used, "Let my son Titius be disinherited"; or "Let my son be disinherited"; without mentioning his name.
(128) Other children of both sexes may be properly disinherited, among others, by the use of the following words: "Let all those remaining be disinherited"; which words are usually added after the appointment of the heirs. This, however, is only prescribed by the Civil Law.
(129) For the prætor requires all descendants of the male sex that is to say sons, grandsons, and great-grandsons, to be disinherited by name; but he considers it sufficient if descendants of the female sex, that is to say, daughters, granddaughters, and great-granddaughters, are either disinherited by name, or among others.
(130) Posthumous children must be either appointed heirs, or disinherited.
(131) In this respect the condition of all is the same, so that if a posthumous son, or any other child of either sex is passed over, the will is indeed valid; but after the birth of the posthumous child it will be broken, and for this reason will be absolutely void. Therefore, if a woman who is expected to give birth to a posthumous child should have an abortion, there will be nothing to prevent the heirs mentioned in the will from entering on the estate.
(132) Persons of the female sex are either expressly, or generally disinherited, but if they are disinherited with others, something must be bequeathed to them in order that they may not appear to have been passed over through forgetfulness. It has been decided, however, that persons of the male sex cannot legally be disinherited unless this is done expressly, for instance as follows: "Let any son who may be born to me be disinherited." . . . .
(133) In the same category with posthumous children are placed those who, by succeeding as proper heirs, become such to their relatives, just as posthumous children are by birth. For example, if I have a son, and by him a grandson, or a granddaughter in his power, because the son precedes by a degree, he alone enjoys the rights of a proper heir; although the grandson and granddaughter by him are both under the same authority. If, however, my son should die during my lifetime, or should, for any reason whatsoever, be released from my control, the grandson and granddaughter will succeed to his place, and in this way acquire the rights of proper heirs just as if they were posthumous children.
(134) Therefore, to avoid my will being broken in this way, just as I must appoint either my son my heir, or expressly disinherit him, otherwise my will will not be valid; so it is necessary for me to appoint my grandson or granddaughter my heir, or disinherit them; lest, if my son should die during my lifetime, my said grandson or granddaughter, by succeeding to his place, may break my will in the same way as if they had been posthumous children. This is provided by the Lex Junia Vellæa, in which the method of disinheritance is prescribed, that is to say, posthumous children of the male sex shall be expressly
 Original manuscript illegible.
disinherited, and those of the female sex shall be disinherited expressly, or generally with others; provided, however, that something is bequeathed to those who are disinherited with others.
(135) It is not necessary for children emancipated by the Civil Law to either be appointed heirs, or disinherited, for the reason that they are not proper heirs. The prætor, however, orders all children of both sexes to be disinherited if they are not appointed heirs; if they are of the male sex they must be expressly mentioned, and if of the female sex they must either be expressly mentioned, or disinherited among others; and if they are neither appointed heirs nor disinherited the prætor, as we have stated above, promises to grant them possession of the estate in opposition to the terms of the will.
(135a) Children who have been granted Roman citizenship along with their father, are not subject to his authority, if at the time citizenship was granted or afterwards, the father did not petition to retain them under his control — and the rule is the same if he did petition but did not succeed — for children who are placed under the control of their father by the Emperor differ in no respect from those who are subject to his authority from their birth.
(136) Again, adopted children, as long as they remain in this condition, occupy the place of natural children; but when they have been emancipated by their adoptive father, they are not included among his children, either by the Civil Law, or by the Edict of the Prætor.
(137) On the other hand, for this reason it happens that as long as they remain in the adoptive family, they are considered as strangers so far as their natural father is concerned; but if they should be emancipated by their adoptive father, they will then be in the same condition as they would have been had they been emancipated by their natural father.
(138) If anyone, after having made a will, should either adopt a son, who is his own master, in an assembly of the people, or one who is under the control of his parent through the intervention of the Prætor, his testament will undoubtedly be broken, just as it would have been by the subsequent birth of a proper heir.
(139) The same rule applies where, after having made a will, a wife comes into the hand of the testator, or he marries a woman who is in his hand; for in this way she takes the place of a daughter, and becomes a proper heir.
(140) It makes no difference whether either of the parties adopted was appointed an heir by the will, for, so far as their disinheritance is concerned, the question would seem to be superfluous; as, at the time the will was made, they were not included in the number of proper heirs.
(141) Likewise, a son who has been manumitted after the first or second sale, breaks a will previously executed; for the reason that he is restored to the authority of his father, and it makes no difference whether he was appointed an heir, or disinherited by the said will.
(142) The same rule formerly applied to one for whose benefit proof of error is permitted by the Decree of the Senate, for the reason that he was born of an alien, or of a Latin woman who was married with the understanding that she was a Roman citizen; for, whether he was appointed heir, or disinherited by his father, or whether, during the lifetime of the latter, the error was proved, or this was done after his death; the will was absolutely broken, as by the birth of a posthumous child.
(143) Now, however, by a late Decree of the Senate enacted at the instance of the Divine Hadrian, if the error is proved during the lifetime of the father, the will is in every instance broken, as in former times; but where it is proved after the death of the father, if the son was passed over in silence, the will is broken. But if he was mentioned in it as the heir, or disinherited, the will is not broken, in order that carefully executed wills may not be rescinded at a time when they cannot be renewed.
(144) A former will is revoked by one subsequently executed; nor does it make any difference whether an heir ever appears or not, for it only is considered whether he might take under it if he did appear. Therefore, if the heir appointed by the last will, which was legally executed, is unwilling to take under the same; or if he should die during the lifetime of the testator, or after the death of the latter, and before he had entered upon the estate; or if he should be excluded for not having accepted the estate within the prescribed time, or on account of the condition under which he was appointed not having been complied with; or by the Lex Julia on account of celibacy; in all these cases the testator dies intestate; for the first will having been revoked by the subsequent one is not valid, and the last will also has no effect, as there is no heir under it.
(145) Wills legally executed may become void in another way, as for instance, when he who executed the will loses his civil rights, and how this may happen was stated in the First Commentary.
(146) Moreover, in a case of this kind we say that a will may become inoperative; for although wills which are revoked, and those which in the beginning are not legally executed are alike invalid, and those which have been properly executed become invalid on account of loss of civil rights, they, nevertheless, may be said to be rescinded; still, for the reason that it is more convenient for the different cases to be designated by different names, some of these wills are said not to have been legally executed, and others which have been legally executed are either broken or become void.
(147) However, wills which in the beginning were not legally executed, or if they were legally executed afterwards became void, or were revoked, are still not absolutely inoperative; for if they have been sealed with the signets of seven witnesses, the appointed heir can demand possession of the estate in accordance with the provisions of the will, provided the deceased testator was a Roman citizen and his own master at the time of his death; but if the will became inoperative, for example, because the testator lost his citizenship or his freedom, or gave himself in adoption, and he dies under the control of his adoptive
father, he cannot demand possession of the estate in accordance with the provisions of the will.
(148) Therefore, those who obtain prætorian possession of an estate in accordance with the provisions of a will which was not properly executed in the first place, or which if it was properly executed, was subsequently broken, or became void; provided they can establish their right to the estate can obtain actual possession of the same. If, however, they can be deprived of the estate by some one having a better claim they will be entitled only to nominal possession.
(149) For, if anyone has been appointed heir under the Civil Law by either a former or a subsequent will; or is the heir-at-law to an intestate estate, he can deprive the nominal possessor of the same; but, if no one else is an heir under the Civil Law, the possessor can retain the estate, nor will cognates, who have no legal title, have any right to deprive him of it.
(149a) Sometimes, however, as we have mentioned above, heirs who were appointed by will are preferred to heirs-at-law; for instance if the will was not legally executed either because the estate was not sold, or because the testator did not utter the formula of declaration; for if the agnates of the deceased should claim the estate they can be barred on the ground of fraud in accordance with the Constitution of the Divine Antoninus.
(150) Prætorian possessors of an estate are not excluded under the provisions of the Lex Julia, by which estates which have no heirs are ordered to escheat to the government, if the deceased left no successor of any kind.
(151) A will legally executed may be rendered void by the expression of a contrary intention, but it is evident that it cannot be rendered inoperative by such an intention alone; because after the testator was unwilling that it should stand, and even if he went so far as to cut the cord with which it was tied, it will, nevertheless, continue to be valid under the Civil Law. Moreover, if he should erase or burn the will, what he wrote will still be valid, although the proof of it may be difficult.
What then should be done? If anyone demands prætorian possession of an estate on the ground of intestacy, and he who is appointed by the will claims it, the latter may, in this instance, be excluded by an exception on the ground of fraud, provided it is proved to have been the intention of the testator that the estate should go to those entitled to the same as heirs-at-law; and this rule is set forth in a rescript of the Emperor Antoninus.
(152) Again, heirs are either designated necessary, or necessary and proper, or foreign heirs.
(153) A necessary heir is a slave appointed with the grant of his freedom; and he is so called because at the death of the testator, whether he is willing or unwilling, he at once becomes free and his heir.
(154) For this reason anyone who suspects that he is insolvent, usually appoints his slave his heir with the grant of his freedom as a substitute in the second or any inferior degree; so that, if his creditors are not satisfied in full, the property of his estate may be sold rather as belonging to the heir than to the testator himself, and the disgrace which results from the sale of the property of an insolvent estate may attach rather to the heir than to the testator; although as was held by Sabinus, according to Fufidius, that he ought not to suffer ignominy because the sale of the property of the estate was not caused by his fault but through the requirements of the law. We, however, adopt a different view.
(155) As a recompense for this inconvenience, the benefit is conferred upon the slave of acquiring for himself everything which 'he obtains after the death of his patron, whether it was reserved for him before or after the sale of the property; and although only a part of the claim may have been paid by the proceeds of the sale, his subsequently acquired property cannot again be sold on account of the debts of the estate, unless he should have acquired something on account of his being the heir, for example, the estate of a Latin freedman, and thereby have become more wealthy; while if the property of other persons when sold only pays a portion of the indebtedness, and they afterwards acquire any other property, the latter may be sold time and again.
(156) Proper and necessary heirs are, for instance, a son or a daughter, a grandson or a granddaughter by a son, and their descendants, provided they were under the control of the testator at the time of his death. In order, however, that a grandson or a granddaughter may become a proper heir, it is not sufficient for him or her to have been under the control of their grandfather at the time of his death, but it is necessary that their father should, during the lifetime of his father, have ceased to be a proper heir, either on account of death, or because of having been released from parental control in any other way whatsoever, for then the grandson or granddaughter will succeed to the place of his or her father.
(157) They are called proper heirs because they are family heirs, and even during the lifetime of their parent are to a certain extent considered to be joint owners of the estate, and therefore where anyone dies intestate, the first right to the succession belongs to his children. They are called necessary heirs for the reason that, under all circumstances, whether they are willing or unwilling, they become heirs in case of intestacy, as well as under the will.
(158) The prætor, however, permits them to relinquish the succession, in order that the estate of their father may be sold for the payment of debts.
(159) The same rule applies to the case of a wife who is in the hand of her husband, because she occupies the place of a daughter; as well as to a daughter-in-law who is in the hand of a son of the testator; for the reason that she occupies the place of a granddaughter.
(160) Moreover, the prætor gives the same power to reject an estate to one in mancipium, who has been appointed heir with the grant of freedom, although he is merely a necessary heir, and not a proper one, as is the case with a slave.
(161) Others who are not subject to the control of the testator are designated foreign heirs. Therefore, children who are not under our control when appointed heirs by us, are considered as strangers, for which reason children who are appointed heirs by their mother are also included in this class because women cannot have children subject to their authority. In like manner, slaves who are appointed heirs with the grant of their freedom, and are afterwards manumitted by their owner, are included in the same class.
(162) Moreover, power is granted to foreign heirs to deliberate whether they will, or will not, accept an estate.
(163) If, however, one who has the power to reject an estate should interfere with the property of the same, or one who is permitted to deliberate as to whether he will enter on an estate or not, should accept it, he has no power to reject it afterwards, unless he is a minor under twenty-five years of age; for the prætor comes to the relief of persons of this age when they rashly accept an estate which is injurious to them; as in all other cases where they are deceived. I remember that the Divine Hadrian even excused a person over the age of twenty-five years, where, after he had entered on an estate, a great debt was discovered, which at the time of the acceptance of the estate was not known to exist.
(164) Time to make up their minds, that is to say, a certain term for deliberation, is usually granted to foreign heirs in order that they may enter upon an estate within the prescribed period, and if they do not do so, they are barred from accepting it. Hence this is called "cretio," for the reason that the word "cernere" means, in one sense, to decide and to determine.
(165) Therefore, after the following clause: "Titius, be my heir," we should add: "and within a hundred days after you learn of your appointment, and are able to do so, you must state whether you accept or not; and if you do not do so, you shall be disinherited."
(166) And if an heir appointed in this manner desires to accept, he should do so within the prescribed time, that is to say he should utter the following words: "As Publius Mævius appointed me his heir by his will, I decide to accept the estate"; but if he should not make such a declaration, after the time has elapsed he shall be excluded; nor will it be of any benefit to him to act as the heir, that is to say, for him to make use of the property of the estate just as if he were the heir.
(167) But if an heir should be appointed without giving him time for deliberation, or be called to the succession as heir-at-law on the
 By the Roman law, the beneficiary under a will was not permitted to accept or reject the estate until the death of the testator; before which event, of course, title to it could not vest. The cretio was adopted for the purpose of enabling creditors to present and collect their claims within a reasonable time. If the declaration of acceptance was not made within the period specified, the heir forfeited all his rights under the will. So long as the inheritance was not accepted, it was held, by a legal fiction, to personally represent the deceased, "Personam defuncti sustinet," who was presumed still to have possession. — ed.
ground of intestacy, he can, either by deliberating or as acting as the heir, or by the mere intention of accepting the estate, become the heir, and he will be free to accept at any time, when he may desire to do so; but the Prætor, on the demand of the creditors of the estate, usually fixes a time within which if the party may enter on it if he wishes; and if he does not, the creditors may be permitted to sell the property of the deceased.
(168) But, just as one who has been appointed heir with time for deliberation does not actually become the heir unless he formally accepts the estate, so he will not be excluded unless he fails to make the declaration to that effect within the prescribed time; and, therefore, although before the time has expired he may have decided not to accept the estate, still, by having changed his mind and declared that he will accept, before the time for deliberation has elapsed, he can become the heir.
(169) But just as he who was appointed heir without time for deliberation, or who was called to the succession as heir-at-law on the ground of intestacy, becomes heir by the mere expression of his will; so, by a contrary statement he is immediately excluded from the inheritance,
(170) Moreover, every period granted for deliberation has a prescribed limit, and in such cases a reasonable time is considered to be a hundred days. Still, by the Civil Law, a longer or a shorter period can be granted, though the Prætor sometimes shortens a longer one.
(171) Although the time for deliberation is limited to certain days, still, one kind of limitation is designated common and the other certain; common, being that which we have described above, that is, where the following words: "When he has learned of it, and is able," are added; certain, is that in which other words are written instead of those above mentioned.
(172) A great difference exists between these two grants of time, for in the common one no days are computed except those during which the party knows that he has been appointed heir, and is able to decide; but where a certain time has been granted, notwithstanding the party may not know that he has been appointed heir, the days are reckoned continuously; and, likewise, if for any reason he is prevented from stating his decision, or, further, if he has been appointed heir under some condition, the time will still continue to be reckoned, and hence it is better and more convenient to make use of the common method.
(173) This certain period of computation is called continuous for the reason that the days are reckoned without cessation; but, still, on account of the harshness of this method, the other is ordinarily employed, and hence is styled common.
(174) Sometimes, we appoint two or more degrees of heirs in the following manner: "Lucius Titius, be my heir, and make your declaration within the next hundred days after you know of your appointment, and are able to do so; and if you should not announce your decision in this manner, you shall be disinherited. Then you, Mævius, be my heir, and announce your decision within a hundred days, etc." And afterwards we can make as many substitutions as we desire.
(175) We are permitted to substitute one or several persons in the place of one; and, on the other hand, to substitute one or several in the place of several.
(176) Therefore, where the heir is appointed in the first degree he becomes such by acceptance and the substitute is excluded; if he does not declare his acceptance, he will be excluded, even if he acts as heir, and the substitute will succeed in his stead; and if there are several degrees in succession, the same thing takes place under this rule in every instance.
(177) Where, however, the time for acceptance is fixed without mentioning disinheritance, that is to say as follows: "If you do not announce your acceptance of the estate, then let Publius Mævius be my heir," a different rule will apply; for if the party first appointed — even though he does not announce his acceptance — acts as heir, the substitute is only admitted to share in the estate, and both parties become heirs to equal portions of the same; and if he neither announces his acceptance, nor acts as heir, he will then be excluded from the entire estate, and the substitute will succeed to the whole of it.
(178) It was held by Sabinus that a substitute is not admitted as long as the heir first in degree has the right to announce his decision, even though he should have acted as heir, and in that way have become the heir; but that when the time prescribed for making a decision has expired, the substitute could be admitted, instead of the party who had been acting as heir. It was held by others, however, that even while the term prescribed for making the decision was pending the heir, by the exertion of authority as such, would admit the substitute to share in the estate, and that the former could not again revert to his right to decide.
(179) As we have stated above, we can not only appoint a substitute for our children under the age of puberty, who are subject to our authority, that is, if we have another heir and they should fail to inherit; but also even if they should become our heirs and die before reaching the age of puberty, another may be their heir; as for example, "Let my son Titius be my heir; and if my son does not become my heir, or if he should do so and die before he becomes his own guardian, then let Seius be my heir."
(180) In this instance, if the son does not become the heir, the substitute will be the heir to the father; but if the son should become the heir and die before reaching puberty, the substitute will become the heir to the son himself. On this account there are, as it were, two wills, one that of the father, the other that of the son, just as if the son himself had appointed an heir; or, in fact, there is one will disposing of two estates.
(181) However, in order that the minor may not be subjected to the risk of treachery after the death of his parent, it is the usual practice to make the substitution publicly, that is to say, in the same part of the will in which we appoint the minor our heir; for as ordinary substitution only calls a substitute to the succession if the minor should not become the heir, which takes place where he dies while his parent is still living; in which instance we cannot suspect the substitute of being guilty of foul play, as during the lifetime of the testator everything which is contained in the will is unknown.
A substitution like the one above mentioned by which, even if the minor should become an heir but should die before attaining the age of puberty, we call the substitute to the succession, is one which we. write separately on tablets subsequently executed, and seal up by our own cord and wax after having provided in the first tablets that those written afterwards shall not be opened before he reaches the age of puberty.
It is much safer, however, for both kinds of substitution to be sealed up in different tablets subsequently executed, for if this should be done, or separate substitutions be made, as we have stated, it can be understood from the first that the same substitution is made in the second.
(182) Not only where children under the age of puberty are appointed heirs, can we make a substitution for them, so that, if they should die before attaining puberty, the person whom we designated shall be our heir, but this will even be the case if they are disinherited; therefore, in this instance, if anything should be acquired by the minor from the estates of relatives either by inheritance, legacies, or donations, it will all belong to the substitute.
(183) What we have stated with reference to the substitution for children under the age of puberty, whether they have been appointed heirs or disinherited, we understand also to apply to posthumous children.
(184) We cannot, however, appoint a substitute for a stranger who is appointed an heir in such a way that if the stranger should become the heir and die within a certain time, another shall be his heir; but we are only permitted to bind him by means of a trust to transfer our estate, either wholly or in part, and what this rule is we shall explain in its proper place.
(185) Freemen as well as slaves, whether they belong to us or to others, may be appointed heirs.
(186) A slave belonging to us must, however, be appointed heir and declared to be free at the same time, that is to say, in the following manner: "Let Stichus, my slave, be free and my heir," or "Let him be my heir and be free."
(187) For if he is appointed heir without the grant of his freedom, even if he should subsequently be manumitted by his owner, he cannot be the heir, because his appointment, in the first place, is not valid, and therefore although he may have been alienated, he cannot declare his acceptance of the estate, even by the order of his new master.
(188) When a slave is appointed with the grant of his freedom, and remains in the same condition he becomes free by the terms of the will, and hence is a necessary heir. If, however, he should be manumitted by the testator himself, he can use his own discretion as to entering on the estate. If he is alienated, he should enter on the estate by the order of his new master, for which reason the latter becomes the heir through him, as he himself cannot be either the heir, or free.
(189) When a slave belonging to another is appointed heir and he remains in the same condition, he should enter on the estate by the order of his master. If, however, he has been alienated by him, either during the lifetime of the testator, or after the death of the latter, before he makes up his mind whether he will accept the estate or not, he must act by the order of his new master; but if he has been manumitted, he can use his own judgment as to the acceptance of the estate.
(190) If, however, a slave belonging to another is appointed heir with the period usually allowed for acceptance, it is understood only to date from the time when the slave himself knew that he had been appointed heir, and no obstacle existed to prevent him from notifying his master, in order that he might accept the estate by his order.
(191) Let us next consider legacies, a part of the law which does not seem to have any reference to the subject under consideration, for we are discussing these legal titles by which rights are acquired by us in the aggregate; but we have, at all events, to discuss wills and testamentary heirs, and it is not without reason that this legal subject should, in the next place be examined.
(192) There are four kinds of legacies, for we either make bequests by asserting a claim, by condemnation, by permission, or by way of preference.
(193) We bequeath legacies by way of claim as follows: "I give and bequeath my slave Stichus to Lucius Titius"; or if only one of the expressions, "I give" or "I bequeath" be employed, the legacy is properly bequeathed by way of claim, and the prevailing opinion is that if the bequest was made in the following language: "Let him take," or "Let him have for himself," or "Let him seize"; the legacy will also be bequeathed as a claim.
(194) .A legacy bequeathed in this manner is so called because after the estate has been entered upon, the property immediately vests in the legatee by quiritarian right; and if the legatee claims the property from the heir, or from anyone else who has it in his possession, he should bring an action to recover it, that is to say, claim that the property is his by quiritarian right.
(195) Jurists differ only upon one point, namely, Sabinus, Cassius, and our other preceptors hold that what has been bequeathed in this manner becomes the property of the legatee as soon as the estate has been accepted, even if he is ignorant that the legacy was left to him; but that after he does know it, and has rejected it, the legacy will no longer be valid. Nerva, Proculus, and the authorities of the other
school, however, do not think that the bequest becomes the property of the legatee if he should refuse to accept it. But at present, in accordance with the terms of a Constitution of the Divine Pius Antoninus, the opinion of Proculus seems to be the one which has been adopted; for when a Latin was bequeathed to a colony in this manner, the Emperor said: "Let the decurions deliberate whether they wish him to be their property, just as if he had been bequeathed to an individual."
(196) Only those things can be legally bequeathed, subject to be claimed, which belonged to the testator himself by quiritarian right. It has been decided however, that those, which are estimated by weight, number, or measure are required to only belong to the testator by quiritarian right at the time of his death; as for instance, wine, oil, grain, and coin. It has also been held that other property must have belonged to the testator by quiritarian right at both times; that is to say, when he made the will, and when he died, otherwise the legacy will be void.
(197) This, however, is the rule only under the Civil Law. Subsequently a Decree of the Senate was enacted at the instance of the Emperor Nero, by which it was provided that if a testator bequeathed anything which had never belonged to him, the legacy would be valid just as if it had been left in the most approved manner, "the most approved manner" meaning where it is left by condemnation, m which way property belonging to another can be bequeathed, as will appear hereafter.
(198) If anyone should bequeath property belonging to him, and, after having made his will, should alienate it. the greater number of authorities hold that the legacy is not only void under the Civil Law, but that it does not become valid by the Decree of the Senate.
This opinion was promulgated for the reason that even if anyone should bequeath his property by condemnation, and afterwards should alienate it, many authorities think that although, by strict law, the legacy is still due, if the legatee demands it, he can be barred by an exception on the ground of fraud as claiming something contrary to the intention of the deceased.
(199) It has been established that if the same property is bequeathed by way of claim to two or more persons, whether jointly or severally, and all of them demand the legacy, each of them is only entitled to a certain portion of the same; and if any share is rejected it will vest in the co-legatee. A legacy bequeathed jointly as follows: "I do give and bequeath my slave Stichus to Titius and Seius"; severally, as follows: "I do give and bequeath my slave Stichus to Titius," "I do give and bequeath the same slave to Seius."
(200) Where a legacy is bequeathed as a claim, conditionally, the question arises to whom does it belong while the condition is pending? Our preceptors hold that it belongs to the heirs, as in the case of a slave to be conditionally free, that is to say, a slave who has been ordered to be free by a will under a certain condition, and who, it is established, in the meantime belongs to the heir. The authorities of the other school however, think, that the property does not belong to anyone in the meantime; and they assert that this rule applies even more forcibly in the case where a legacy has been bequeathed absolutely, before the legatee has accepted it.
(201) We bequeath a legacy by condemnation, as follows: "Let my heir be condemned to give my slave Stichus"; or if it is only written, "Let him give my slave Stichus"; this is a legacy by condemnation.
(202) By this same form of a bequest property belonging to another can also be bequeathed, so that the heir will be obliged to purchase either the article referred to and deliver it, or pay its estimated value.
(203) Any property which is not yet in existence may be bequeathed by condemnation provided it comes into existence hereafter; as for instance, any crops which may be produced on such-and-such land, or any child which may be born from such-and-such a female slave.
(204) Any bequest made in this way, after an estate has been entered on, even though it has been made unconditionally, unlike a bequest left to be claimed, is not immediately acquired by the legatee, but still belongs to the heir, and therefore the legatee must bring an action to recover it, that is to say, he must allege that the heir is required to transfer it to him; and then if the property is subject to mancipation, the heir should either transfer it to him in this way, or surrender it in court, and give him possession. If, however, it is not subject to mancipation, it will be sufficient if he merely delivers it, for if he should only deliver but not sell anything susceptible of mancipation, the legatee will obtain complete ownership only by usucaption; and as we have mentioned in another place, usucaption of movable property is acquired after a year's possession, and real property after possession for the term of two years.
(205) Another distinction exists between a bequest by claim and one by condemnation; for where property is left to two or more persons by condemnation, and this is done jointly, each is entitled to a certain share, as in the case where a legacy is bequeathed by claim; but if the bequest is made severally the entire amount is due to each legatee, and the result is that the heir must deliver the article itself to one and pay its value to another. In a joint bequest, a share which has lapsed does not belong to the co-legatee, but remains a part of the estate.
(206) What we have stated with reference to the lapsed share of a legacy bequeathed by condemnation remaining as a part of the estate, and where it is left as a claim, accruing to the co-legatee, we should observe was established by the Civil Law before the enactment of the Lex Papia; but after the Lex Papia a lapsed share of the legacy is considered to have no owner, and belongs to those who are mentioned in the will as having children.
(207) And although heirs who have children have the best right to a legacy which is considered to have no owner, and heirs who have no children have the next best right to the same; still, it is stated by the Lex Papia itself that a co-legatee who has children shall be preferred to heirs, even though they also may have them.
(208) It is held by the greater number of authorities with reference to the rights conferred upon joint legatees by the Lex Papia, that it makes no difference whether the legacy is bequeathed by claim or by condemnation.
(209) We make a bequest by permission as follows: "Let my heir be condemned to permit Lucius Titius to take and to have my slave as his own."
(210) This kind of a legacy has a broader application than one bequeathed by claim, but a narrower one than a bequest by condemnation, for in this way a testator can legally bequeath not only his own property, as well as that of his heirs; while by claim he can only bequeath his own property, and by condemnation he can bequeath any property belonging to any stranger whomsoever.
(211) If the property bequeathed belonged either to the testator himself or to his heirs at the time of his death, it is clear that the legacy is valid, even if at the time of making the will the property belonged to neither of them.
(212) If, after the death of the testator, the property vests in the heir, the question arises whether the legacy is valid; and most authorities hold that it is not. What then is the law? Although anyone can bequeath property which never belonged to the testator, and never after his death belonged to his heir, by the Decree of the Senate promulgated during the reign of Nero, all bequests are considered as having been left by condemnation.
(213) Just as property left by condemnation does not immediately belong to the legatee as soon as the estate has been entered upon, but remains the property of the heir until he transfers it to the legatee, either by delivery, sale, or surrender in court; so, in the form of bequest by permission the same rule applies; and therefore a personal action is also brought in the name of a legatee of this kind to recover or enforce, "Whatever the heir is required by the will to give or to perform."
(214) Nevertheless, some authorities are of the opinion that an heir is not bound by this kind of a legacy, either to sell the property, surrender it in court, or deliver it; but that it will be sufficient for him to permit the legatee to take the property, because the testator did not order him to do anything else than to grant him permission, that is to say, to allow the legatee to have it for himself.
(215) A more important distinction arises with reference to a legacy of this description, where the same property is left separately to two or more persons; for some authorities hold that each one is entitled to the whole, as where a bequest is left by claim; and others think that the condition of the first occupant is the better one, because in this kind of a legacy the heir is condemned to permit the legatee to have the property, and the consequence is, that if he allows the first one to take it, and he does so, he will be secure against anyone who afterwards demands the legacy from him; for the reason that he neither has the property so as to permit it to be taken by the second claimant, nor was he guilty of fraud in order to avoid having possession of the same.
(216) We bequeath property by a preferred legacy as follows: "Let Lucius Titius have my slave Stichus as a preferred legacy."
(217) Our preceptors, however, hold that property cannot be bequeathed in this way to anyone except to a person who has been appointed heir to a certain share of an estate, for to take as a preferred legatee is to receive something more than what he is entitled to as heir; and he only can do so who has been appointed heir to a certain part of the estate, and is entitled to it as a preferred legacy over and above his share of the said estate.
(218) Therefore, if a legacy of this kind is bequeathed to a stranger, it will be void, and to such an extent is this true that Sabinus was of the opinion that the defect could not even be remedied by the Decree of the Senate of Nero; for he says that by this decree only those faults are corrected which render a bequest invalid under the Civil Law, and not such as have reference to the person of the legatee. It was, however, held by Julian and Sextus that, even in this instance, the legacy was rendered valid by the Decree of the Senate, for it might happen, in a case of this kind, that by the words employed a legacy would be void at civil law; and hence it is clear that a proper bequest could be made to the same person by other words, for example, by claim, by condemnation, or by permission, for then the legacy is not valid on account of the defect in the person of the legatee, as when it is bequeathed to one to whom it can, under no circumstances, be left, as for instance, to an alien who cannot receive anything by a will; in which case it is evident that the Decree of the Senate does not apply.
(219) Likewise, our preceptors are of the opinion that a bequest made in this manner can be recovered by the party to whom it was bequeathed, in no other way than by the action for partition of the estate, that is to say, for the purpose of dividing the same; for it is part of the duty of the judge to decide with reference to the bequest of a preferred legacy.
(220) From this we understand that, according to the opinion of our preceptors, nothing can be left as a preferred legacy except what belongs to the testator; for no other property than that forming part of an estate can become the subject of this action. Hence, if a testator should, in this manner, bequeath property which is not his own, the bequest will be void by the Civil Law, but will be rendered valid by the Decree of the Senate. In one instance, however, they admit that property belonging to another may be left as a preferred legacy, as, for instance, where anyone bequeaths property which he has transferred to his creditors by a fiduciary sale; for they hold that it is the duty of the judge to compel the co-heirs to release the property from liability by payment of the debt, so that he to whom it has been bequeathed may be able to obtain it as a preferred legacy.
(221) Authorities of the other school are of the opinion that a preferred legacy may be bequeathed even to a stranger, just as if it were written in the will as follows: "Let Titius take my slave Stichus," and that the addition "as a preferred legacy" is superfluous; and therefore that the legacy would appear to be left by claim; and this opinion is said to be confirmed by a Constitution of the Divine Hadrian.
(222) Therefore, in accordance with this opinion, if the property belonged to the deceased by quiritarian right, it can be recovered by the legatee, whether he be an heir or a stranger; but if it only belonged to the testator by bonitarian right, the legacy will be valid under the Decree of the Senate even if left to a stranger, and must be delivered by the heir under an order of court in an action for partition of the estate. If, however, it did not belong to the testator by any title, it would be valid under the Decree of the Senate, whether it was left to the heir or to a stranger.
(223) Where the same property is left, either jointly or severally, to two or more legatees, each will be entitled to only proportionate shares, whether they are heirs, in accordance with the opinion of our preceptors, or whether they are strangers, in accordance with that of authorities belonging to the other school.
On the falcidian law.
(224) Formerly, anyone was permitted to exhaust his entire estate by legacies and the enfranchisement of slaves, thus leaving nothing to his heir but an empty name; and the Law of the Twelve Tables, by which it is provided that a person may dispose of his property absolutely by will, seems to permit this to be done in the following words: "In whatever way a man may bequeath his property it shall have legal effect"; and for this reason, those who were appointed heirs rejected the inheritance and therefore the majority of persons died intestate.
(225) Hence the Lex Furia was enacted, by the terms of which (except in the case of certain persons) it was not permitted to accept more than a thousand asses either as a legacy or as a donation in anticipation of death. This law, however, did not accomplish what was intended; for example, anyone who had an estate of five thousand asses, could leave to five men a thousand asses each, and, by doing so, exhaust the entire estate.
(226) In consequence of this, the Lex Voconia was subsequently passed, by which it was provided that no one could, as a legatee, mortis causa, take more than the heirs received. It is clear that by this law the heirs appeared to receive a part of the estate, but it still contained almost the same defect, for the testator could, in distributing his estate among many legatees, manage to leave so little to the heir that it
 The ancient forms of legacies described above were greatly modified by Nero and his successors, and were entirely abolished by Justinian, who decreed that no distinction, in this respect, should exist between bequests of every description. — ed.
would be of no advantage to him, for the sake of the profit, to assume the burdens of the entire estate.
(227) Then the Lex Falcidia was enacted, by which it was provided that no more than three-fourths of an estate could be bequeathed; and therefore it was necessary for the heir to have a fourth part of the same, and this is the law at the present time.
(228) The Lex Fufia Caninia also repressed inordinate license in the bestowal of grants of freedom to slaves, as we have stated in the First Commentary.
Concerning inoperative legacies.
(229) A bequest made before the appointment of an heir is void, for the reason that wills derive their force and effect from the appointment of an heir, and on this account the appointment of the heir is considered to be the beginning and foundation of the entire will.
(230) A grant of freedom cannot be made before the appointment of an heir, for the same reason.
(231) Our preceptors do not think that a guardian can be appointed under such circumstances, but Labeo and Proculus hold that a guardian can be appointed, because by such an appointment nothing is taken from the estate.
(232) A bequest made after the death of an heir is void, that is to say, if it is made as follows: "After my heir dies, I do give and bequeath," or "Let my heir give"; the following provision, however, is legal: "When my heir dies"; because it is not made after the death of the heir, but will become operative at the last instant of his life. Again, a bequest cannot be made as follows: "On the day before my heir dies," as this is not considered to be founded on any good reason.
(233) We understand that these rules also apply to the enfranchisement of slaves.
(234) Whether a guardian can be appointed after the death of an heir may perhaps give rise to the same doubt which arose with reference to his appointment before the institution of the heir.
(235) Legacies bequeathed by way of penalty are void. A legacy is considered to have been bequeathed by way of penalty, where it is left for the purpose of compelling the heir either to perform some act, or to refrain from doing so; as, for instance, where the bequest is made: "If my heir gives his daughter in marriage to Titius let him pay ten thousand sesterces to Seius"; or as follows: "If you do not give your daughter in marriage to Titius, you shall pay him ten thousand sesterces"; and again, for example, where the testator orders that if his heir did not build him a monument within the term of two years he should pay ten thousand sesterces to Titius, this bequest being by way of penalty; and finally, in accordance with this definition, we can suggest many similar cases of this kind.
(236) Freedom cannot be granted by way of penal bequest, although a question has arisen on this point.
(237) We cannot, however, raise any dispute with reference to the appointment of a guardian, because by such an appointment an heir cannot be compelled either to perform some act, or to refrain from performing it; and therefore, if a guardian is appointed by way of penalty, the appointment will appear rather to have been made under a condition, than by way of penalty.
(238) A legacy left to an uncertain person is void. An uncertain person is considered to be one of whom the testator has only an indistinct idea in his mind; as for example, where a bequest is made in the following terms: "Let my heir pay ten thousand sesterces to the first person who comes to my funeral." The same rule of law applies if he makes a bequest in general terms to all, as: "Whoever comes to my funeral"; or where the bequest is left as follows: "Let my heir pay ten thousand sesterces to whoever gives his daughter in marriage to my son." It also applies where the bequest is in the following terms: "Whoever shall be the first consuls nominated after the execution of my will," for all these bequests are deemed to have been made to uncertain persons; and, finally, many other instances of this kind might be adduced. The bequest of a legacy is legal where the designation of the class to which the person belongs is described with certainty, but the individual to whom it is left is uncertain; as, for instance: "Let my heir pay ten thousand sesterces to that one of my relatives now living who comes first to my funeral."
(239) A testamentary grant of freedom, however, cannot be made to an uncertain person, because the Lex Fufia Caninia directs that slaves be enfranchised by name.
(240) A certain person must also be appointed a guardian.
(241) A legacy bequeathed to a posthumous stranger is void. A posthumous stranger is one, who, after his birth, will not be included among the proper heirs of the testator; and therefore a grandson born to an emancipated son is a posthumous stranger to his grandfather, and likewise the unborn child of a woman who is not considered a wife at Civil Law, is a posthumous stranger to his father.
(242) A posthumous stranger cannot even be appointed an heir, for he is an uncertain person.
(243) What we stated above properly has reference to legacies, although it was not unreasonably held by certain authorities that the appointment of an heir by way of penalty could not be made; as it makes no difference whether the heir is ordered to pay the legacy in case he should either perform or not perform some act, or whether a co-heir is appointed with him; for he is just as much compelled by the addition of a co-heir as by the payment of a legacy either to do, or not to do something contrary to his intention.
(244) It is a question whether we can legally bequeath a legacy to one who is in the power of him whom we have appointed the heir. Servius thinks that the legacy can be legally bequeathed, but that it will lapse if the legatee continues to be under control when the time arrives for the legacy to vest; and therefore, whether the bequest is absolute, and the party ceases to be under the control of the heir during the lifetime of the testator, or whether it is left under a condition, and this takes place before the condition is complied with; the legacy will be due.
Sabinus and Cassius think that a legacy can be legally bequeathed under a condition, but not absolutely; for, although the legatee may cease to be subject to the authority of the heir during the lifetime of the testator, still, the legacy must be understood to be void; because it would be considered as of no effect if the testator should die immediately after making his will, but that it would be valid if he should live longer would be absurd. The authorities of the other school, however, are of the opinion that a legacy left under a condition is inoperative, for the reason that we cannot be indebted any more conditionally than absolutely to those whom we have under our control.
(245) On the other hand, it is settled that if anyone under your control is appointed an heir, he can be charged with the payment of a legacy to you, but if you should become an heir through him the legacy will be extinguished, because you cannot owe yourself a legacy. If, however, your son should be emancipated, or your slave manumitted or transferred to another party, and he himself should become the heir, or make the other party his heir, the legacy will be due.
(246) Let us now pass to the consideration of trusts.
(247) And first let us examine trusts connected with estates.
(248) In the first place, it should be ascertained that the heir has been duly appointed according to law, and that he has been entrusted to transfer the estate to another; as otherwise, a will is void by which no one has legally been appointed an heir.
(249) The proper forms of words creating a trust, and employed are: "I beg, I ask, I wish, I entrust"; and these are just as binding when used separately as when they are united in a single phrase.
(250) Therefore, when we have written: "Let Lucius Titius be my heir," we can add: "I ask you, Lucius Titius, and I beg you, that as soon as you can enter on my estate you deliver and transfer it to Gaius Seius"; and we can also ask him to transfer a part of the same. It is likewise permitted to leave the trust under a condition, or absolutely, or after a certain day.
(251) After the estate has been transferred, he who transferred it will, nevertheless, continue to be the heir; and he who received the estate sometimes occupies the position of an heir, and sometimes that of a legatee.
(252) Formerly, however, he did not occupy the position of either heir or legatee, but rather that of a purchaser; for in those days it was customary for the party to whom the estate was transferred to give a coin as an evidence of the purchase of the same; and the stipulations usually entered into between the vendor and the purchaser of an estate were accustomed to take place between the heir and the party to whom the estate was conveyed, that is to say, as follows: The heir stipulated with the party to whom the estate was transferred that he would be indemnified for anything which he might be compelled to pay on account of the estate, or might otherwise pay in good faith; and if anyone were to bring an action against him on account of the estate, that it would be properly defended; and, on the other hand, the party who received the estate stipulated that if anything should come into the hands of the heir which belonged to the estate it should be delivered to him, and also that he should be permitted, either as the agent or attorney of the heir, to bring any actions which the latter was entitled to bring in his own name.
(253) In subsequent times, however, during the Consulate of Trebellius Maximus and Annseus Seneca, a decree of the Senate was enacted, by which it was provided that where an estate was transferred under a trust, the actions to which the heir was entitled, and also those which could be brought against him under the Civil Law, should be granted for and against the beneficiary of the trust. Under this Decree of the Senate, the judicial securities formerly in use were abandoned, and the Prætor was accustomed to grant equitable actions both in favor of, and against the party who received the estate as heir, and these are set forth in the Edict.
(254) But again, for the reason that the appointed heirs when requested to transfer either all the estate, or nearly all of it, refused to accept it on account of the little or no advantage received, and hence the trusts were extinguished, it was afterwards decreed by the Senate during the Consulate of Pegasus and Pusio, that the heir who was requested to transfer an estate should be permitted to retain a fourth part of the same, just as he is permitted to do under the Lex Falcidia, in the case of legacies; and the same permission was granted where separate things were left under the terms of a trust. By the provisions of this Decree of the Senate, the heir himself sustains all the burdens of the estate, and he who receives the remainder of the estate as the beneficiary of the trust, occupies the position of a partial legatee; that is to say, of one to whom a portion of the property has been left; which species of legacy is called partition, because the legatee divides the estate with the heir. Hence, the result is that the stipulations usually entered into by the heir and the partial legatee also take place between the person who receives the estate as the beneficiary of the trust, and the heir; that is to say, that the profit and loss arising from the estate shall be divided among them pro rata.
(255) Therefore, if the appointed heir is asked to transfer no more than three-fourths of the estate, it will then be transferred under the Trebellian Decree of the Senate, and rights of action will be granted pro rata on both sides against the heir under the Civil Law, and against the beneficiary of the trust under the Decree of the Senate; for, although the heir continues to be such even with reference to that part of the estate which he has transferred, and actions for the entire indebtedness of the estate can be brought against him; still, he cannot be made liable for anything more, nor can actions be granted against him for any further claims beyond the amount of interest which he has in the estate.
(256) If anyone is requested to transfer more than three-fourths of the estate, or all of it, there is ground for the application of the Pegasian Decree of the Senate.
(257) When, however, the heir has once entered upon the estate, provided he does so voluntarily — whether he retains a fourth of the same, or refuses to do so — he will be liable to the entire indebtedness of the estate; but if he retains a fourth, stipulations should be entered into between the partial legatee and the heir with reference to their respective shares; but if he transfers the entire estate, a stipulation should be entered into just as if the estate had been purchased and sold.
(258) But where the appointed heir refuses to enter on an estate for the reason that he says that he suspects it of being insolvent, it is provided by the Pegasian Decree of the Senate that, on the request of the party to whom he is asked to transfer it he may be compelled to accept and convey it, by order of the Prætor, and actions shall be granted both for and against him who received the estate as beneficiary of the trust, just as under the Trebellian Decree of the Senate. In this instance, no stipulations are required, because at the same time security is given to the party who transferred the estate, and rights of action with reference to the estate are transferred for and against the party who obtained it as beneficiary.
(259) It makes no difference, however, whether anyone who is appointed heir to the entire estate is asked to transfer all, or a portion of the same; or whether he who was appointed heir to a share is asked to transfer the entire share, or only a portion of it, for, in this instance also, the rule of the Pegasian Decree of the Senate is understood to apply to the fourth part of the share.
(260) Anyone can also leave single articles under a trust, as for instance, a tract of land, a slave, a garment, silver plate, money; and he may either charge the heir himself, or a legatee to deliver it, although a legatee cannot be charged with a legacy.
(261) Likewise, not only the property of the testator can be left under the terms of a trust, but also that of an heir, a legatee, or any other person whomsoever. Hence, a legatee may not only be charged to deliver the legacy bequeathed to him to another, but he may also be charged with the delivery of anything else belonging either to himself or to another; only it must be observed that no one can be asked to deliver to others more than he himself received under the will, for any bequest in excess of this would be void.
(262) Moreover, when property belonging to another is left under the terms of a trust, it is necessary for the party who is asked to deliver it either to purchase and transfer the said property, or to pay its value; just as in the case where property belonging to another is bequeathed by condemnation. Still, there are some authorities who hold that if the owner refuses to sell property left under the terms of a trust, the trust will be extinguished; though the rule is different where a legacy is bequeathed by condemnation.
(263) Freedom can also be conferred upon a slave under the terms of a trust, and either the heir or the legatee may be charged to manumit him.
(264) Nor does it make any difference whether the testator makes the request with reference to one of his own slaves, or to one belonging to the heir himself, or to the legatee, or even to a stranger.
(265) Therefore, a slave belonging to another must be purchased and manumitted; but if his owner is unwilling to sell him, the grant of freedom is extinguished; because in this instance no computation of value can be made.
(266) When a slave is manumitted under the terms of a trust, he does not become the freedman of the testator, even though he may have been his slave, but of the person who manumitted him.
(267) Where a slave is ordered to be free by a direct provision of a will, for instance, as follows: "Let my slave Stichus be free," or "I order my slave Stichus to be free," he becomes the freedman of the testator himself. No other slave can obtain his freedom by a direct provision of the will but one who belonged to the testator by quiritarian right at both times, that is to say, the time when he executed the will, and when he died.
(268) A great difference exists between bequests made under the terms of a trust and those left directly.
(269) Hence a bequest may be left under a trust, to be discharged by the heir of the heir, while a bequest of this kind made in any other way in the beginning of a will is inoperative.
(270) Likewise, a person about to die intestate can charge his heir to deliver his estate to a third party under the terms of a trust, but on the other hand, he cannot charge him with the payment of a legacy.
(270a) Moreover, a legacy left by a codicil is not valid unless it has been confirmed by the testator, that is, unless the testator provided in his will that whatever he might insert in a codicil would be ratified; a trust, however, may be left without any confirmation of a codicil.
(271) Again, a legatee cannot be charged with a legacy, but the beneficiary of a trust can himself be charged with the execution of a trust in favor of another.
(272) Likewise, freedom cannot be left directly to a slave belonging to another, but this can be done under the terms of a trust.
(273) No one can be appointed an heir or disinherited by a codicil, even though it may have been confirmed by the will; but the testamentary heir may be asked by a codicil to transfer the estate either wholly or in part, to another, although the codicil may not have been confirmed by the will.
(274) Moreover, a woman appointed an heir by anyone who is registered in the census as possessing a hundred thousand sesterces, cannot take under the Lex Voconia; but she can still receive an estate left to her under a trust.
(275) Latins who are forbidden by the Lex Junia to receive estates or legacies directly under a will, can do so under the terms of a trust.
(276) Moreover, while the slave of a testator under the age of thirty years is prohibited by a decree of the Senate from being appointed an heir, and declared free; still, it is held by many authorities that we can direct him to become free when he reaches the age of thirty years, and that then the estate may be transferred to him.
(277) In like manner, although we cannot, after the death of a person who was our heir, appoint another in his stead, still, we can request him to transfer the entire estate, or a portion of the same, to another party when he dies; and for the reason that a trust may be created to take effect after the death of an heir, we may bring about the same result by inserting in the will: "When my heir Titius is dead, I desire my estate to belong to Publius Mævius"; and, whichever method is employed, Titius will leave his heir bound to transfer the estate under the terms of the trust.
(278) Moreover, we can sue for legacies under the Formulary System, but we enforce the performance of trusts, at Rome, either before the Consul or the Prætor, who is especially charged by the law with this duty; in the provinces, however, it is done by the Governor.
(279) Again, legal questions arising from trusts are decided in the City of Rome at all times, but those having reference to legacies only during the regular sessions of the tribunals.
(280) The interest and profits of property left in trust are payable, provided the party charged with the trust is in default, but the interest of legacies is not payable; and this is stated in a rescript of the Divine Hadrian. I am aware, however, that it was held by Julianus that, where a legacy was left under the form of permission, the same rule applies as in the case of trusts, and this opinion is the one accepted at the present time.
(281) Legacies bequeathed in the Greek language are not valid; trusts bequeathed in this way are valid.
(282) Moreover, where an heir disputes a legacy left by way of condemnation, an action can be brought against him for double the amount of the claim; but he can only be sued for simple damages where he acts as trustee.
(283) Likewise, where anyone, through mistake, pays more than was due under the terms of a trust, he can recover the excess; but where, in the case of a legacy by condemnation, payment is made for more than was due, through mistake, the excess cannot be recovered. The same rule of law applies where nothing at all was due, and through some mistake or other, payment has been made.
(284) There were formerly other differences which at present no longer exist.
(285) For instance, aliens could take as beneficiaries of a trust, and which was, generally speaking, the original cause of trusts, but this was subsequently prohibited, and now a Decree of the Senate, enacted at the instance of the Divine Hadrian, provides that trusts left for the benefit of aliens shall be claimed by the Treasury.
(286) Persons who are unmarried are, by the Lex Julia, relating to wills, prohibited from receiving estates and legacies, and formerly were considered capable of being the beneficiaries of a trust.
(286a) Likewise, persons who have no children, and who for this reason under the terms of the Lex Papia lose half of their estates and legacies, were formerly considered capable of receiving the full benefit of trusts. Afterwards, however, they were forbidden by the Pegasian Decree of the Senate to enjoy the benefit of trusts, just as in the case of legacies and estates; and the property passed to those named in the will who have children, and, if none of them have any, to the people; as in the law with reference to legacies and estates which, for this or a similar reason, are deemed to have no owners.
(287) Again, in former times, property could be left under the terms of a trust to an uncertain person, or to a posthumous stranger, although he could neither be appointed an heir nor a legatee; but, by a Decree of the Senate, enacted at the instance of the Divine Hadrian, the same rule which applied to legacies and estates was adopted with reference to trusts.
(288) Likewise, there is no doubt that property cannot be left under a trust by way of penalty.
(289) Although in many branches of the law a much broader application to trusts exists than in the case of direct bequests, in other respects they are equally valid; still, a guardian cannot be appointed by will unless this is done directly, for instance, as follows: "Let Titius be the guardian of my child"; or "I appoint Titius guardian of my children"; but he cannot be appointed under a trust.
(1) By the Law of the Twelve Tables, the estates of persons dying intestate belong to their proper heirs.
(2) Children who were under the control of the deceased at the time of his death are held to be proper heirs, as for instance, a son or a daughter; a grandson or a granddaughter by a son; a great-grandson or a great-granddaughter by a grandson; nor does it make any difference whether these children are natural or adopted. Provided, however, that a grandson or a granddaughter, and a great-grandson or a great-granddaughter, are to be classed as proper heirs only when the party in the preceding degree has ceased to be under the control of his parent, either by the death of the latter, or for some other reason, for instance, emancipation; for if the son was in the power of the deceased at the time of his death, the grandson by that son cannot be a proper heir; and we understand that the same rule applies to all other descendants.
(3) A wife who is in the hand of her husband is a proper heir because she occupies the position of his daughter; as well as a daughter-in-law who is in the hand of his son, for she occupies the place of a granddaughter; she will, however, only be a proper heir if the son in whose hand she is was not under the control of the father at the time of his death. We also say that the same rule applies to her who is in the hand of a grandson on account of marriage, for the reason that she occupies the place of granddaughter.
(4) Posthumous children also, who if born during the lifetime of their parent would have been under his control, are proper heirs.
(5) The same rule of law is applicable to those in whose cases proof of error has been established after the death of the father under the provisions of the Lex Ælia Sentia, or the Decree of the Senate; for, if the error had been proved during the lifetime of the father, they would have been under his control.
(6) We understand that the same rule also applies to a son who, having been mancipated once or twice, is manumitted after the death of his father.
(7) Therefore, when a son or a daughter, and grandchildren of both sexes by another son, are equally called to the succession, the one who is nearest in degree does not exclude the one who is more remote; for it seems to be just that grandchildren should succeed to the place and share of their father. Under the same rule, if there is a grandson or a granddaughter by a son, and great-grandchildren by a grandson, they are all called at once to the succession.
(8) And, as it was decided that grandchildren and great-grandchildren of both sexes should succeed to the place of their father, it seems to be proper that the estate should be divided not per capita but per stirpes; so that the son should have half of the estate, and that two or more grandchildren by another son the remaining half; and if there should be one or two children by one son, and three or four by the other, half of the estate should belong to the two grandchildren by the son, and the other half to the three or four grandchildren by the other.
(9) If there is no proper heir, then the estate by the same Law of the Twelve Tables belongs to the agnates.
(10) Those are called agnates who are connected by lawful relationship. Lawful relationship is that which unites persons through the male sex. Therefore, brothers by the same father are agnates to those who are of the same blood, and it is not even required that they should have the same mother. Hence a paternal uncle is the agnate of the son of a brother, and vice versa. The sons of brothers are included in the same category, that is to say, those who are descended from two brothers and are usually called cousins, according to which rule also we can compute several degrees of agnates.
(11) The Law of the Twelve Tables does not grant an estate to all agnates at once, but only to those who are the nearest in degree at the time when it is certain that the deceased died intestate.
(12) Succession does not exist under this right of descent; therefore, if the agnates nearest in degree should fail to accept the estate, or should die before entering on it, the agnates next in degree will not legally be entitled to it.
(13) Moreover, we require that agnates should be the next in degree, not at the time of death, but when it became certain that the party died intestate, because if anyone should die after having made a will, it seemed to be better to accept the agnate next in degree, when it is certain that no one will be an heir under the will.
(14) With reference to women, however, it has been decided that one rule applies to the taking of estates left by them, and another to the taking of the estates of others by them. For the estates of women pass to us by the right of agnation, just as do those of males; but our estates do not belong to females who are beyond the degree of sisters by the same father. Therefore, the sister of a brother by the same father is his heir-at-law, but a father's sister and a brother's daughter cannot be the heir-at-law of one who occupies the place of a sister. A mother, or a stepmother, who passes into the hand of a father by marriage, is entitled to the same rights as a daughter.
(15) If the deceased leaves a brother and the son of another brother, as was previously stated, the brother is to be preferred, for the reason that he is nearest in degree; but another interpretation of the law is made in the case of proper heirs.
(16) If, however, no brother should survive the deceased, but there are children of more than one brother, the estate will belong to all of them; but the question arose if they were unequal in number, and one of the brothers left one or two, and the other three or four children, whether the estate shall be divided per stirpes, as is the rule among proper heirs, or per capita. It has, however, been long since decided that the estate shall be divided per capita; and therefore the estate shall be divided into as many portions as there are persons on both sides, so that each individual may have an equal share of the same.
(17) If there is no agnate, the same Law of the Twelve Tables calls gentiles to the inheritance. Who gentiles are we explained in the First Commentary, and as we called attention to the fact that the entire law relating to gentiles had fallen into disuse, it would be superfluous in this place to discuss the point with any degree of minuteness.
(18) The rules prescribed by the Law of the Twelve Tables with reference to the succession of intestate estates end here, and it is easy to understand how strict they were.
(19) For as soon as children were emancipated, they had no right to the estate of their parents under this law, as they had ceased to be proper heirs.
(20) The same rule applies to children who are not under the control of their father, for the reason that they, together with their father, had received Roman citizenship, and had not again been brought under his authority by the Emperor.
(21) Likewise, agnates who have suffered a loss of civil rights are, under this law, not admitted to the estate, for the reason that title by agnation is extinguished by the forfeiture of civil rights.
(22) Again, if the agnate next in degree should not enter on the estate, the one nearest to him is not legally admitted to the succession.
(23) Females agnates who are beyond the degree of sisters by the same father, have no right to succession under this law.
(24) In like manner, cognates who trace their relationship through persons of the female sex are not admitted; and, to such an extent does this rule apply, that even a mother and a son or daughter have no right reciprocally to an estate, unless by the mother having been placed in the hand of the husband by marriage, the rights of consanguinity should thereby have been established between them.
(25) But these unjust provisions of the law are now corrected by the Edict of the Prætor.
(26) For he calls to the succession all children whose legal title is defective, just as if they had been under the control of their father at the time of his death, whether they are alone, or there are also proper heirs; that is to say, they also come in with children who are under the control of their father.
(27) He does not, however, call agnates who have suffered a loss of civil rights and are not in the second degree after proper heirs; that is, he does not call them in the same degree in which they would be called by the law if they had not forfeited their civil rights, but in the third degree of proximity; for, although by forfeiture of civil rights they have lost their legal title, they certainly retain their rights of cognation. Hence, if there is anyone else who has an unimpaired right of agnation, he will be preferred, even though he may be in a more remote degree.
(28) The same rule applies, as some authorities hold, to the agnate who, if the next of kin should fail to accept the estate, would, nevertheless, be entitled to it by law. There are others, however, who hold that he should be called by the Prætor in the same order by which an estate is given to agnates under the law.
(29) It is certain that female agnates, who are beyond the degree of sisters, are called in the third degree; that is to say, where there is no proper heir, nor any other agnate.
(30) Those are also called in the same degree who are related through persons of the female sex.
(31) Also, children belonging to an adoptive family are called to the succession of their natural parents in this same order.
(32) Moreover, those whom the Prætor calls to a succession do not indeed become heirs by law, for the Prætor has no power to make heirs, and they become such only by some law, or some enactment which resembles a law; for example, by a Decree of the Senate, or an Imperial Constitution. When, however, the Prætor grants them possession of an estate they are placed in the position of heirs.
(33) In granting possession of an estate, the Prætor also takes cognizance of several other degrees, and he does this in order that no one may die without leaving a successor. We purposely do not treat of this matter in these Commentaries, as we have discussed this entire right in other Commentaries specially devoted to the subject.
(33a) It will be sufficient only to note the fact that, as we have already stated in the distribution of estates by law, cognation alone, as established by the Twelve Tables, would be of no advantage in taking an estate; and, therefore, unless a mother, in obtaining the estate of her children, has acquired the rights of consanguinity by being in the hand of her husband through marriage, she will have no right whatever under the law.
(34) Sometimes, however, the Prætor promises possession of an estate neither for the purpose of correcting or opposing the ancient law, but for the sake of confirming it; as he also grants possession of an estate in accordance with the provisions of the will to those persons who have been appointed heirs under a properly executed testament.
He also calls the proper heirs and agnates to the possession of an estate ab intestato. In this instance, the only benefit derived from his act is that he who, in this way, demands prætorian possession of the estate, can avail himself of the interdict which begins with the words: "Whatever portion of the property"; and the advantage of this interdict we shall explain in its proper place. On the other hand, if prætorian possession of the estate is not granted, it will belong to the said parties by the Civil Law.
(35) Moreover, possession of an estate is often granted to persons in such a way that they will not be able to obtain it, and possession of this kind is said to be inoperative.
(36) For example, if an heir is appointed by a properly executed will, and declares his acceptance of the estate, but refuses to demand prætorian possession of the same in accordance with the provisions of the will, being content with the fact that he is the heir under the Civil Law; still, those who, if a will had not been made, would have been entitled to the estate of the party who died intestate, can demand possession of the property, but the grant will be inoperative, as the testamentary heir can evict the estate.
(37) The same rule applies where a person having died intestate, his proper heir refuses to demand prætorian possession, being content with his title of heir-at-law, for an agnate will have a right to obtain possession of the estate; but the grant will be inoperative because the estate can be evicted by the proper heir. In like manner, if the estate should belong to an agnate by the Civil Law, and he should enter upon the same, but should fail to demand prætorian possession, a cognate in the nearest degree can demand it; but his possession of the estate will be inoperative for the same reason.
(38) There are other similar cases, some of which we have discussed in the preceding Commentaries.
(39) Let us now consider the estates of freedmen.
(40) Formerly, a freedman was permitted to pass over his patron in his will, with impunity, for the Law of the Twelve Tables only called a patron to the estate of his freedman, when the latter died intestate without leaving any heirs. Hence, if the freedman died intestate but left a proper heir, the patron was not entitled to any of his estate, but if he left a proper heir who was one of his natural children, no complaint could be made on this account. If, however, the proper heir was an adopted son or daughter, or a wife who was in his hand, it was evidently unjust that the patron should have no right to the estate.
(41) For this reason, this injustice of the law was afterwards corrected by the Edict of the Prætor, for if a freedman made a will, he is ordered to do so in such a way as to leave half of his estate to his patron; and if he left him either nothing, or less than half, the possession of half the estate is granted to the patron in opposition to the provisions of the will. If, however, the freedman died intestate, leaving as his heir an adopted son, or a wife who was in his own hand, or a daughter-in-law who was in the hand of his son; possession of half the estate is also granted to the patron as against these proper heirs. The fact that he has natural children will, however, permit the freedman to exclude his patron from the succession, not only with reference to the children whom he has under his control at the time of his death, but also those that have been emancipated, or given in adoption; provided any of them have been appointed to shares of the estate under the will, or if, having been passed over, they have, under the Edict, demanded prætorian possession contrary to the provisions of the will; for if they have been disinherited they do not, by any means, exclude the patron.
(42) Subsequently, by the Lex Papia, the rights of patrons were increased, so far as the wealthier freedmen were concerned; for it is provided by this law that where a freedman left an estate of a hundred thousand sesterces, or more, and had less than three children, an equal share of his estate was due to the patron, whether he made a will or died intestate. Therefore, if a freedman should leave but one son or daughter, his patron will be entitled to half his estate, just as if he had died without leaving either a son or a daughter; and if he should leave two sons or two daughters, a third part of his estate will be due to the patron; but if he left three children, the patron will be excluded from the succession.
(43) By the ancient law, patrons suffered no injury so far as the estate of freedwomen were concerned; for, as the latter were under the legal guardianship of their patron, they could not make a will without the consent of their patron; and, therefore, if he agreed to the execution of the will, he would either be appointed the heir, or if he was not, it was his own fault; for, if he did not consent to the will being made and the freedwoman should die intestate, he would obtain her property, because a woman cannot have proper heirs; and formerly no other heir could exclude a patron from the estate of his freedwoman.
(44) Afterwards, however, by the Lex Papia, the birth of four children released the freedwoman from the guardianship of her patron; and, for this reason, she was permitted to make a will without the consent of her guardian; and the law provided that a share equal to that of each of the children whom the freedwoman had at the time of her death, should be due to her patron. Therefore, if a freedwoman left four children and no more, a fifth part of her estate — if she died before they did — belonged to her patron, and if any of her children died before her, the share of the patron would be proportionally greater; and if all of them died, her entire estate would pass to him at her death.
(45) What we have stated with reference to a patron we understand to apply as well to his son, and also to his grandson by a son, as well as to a great-grandson born to the grandson by a son.
(46) The daughter of a patron, a granddaughter by a son, and a great-granddaughter by a grandson, were entitled to the same rights as the patron, under the Law of the Twelve Tables. Children of the male sex, however, are only called by the Edict to the succession, but the daughter of a patron can demand the possession of half the property of the estate of a f reedman contrary to the provisions of the will; or in case of intestacy, against an adoptive son, or wife or daughter-in-law who was in the hand of the deceased; and this was conceded by the Lex Papia on account of the woman having three children, otherwise the daughter would not have this right.
(47) But where a freedwoman who had four children died testate, a daughter of the patron was entitled to an equal share with each child; this rule was not, as some authorities hold, established on account of the children, but the words of the Lex Papia state that she is entitled to an equal portion, even if the freedwoman should die intestate. If, however, a freedwoman dies after having made a will, the same right is granted the daughter of the patron as would be granted contrary to the provisions of the will of a f reedman; that is, that the male children of patrons shall be entitled to possession of half the estate in opposition to the provisions of the will; although this part of the law has been written with very little care.
(48) From these observations it is apparent that the foreign heirs of patrons are far removed from the rights to which a patron is entitled, either with reference to the property of intestate children, or with reference to prætorian possession in opposition to the provisions of the will.
(49) Formerly, before the enactment of the Lex Papia, patronesses had only that right to the estates of their freedmen which was conferred upon patrons by the Law of the Twelve Tables; for they could not demand possession of half the estate of an ungrateful freedman contrary to the provisions of the will, or on the ground of intestacy, against an adopted son, a wife, or a daughter-in-law, which right was granted by the Prætor in the case of a patron and his children.
(50) The Lex Papia granted almost the same rights to a freeborn patroness, who had two children, and to a freedwoman who had three, which male patrons enjoy under the Edict of the Prætor. And the same rights were granted to a freeborn patroness if she had three children, as were conferred upon a male patron by the same law, but it did not bestow the same advantage upon a patroness who was a freedwoman.
(51) The Lex Papia, however, does not confer any new advantage upon a patroness on account of her children, so far as the estates of freedwomen are concerned, even if they should die intestate. Therefore, if neither the patroness herself, nor the freedwoman, has suffered a loss of civil rights, the estate will belong to her by the Law of the Twelve Tables, and the children of the freedwoman will be excluded, and this rule applies even if the patroness should have no children, for, as we stated above, women can never have a proper heir.
But, on the other hand, if either of them has suffered a loss of civil rights, the children of the freedwoman will exclude the patroness, for the reason that her title is legally destroyed on account of the forfeiture of civil rights, so that the children of the freedwoman obtain the preference by the right of relationship.
(52) Moreover, when a freedwoman dies after having made a will, a patroness, who has no right through children, cannot claim possession contrary to the provisions of the will of the freedman; but one who is entitled through her children, has the same right conferred on her by the Lex Papia as a patron has under the Edict in opposition to the provisions of the will of his freedman.
(53) The same law bestows upon the son of a patroness almost the same rights as upon a patron; but in this instance a single son or daughter is sufficient to authorize the privilege.
(54) All that relates to this subject appears to have been sufficiently discussed up to this point; and a more minute explanation will be found in my Commentaries devoted to this subject.
(55) Let us in the next place examine the estates of Latin freedmen.
(56) In order that this branch of the law may become more clear, we should remember what we have stated elsewhere, namely, that those who are now styled Latini Juniani were formerly slaves under quiritarian right, but by the aid of the Prætor had been placed in a position of apparent freedom, so that their property belonged to their patron by the right of peculium. Afterwards, however, by the Lex Junia, all of those whom the Prætor had protected while in nominal freedom became actually free, and were styled Latini Juniani; Latini, because the law intended them to be free just as those Roman citizens were who, having left the City of Rome for Latin colonies, became Latin colonists; Juniani, because they were free under the Lex Junia, even though they did become Roman citizens. Hence the author of the Lex Junia understood that the result would be that by this fiction, the property of deceased Latini would no longer belong to their patrons, for the reason that, as they did not die slaves, their estates could not belong to their patrons by the right of peculium; nor could the property of a Latin freedman belong to his patron by the right of manumission, and he considered it necessary, in order to prevent the benefit granted to freedmen from becoming an injury to their patrons, to provide that their property should belong to those who manumitted them, just as if this law had not been enacted; and, therefore, the property of Latins by this law belongs as it were by the right of peculium to those who manumit them.
(57) Hence it happens that the title to the property of Latins under the Lex Junia, and that to the estates of freedmen who are Roman citizens, differ greatly.
(58) For the estate of a freedman who is a Roman citizen will, by no means, belong to the heirs of his patron; but it will belong absolutely to the son of the patron, and to his grandsons by a son, and to his great-grandsons by a grandson; even though they may have been disinherited by their father. Moreover, the estates of Latins will pass to the foreign heirs of a patron in the same way as the peculium of slaves, and will not belong to the children of the person who manumitted them, if they are disinherited.
(59) Likewise, the estate of a freedman who is a Roman citizen belongs in equal parts to two or more patrons; although they may have had unequal shares in said slave, if they were his owners; but the estate of a Latin belongs to his patrons, according to the shares which each one owned in him when he was his master.
(60) Also, with reference to the estate of a freedman who is a Roman citizen, one patron would exclude the son of another, and the son of one patron will exclude the grandson of another; but the estates of Latins belong jointly to a patron and the heir of another patron, in proportion to the share which would have belonged to the person who manumitted the slave.
(61) Likewise, if one patron leaves three children, and another one, the estate of a freedman, who is a Roman citizen, is divided per capita, that is to say, the three brothers will take three shares, and the other heir the fourth share. The estate of a Latin, however, belongs to his successors in the same proportion as it would have belonged to the person who himself manumitted the slave.
(62) Again, if one of the patrons rejects his share to the estate of a freedman who is a Roman citizen, or dies before he formally accepts it, the entire estate will belong to the other; but the property of a Latin will belong to the people, so far as the share of the patron who refuses to accept it is concerned.
(63) Subsequently, during the Consulate of Lupus and Largus, the Senate decreed that the estate of Latins should belong, in the first place, to the party who manumitted them; and next to the children of the latter, who were not disinherited by name, according to their proximity; and then, by the ancient law, to the heirs of those who manumitted them.
(64) Certain authorities hold that, under this Decree of the Senate, the same rule applies to the estates of Latins as to those of freedmen, who are Roman citizens; and this was the opinion of Pegasus. This doctrine, however, is evidently incorrect, for the estate of a freedman who is a Roman citizen never belongs to the foreign heirs of his patron; while the estate of a Latin citizen under this very Decree of the Senate, where the party who manumitted him left no children, will belong to his foreign heirs. Likewise, with reference to the estate of a freedman who is a Roman citizen, disinheritance does not in any way
injure the children of the party who manumitted them; while in the case of the property of Latins, it is set forth in the said Decree of the Senate that where disinheritance is specifically made, they will be injured.
Hence, the only actual effect of this Decree of the Senate is, that the children of the party who manumitted the slave, and who are not disinherited by name, are preferred to foreign heirs.
(65) Therefore, an emancipated son of the patron who has been passed over, although he may not demand prætorian possession of his father's estate, in opposition to the provisions of the will, is still preferred to foreign heirs, so far as the estates of Latins are concerned.
(66) Moreover, a daughter and other proper heirs, although they may have been disinherited with others under the Civil Law, and entirely excluded from sharing in the estate of their father; still, in the case of the estates of Latins, unless they have been specifically disinherited by their father, they will be preferred to foreign heirs.
(67) Again, the estates of Latins will, nevertheless, belong to children who have refused to accept the estate of their father, for they also can not, by any means, be said to have been disinherited, any more than those who have been passed over in silence in a will.
(68) From all these examples, it is perfectly clear that if he who makes a Latin . . . .
(69) It also seems to be settled that if a patron has appointed his children his sole heirs to unequal shares of his estate, the property of a Latin belongs to them in the same relative proportions, for the reason that where there is no foreign heir, the Decree of the Senate becomes inoperative.
(70) If a patron should appoint a foreign heir along with his children, Cælius Sabinus says that the entire estate will belong to the children of the deceased in equal shares; because when a foreign heir appears, the Lex Junia does not apply, but the Decree of the Senate does. Javolenus, however, holds that the children of the patron will, under the Decree of the Senate, only be entitled to equal shares in that portion of the property to which foreign heirs would have been entitled under the Lex Junia, before the enactment of the Decree of the Senate; and that the remaining shares will belong to them in proportion to their interest in the estate of their father.
(71) Again, the question arises whether this Decree of the Senate refers to those children of a patron who are born of a daughter or granddaughter; that is to say, whether my grandson by my daughter will have a better right to the estate of my Latin than a foreign heir. The question also arises, whether this Decree of the Senate applies to Latins who belong to a mother; that is, whether, in the distribution of the estate of a Latin who belongs to a mother, the son of a patroness shall be preferred to the foreign heir of the mother. It was held by Cassius that, in both instances, there was ground for the application of the Decree of the Senate, but most authorities reject his opinion, for the reason that the Senate did not have in mind the children of female patrons who belong to another family, and this is evident from
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the fact that it excludes such as have been expressly disinherited; for it seems to have had in view those who are usually disinherited by their parent if they are not appointed heirs. For it is not necessary for a mother to disinherit her son or daughter, nor a maternal grandfather his grandson or granddaughter, if he or she did not appoint them heirs; whether we consult the Civil Law or the Edict of the Prætor, by which the possession of an estate is granted to children who are passed over contrary to the provisions of the will.
(72) Sometimes, however, a freedman who is a Roman citizen dies as a Latin; for example, where a Latin has obtained the right of Roman citizenship from the Emperor, with the reservation of the rights of his patron. For the Divine Trajan decided in a case of this kind that if a Latin obtained the right of Roman citizenship from the Emperor without the knowledge or consent of his patron, the said freedman resembles other Roman citizens, and can beget lawful children; but he will die a Latin, and his children cannot become his heirs, and also that he can only make a will in such a way as to appoint his patron his heir, and substitute another for him if he should refuse to accept the estate.
(73) And for the reason that the effect of this Constitution seems to be that men of this kind never die as Roman citizens, even though they may subsequently have acquired the right of Roman citizenship under the Lex Ælia, Sentia or the Decree of the Senate. The Divine Hadrian, induced by the injustice of this law, caused a Decree of the Senate to be enacted providing that freedmen who had obtained the right of Roman citizenship from the Emperor without the knowledge, or against the will, of their patrons, and afterwards availed themselves of the right by which, under the Lex Ælia, Sentia or the Decree of the Senate, they would have obtained Roman citizenship if they had remained Latins, should be considered to occupy the same position as if they had acquired Roman citizenship under the provisions of the Lex Ælia Sentia, or the Decree of the Senate.
(74) Moreover, the estates of those whom the Lex Ælia Sentia places in the class of dediticii, belong to their patrons, sometimes as if they were freedmen and Roman citizens, and sometimes as if they were Latins.
(75) For the estates of those who, had it not been for some offence which they perpetrated after having been manumitted, would have become Roman citizens, are granted by this same law to their patrons, just as the estates of those who have become Roman citizens, for they have not the power to make a will; and this opinion was not unreasonably held by the greater number of authorities, for it seems incredible that the legislator intended to grant the right to make a will to men belonging to the lowest rank of freedmen.
(76) The estates of those who, if they had not committed some offence, would, after their manumission, have become Latins, are granted to their patrons, just as if they had died Latins. It has not escaped my observation, however, that the legislator did not express his intention in this manner in a way which is sufficiently clear.
(77) Let us now consider the succession to which we are entitled by the purchaser of property.
(78) The property of debtors may be sold either during their lifetime, or after their death. For example, it is sold during their lifetime when they conceal themselves for the purpose of defrauding their creditors, and are not defended while absent; and the same rule applies to those who surrender their property under the Lex Julia, or when judgment has been rendered against them after the time has elapsed which has been fixed for the payment of a debt, partly by the Law of the Twelve Tables, and partly by the Edict of the Prætor. The property of a debtor is sold after his death, for example, when it is certain that he has left no heirs, or persons entitled to prætorian possession, or any other legal successor.
(79) If the property of an insolvent debtor is sold during his lifetime, the Prætor orders it to be taken into possession and advertised for thirty consecutive days; but for fifteen days if he is dead. He afterwards orders the creditors to assemble, and select one of their number as their representative, that is, one by whom the estate may be sold. Therefore, where the property of a living debtor is sold, the Prætor orders the sale to take place within ten days, or if he is dead, within five days. If the debtor be living, he orders thirty days to be added, and if he is dead he orders twenty. The reason why he orders a longer time to elapse before the sale of the property of a living debtor, is for the purpose of showing more care for the interests of the living by preventing too easy a sale of his estate.
(80) Moreover, the ownership of property under prætorian possession, or of the property of a debtor which is sold, is not absolute, but only provisional. Ownership under quiritarian right is only acquired by usucaption. Sometimes, however, it happens that ownership by usucaption can not be acquired by purchasers of the property of a debtor, for example, when an alien is the purchaser. . . . .
(81) Again, debts due to, or by the party from whom property is obtained, are not owed to, or by the prætorian possessor, or the purchaser of the property of the debtor; but can be collected by means of equitable actions, which we will explain in a subsequent Commentary.
(82) There are successions of other kinds which were not established by the Law of the Twelve Tables or by the Edict of the Prætor, but have been adopted by common consent.
(83) For when the head of a household gives himself in adoption, or a woman places herself in the hand of another, all their property, incorporeal and corporeal, as well as all debts due to them, are acquired by the adoptive father, or the purchaser, with the exception of those that are extinguished by the forfeiture of civil rights; as, for instance, usufructs, the obligation of the services of freedmen which is contracted by oath, and claims in legal actions where issue has been joined.
(84) On the other hand, any debt owed by the party who gave himself in adoption, or who came into the hand of another, does not
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pass to the purchaser or to the adoptive father, unless the indebtedness was hereditary; for then, because the adoptive father or the purchaser becomes the heir, they are directly liable; but he who gave himself in adoption, and the woman who came into the hand of another, cease to be heirs. But if the persons referred to are indebted in their own names, although neither the adoptive father nor the purchaser becomes liable, nor does he who gave himself in adoption, nor the woman who came into the hand of another remain bound, for the reason that they are released from liability by their loss of civil rights; still an equitable action is granted against both, on the ground that their forfeiture of civil rights has been rescinded, and if no defence is made to this action, the Prætor will permit all the property to be sold by the creditors which would have belonged to them, if they had not been subjected to the authority of another.
(85) Likewise, if an heir, before he declares his acceptance of the estate of an intestate, or acts as heir to the same, surrenders the estate in court, he to whom it was surrendered becomes the heir absolutely, just as if he himself had been legally called to the succession. If, however, the heir should surrender the estate after having accepted it, he will still remain the heir, and for this reason he will be liable to the creditors, and he must transfer the corporeal property belonging to the estate just as if he had surrendered the separate articles in court; but the debts are extinguished, and in this way the debtors to the estate profit by the transaction.
(86) The same rule of law applies where a testamentary heir accepts the estate, and then surrenders it in court; but if he surrenders the estate before entering on it, his act will be of no force or effect.
(87) The question arises whether a proper and necessary heir, by surrendering an estate in court, performs an act which is valid. Our preceptors hold that such an act is void; authorities of the other school, however, think that the same effect is produced as that caused by other heirs after the estate had been entered on; for it makes no difference whether a party becomes an heir either by declaring his acceptance, or as acting in the capacity of heir, or whether he is compelled by law to accept the estate.
(88) Let us now pass to other obligations, the principal division of which is into two classes, for every obligation either arises from a contract, or from an offence.
(89) And first, let us examine those which arise from contracts, of which there are four different kinds; for an obligation is contracted either by delivery of property, verbally, by writing, or by consent.
(90) An obligation by the delivery of property is contracted, for example, in the case of a loan for consumption. This generally takes place with reference to articles which are susceptible of being weighed, counted, or measured; such as money, wine, oil, grain, bronze, silver, and gold. This kind of property we transfer either by counting, measuring or weighing it with the understanding that it shall belong to him who receives it, and that, at some time or other, not the same article, but another of the same nature, shall be returned to us, and therefore
an obligation of this kind is called mutuum, because what was given to you by me, from being mine becomes yours.
(91) He also who received something that was not due from a person who paid him through mistake, is liable under a contract of this description, for a personal action can be brought against him under the formula, "If it appears that he was required to give"; just as if he had received the property as a loan for consumption. Hence certain authorities hold that a ward or a woman to whom payment was made of something which was not due, through mistake, and without the authority of his or her guardian, is not liable to a personal action; any more than they are for a loan for consumption. This species of obligation does not, however, appear to arise from a contract, for a party who gives with the intention of paying a debt, rather desires to discharge an obligation than to incur one.
(92) An obligation is verbally contracted by question and answer, as for instance: "Do you solemnly agree to give it to me?" "I do solemnly agree." "Will you give it?" "I will give it." "Do you promise?" "I do promise." "Do you pledge your faith?" "I do pledge my faith." "Do you guarantee?" "I do guarantee." "Will you do this?" "I will do it."
(93) The verbal obligation contracted by the expressions, "Do you solemnly agree to give?" "I do solemnly agree to give," is peculiar to Roman citizens; the others belong to the Law of Nations, and therefore they are valid among all men, whether they are Roman citizens or aliens. And even if they are uttered in the Greek language they are still valid, so far as Roman citizens are concerned, if they understand Greek; and on the other hand, although they may be stated in Latin, they will, nevertheless, be binding on foreigners, provided they are familiar with the Latin language. The obligation contracted by the words, "Do you solemnly agree to give?" "I do solemnly agree to give," is so peculiar to Roman citizens, that it cannot properly be expressed in the Greek language, although it is said to have been derived from the Greek.
(94) Therefore, it is said that there is one instance in which an alien may be bound by this phrase, that is to say, when our Emperor interrogates the ruler of a foreign people with reference to concluding peace, as follows: "Do you solemnly agree that peace shall exist?" or where the Emperor himself is interrogated in the same manner. This, however, is said to be too subtle a refinement, for if anything should be done to violate a treaty, an action is not brought under the stipulation, but the property is claimed by the law of war.
(95) It may be doubted if anyone . . . . .
(95a) ....  a debtor, by the order of his wife, provided her guardian consents, may make a statement of the amount of dowry which he owes. Another, however, cannot be bound in this way, and therefore if any other person promises a dowry to the husband in behalf of his wife, he will be liable under the common law, provided the husband had previously stipulated.
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(96) An obligation is likewise contracted by one of the parties speaking and promising the other without being interrogated; as where a freedman swears that he will give a present, or perform some labor or service for the benefit of his patron; and this is the sole instance in which an obligation is contracted by oath, for in no other are men rendered liable on account of having been sworn, as will be apparent if the Roman law is examined; although if we ascertain what the law is among aliens by searching the records of other states we might come to a different conclusion.
(97) If we stipulate that something shall be given to us which cannot be transferred, the stipulation is void; for example, if anyone stipulates for the transfer of a freeman whom he thinks to be a slave; or of a dead slave whom he believes to be living; or of a sacred or religious place which he supposes to be subject to human law.
(97a) Likewise, if anyone stipulates for something which cannot, in the nature of things, exist, as for instance, a hippocentaur, such a stipulation also is void.
(98) Moreover, if anyone stipulates under a condition which cannot take place, for example, if he should touch the sky with his finger, the stipulation is void. Our preceptors however, were of the opinion that a legacy bequeathed under an impossible condition should be paid, just as if it had been left unconditionally; but the authorities of the other school hold that a legacy is just as invalid as a stipulation, under such circumstances, and, indeed, no good reason can be given for establishing a distinction.
(99) Moreover, a stipulation is void if anyone ignorantly agrees that his own property shall be transferred to himself; as what already belongs to a person cannot be given to him. Finally, a stipulation is void where anyone stipulates as follows: "Do you solemnly agree to pay after my death?" or "Do you solemnly agree to give after your death?" The stipulation, however, is valid if anyone stipulates as follows, "Do you solemnly agree to give at the time of my death?" or "Do you solemnly agree to give when you die?" that is, the obligation is valid as it relates to the last moment of the life of the stipulator or promisor, for it has been considered contrary to legal principle to make the obligation attach to the person of the heir.
(100) Again, we cannot stipulate as follows, namely: "Do you solemnly agree to pay on the day before I die, or on the day before you die?" for the expression: "On the day before anyone dies," can only be ascertained after death has taken place; and, moreover, where death has occurred the stipulation becomes retrospective, and means the same as, "Do you solemnly agree to pay to my heir?" which is clearly void.
(101) What we have stated with reference to death must also be understood to apply to the loss of civil rights.
(102) A stipulation is also void when anyone does not answer the question which he was asked; for instance, if I stipulated for ten sesterces to be paid by you, and you promise five; or if I stipulate absolutely, and you promise conditionally.
(103) Moreover, a stipulation is void if we stipulate to pay a party to whose authority we are not subject. Hence the question arose to what extent the stipulation would be valid if a person should agree to pay one to whose authority he is not subject. Our preceptors are of the opinion that it would be valid for the entire amount, and that he who stipulated would be entitled to all of it, just as if he had not added the name of a stranger. The authorities of the other school, however, think that only half is due to him, and that the stipulation is void so far as the other half is concerned.
(103a) The case is different where, for instance, I stipulate as follows: "Do you solemnly agree to pay my slave or my son who is under my control?" for then it is settled that the entire amount is due, and that I can collect it from the promisor and the result is the same when I only stipulate for payment to my son who is under my control.
(104) Again, the stipulation is void where I stipulate with one who is under my control, and also if he should stipulate with me. Still, a slave belonging to the household, a daughter under paternal authority, and a woman in the hand of her husband, cannot only not bind themselves to the persons to whose authority they are subject, but they cannot bind themselves to anyone else.
(105) It is clear that a dumb person can neither stipulate nor promise; and the same rule applies to one who is deaf, because he who stipulates must hear the words of the promisor, and he who promises must hear those of the stipulator.
(106) An insane person cannot transact any business, because he does not understand what he is doing.
(107) A ward can transact all kinds of business, provided, however, that, as the authority of his guardian is necessary it be granted, just as if he himself was bound; for he can render another liable to himself even without the authority of his guardian.
(108) The same rule of law applies to women who are under guardianship.
(109) Still, what we have stated with reference to a ward is only true of one who has some intelligence; for an infant, and a child who is almost an infant, do not differ greatly from an insane person, because minors of this age have no judgment; but in the case of such minors a more indulgent interpretation of the law is made on account of the benefit resulting to them.
(110) Although, as we have already stated, a party not subject to our authority cannot stipulate for us, we can associate another with us in the stipulation which we make, who also stipulates for the same thing, and who is commonly called a joint stipulator.
(111) He, also, has a right of action as well as ourselves, and payment can be made to him as well as to us, but he can be compelled by the action of mandate to transfer to us anything which he may recover.
(112) Again a joint stipulator can also make use of other words than those which we employ. Hence, for example, if I stipulate, as follows: "Do you solemnly agree to pay?" the joint stipulator may say,
"Do you pledge your faith for the same?" or "Do you guarantee the same?" or vice versa.
(113) Likewise, he may stipulate for less, but not for more, than the stipulator. Therefore, if I stipulate for ten sesterces, he can stipulate for five; but, on the other hand, he cannot stipulate for more. Moreover, if I stipulate absolutely, he can stipulate under a condition, but not vice versa. The term "more or less," is understood not only to refer to quantity, but also to time, for to make payment immediately is more, and to do so after a certain period is less.
(114) To this rule there are certain exceptions, for the heir of a joint stipulator has no right of action. Likewise, the act of a slave as joint stipulator is void, although in all other cases he acquires property for his master by a stipulation. The better opinion is, that, the same rule applies to a slave in domestic servitude, because he occupies the place of a slave. Moreover, a son who is under the control of his father can act as a joint stipulator, but he does not acquire anything for his father; although, under all other circumstances, by stipulating he makes acquisitions for his benefit. Nor will he be entitled to any right of action unless he has been released from paternal control without the forfeiture of civil rights; as, for instance, by the death of his father, or because he himself has been installed a priest of Jupiter. We understand that the same rule applies to a daughter under the control of her father, and a woman in the hand of her husband.
(115) Others are usually liable for the party who promises, some of whom we call sponsors, others guarantors, and others still, sureties.
(116) A sponsor is interrogated as follows: "Do you solemnly agree to pay the same?" a guarantor as follows: "Do you guarantee the same?" and a surety as follows, "Do you pledge your faith for the same?" We shall see what names should be properly applied to those who are interrogated, as follows, namely: "Will you give the same?" "Do you promise the same?" "Will you do the same?"
(117) We often accept sponsors, guarantors, and sureties, when we desire to be provided with additional security; and we rarely make use of a joint stipulator, except when we stipulate that something shall be paid after our death. If we make such a stipulation ourselves, our act is void, and hence the joint stipulator is employed so that he may bring suit after our death; but if he should recover anything, he will be liable by an action of mandate to deliver it to our heir.
(118) The positions of a sponsor and a guarantor are similar, that of a surety is extremely unlike the others.
(119) For the former can enter into no obligations except verbal ones, although sometimes the party who promises is not bound, as for instance, where a ward or a woman without the authority of his or her guardian, promises to make a payment after his or her death. It is a question, however, if a slave or an alien should promise, whether his sponsor or guarantor will be liable.
A surety can enter into every kind of obligation, that is to say, whether it is contracted either by words, or by writing, or by consent,
and it makes no difference whether the obligation be a civil or natural one. To such an extent is this true, that he is also liable for a slave, whether it be a stranger who accepts him as security for the slave, or whether .it be the master himself who does so for a debt which is due to him.
(120) Moreover, the heir of a sponsor and a guarantor is not liable, unless we have reference to the heir of an alien guarantor, in whose State another rule than ours prevails; but the heir of a surety is also liable.
(121) Likewise, a sponsor and a guarantor are released by the Lex Furia from liability at the expiration of two years; and no matter what may be the number of the sureties at the time when the debt can be collected the obligation is divided into as many parts as there were sureties at that time, and each one of them is only liable for his respective share. Sureties, however, are perpetually liable, and no matter what may be their number, each of them is bound for the entire amount of the debt; and therefore the creditor is at liberty to collect the whole debt from any one of them whom he may select. But, now, according to a letter of the Divine Hadrian, a creditor is compelled to collect the proportionate part of the debt from each of the sureties who is solvent at the time. Hence, this letter differs from the Lex Furia in that if any one of the sponsors or guarantors should not be solvent, this does not increase the liability of the others; but if even only one of the sureties is solvent, the entire burden of all the others is imposed upon him.
But, as the Lex Furia only applies to Italy, the result is that in the other provinces both sponsors and guarantors, like "sureties, are perpetually liable; and each one of them is bound for the entire amount of the debt, unless they are, to a certain extent, relieved by the letter of the Divine Hadrian.
(122) Moreover the Lex Apuleia, introduces a certain partnership between sponsors and guarantors; for if any of them should pay more than his share he will have a right of action against the others to recover the surplus. This law was enacted before the Lex Furia, and therefore the question arises whether, after the passage of the Lex Furia, the benefit of the Lex Apuleia still remains. This is certainly the case outside of Italy, for the Lex Furia is in force only in Italy, while the Lex Apuleia embraces also the other provinces; but whether the benefit of the Lex Apuleia still continues to exist in Italy, is a question. But the Lex Apuleia does not apply to sureties, and therefore, if a creditor recovers his entire debt from one surety the latter alone must suffer the loss, that is to say, if the party for whom he became surety is not solvent. But, as appears from what has been already stated, he whom a creditor sues for the entire amount of the debt can, under the letter of the Divine Hadrian, petition for the action to be brought against him only for his proportionate share.
(123) Moreover, it is provided by the Lex Cicereia, that a creditor who accepts sponsors or guarantors, must previously publish and declare the amount of the claim for which he receives security, and the
number of sponsors or guarantors that he will accept as sureties for the obligation; and unless he does so, the sponsors and guarantors are permitted within the term of thirty days to demand a preliminary trial, by which it may be ascertained whether the declaration required under this law had been made, and if it should be decided that it had not been made, they shall be released from liability. No mention of sureties was made in this law, but it is customary when we receive sureties to make this statement.
(124) Moreover, the benefit of the Lex Cornelia is common to all, and by its provisions the same person is forbidden to become a surety for the same debtor to the same creditor, during the same year, for a larger sum of money than twenty thousand sesterces; and although sponsors or guarantors may bind themselves for a larger amount, for example, for a hundred thousand sesterces, they will still only be liable for twenty thousand. Again, we say that money which is lent under this law includes not only that which was actually loaned, but all certain to be due at the time that the obligation was contracted; that is to say, whatever is unconditionally included in the obligation, and therefore the money which we stipulate to be paid on a certain day comes under this provision, for the reason that it is certain that it will be due, although it cannot be collected until after the time has elapsed. All kinds of property are comprehended in this law under the term "money," and therefore, if we stipulate for wine, grain, land, or a slave, this law must be observed.
(125) In some cases, however, the law permits security to be taken to an indefinite amount; as for instance, for the purpose of dowry, or for what may be due to you under a will. Security may also be taken by an order of court. It is also provided by the Lex Julia, which imposes a tax of one twentieth on estates, that the Lex Cornelia shall not apply to the securities referred to in this law.
(126) Under this rule, also, the condition of all sponsors, guarantors, and sureties is the same, in that they cannot be liable for more than their principal owes; on the other hand, however, they may be liable for less, as we have stated with reference to a joint stipulator; for as is in his case, their liability is also accessory to the obligation of the principal, and the liability of the accessory cannot be greater than that of the principal.
(127) A further similarity exists between them in that, if the sureties should pay anything for the principal debtor, they will have a right to the action of mandate against him to recover it. Sponsors also, under the Lex Publilia are entitled to still another remedy, as they have a right to bring an action for double the amount, which is called the action to recover money expended.
(128) An obligation contracted by writing is made, for instance, by the entry of claims on an account book. Entries of this description are of two kinds; either from a thing to a person, or from a person to a person.
(129) The record from a thing to a person is made, for example, where what you owe me on account of a purchase, a lease, or a partnership, is entered upon my book as having been paid to you.
(130) The record of a claim from a person to a person is made, for instance, when the amount that Titius owes me is charged to you on my book; that is to say as if Titius had substituted you for himself to me.
(131) The case of those claims which are designated as cash is different, as the obligation for them has reference to the thing itself, and not to a charge in writing; although they are not valid unless the money has been actually paid; for the payment of money makes the obligation a legal one. For which reason we very properly say that the entry of a claim as cash does not constitute an obligation, but is merely evidence that the obligation has been contracted.
(132) Hence, it is not proper to say that aliens are also bound by claims as cash, because their liability does not depend upon the entry of the claim, but upon the payment of the money; and this kind of an obligation belongs to the Law of Nations.
(133) A reasonable doubt has arisen as to whether aliens are bound by claims which have been entered on an account book; for an obligation of this kind is, to a certain extent, one contracted under the Civil Law, which was the opinion of Nerva. It was, however, held by Sabinus and Cassius that if the entry was made as from a thing to a person, aliens would also be liable; but if it was entered as from a person to a person, this would not be the case.
(134) Moreover, an obligation by writing is considered to be created by written evidences of debt, or promises to pay; that is to say, where anyone states in writing that he owes a debt, or will make payment in such a way, of course, that a stipulation is not entered into on this account. This kind of obligation is peculiar to aliens.
(135) Obligations are created by consent, in purchase and sale, leasing and hiring, partnership and agency.
(136) Moreover, we say that obligations are contracted by consent in these different ways, because no form of words or writing is required, but it is sufficient for the parties to the transaction to have consented. Therefore, agreements of this kind can be entered into by persons who are absent, as for instance, by letter or by messenger; while, on the other hand, verbal obligations cannot be created between absent persons.
(137) Likewise, in contracts of this description the parties are reciprocally liable, because each is liable to the other to perform what is proper and just; while, on the other hand, in the case of verbal obligations one party stipulates and the other promises; and in the entry of claims one party creates an obligation by doing so, and the other becomes liable.
(138) An absent person can be charged in writing with the disbursement of money although a verbal obligation cannot be contracted with one who is absent.
(139) Purchase and sale are contracted as soon as the price is agreed upon, although the price may not have been paid, or any earnest money given; for what is given by way of earnest money is only a proof of the conclusion of a contract of purchase and a sale.
(140) Moreover, the price must be certain; for, otherwise, if we agree that property shall be purchased for the amount at which Titius may estimate its value, Labeo denies that a transaction of this kind has any force or effect; and Cassius agrees with him. Ofilius holds that it is a purchase and sale, and Proculus adopts his opinion.
( 141 ) Moreover, the price must consist of money, for it is seriously questioned whether it can consist of any other property, as for instance, a slave, a robe, or a tract of land. Our preceptors think that a price can consist of other property, and hence is derived the common opinion that purchase and sale are contracted by exchange of articles, and that this kind of purchase and sale is of the highest antiquity, and in proof of their contention, they adduce the statement of the Greek poet Homer, who somewhere says:
"Here landed Achæan ships in search of wine. They purchased it with copper and with iron; With hides, with horned cattle, and with slaves."
Authorities belonging to the other school dissent from this, and think that the exchange of articles is one thing, and purchase and sale another, as where property is exchanged it cannot be determined what is sold and what is given by way of price; and, on the other hand, it is absurd to consider that both articles are sold, and at the same time given by way of price. Cælius Sabinus says that if you have some property for sale, for example land, and I receive it, and give you a slave by way of price, the land should be considered to have been sold, and the slave given by way of price, as the land is what is received.
 The Mohammedan law provides that the declaration and acceptance by vendor and purchaser is all that is requisite to conclude a sale, and render it binding. It is considered preferable to make the statement in the past tense, and that both the articles and the price should be at hand. The amount of the purchase-money must be certain, but where an exchange — which is to be held to be a sale — takes place, absolute certainty is not necessary. "Sell anything that is in exchange for a different kind, in whatever manner you please, and without regard to the quality." (The Hedaya XVI, 1.) The Ottoman Code defines a sale to be "the interchange of one thing with another." (The Medjille, Art. 105.)
Under the Mosaic Law, payment of the purchase-money caused the title to the object of the sale to at once vest in the purchaser. The rule of the Talmud changed this, however, and the property passed as soon as the vendor obtained possession, whether the price was, or was not paid. Actual transfer of possession was therefore indispensable. (Mishnah, Introduction to Chap. IV.) In England, the transfer of title to specific articles depends upon the agreement of the parties; where they are not specified, it does not pass until their identity has been determined. Where the sale is for cash, the purchaser has no right to the property till he tenders the entire amount. (Stephen, Commentaries on the Laws of England II, II, V, 3.) It is of the essence of the contract of sale in American law that the price must be certain, the article capable of identification, and that both parties must concur in the agreement. The sale must be complete for the right of ownership to pass without question. Delivery is not essential, as it was under the Roman system. (Parsons, The Law of Contracts, I, III, 4.) — ed.
(142) Moreover, leasing and hiring are governed by similar rules, for, unless the amount paid is certain, the contract of leasing and hiring is not considered to have been concluded.
(143) Hence, if the price is left to the judgment of another, for instance, at the amount that Titius may deem proper, the question arises whether the contract of leasing and hiring has been made. Therefore, if I give clothing to a fuller to be cleaned and taken care of, or to a tailor to be repaired, and the price was not stated at the time, but I was to pay the amount afterwards agreed upon between us, the question arises whether a contract for leasing and hiring has been entered into.
(144) Likewise, if I lend an article to you to be used, and I receive, in turn, another article to be used by myself, the question arises whether a contract of leasing and hiring has been made.
(145) Purchase and sale and leasing and hiring are considered to be so nearly related to one another that in certain cases the question arises whether the contract is one of purchase and sale, or one of leasing and hiring. For instance, if land is perpetually leased — which happens in the case of real property belonging to municipalities — under the condition that, as long as the rent is paid, neither the lessee nor his heir shall be deprived of the land; the better opinion is that this is a contract of leasing and hiring.
(146) Again, if I deliver gladiators to you under the condition that twenty denarii shall be paid to me for the exertions of every one who issues safe and sound from the arena; and a thousand denarii for every one who is killed or disabled; the question arises whether a contract of purchase and sale, or one of leasing and hiring has been made. The better opinion is that, in the case of those who come forth safe and sound, a contract of leasing and hiring was concluded; but so far as those who have been killed or disabled are concerned the contract is one of purchase and sale, for it is apparent that the contract depends upon circumstances taking place as it were under a condition; a contract of sale or hiring having been entered into with reference to each gladiator, for there is no doubt now that property can be sold or leased conditionally.
(147) Likewise, where it is agreed upon between a goldsmith and myself that he shall make me a number of rings of a certain weight and style out of his own gold, and shall receive, for example, two hundred denarii; the question arises whether a contract of purchase and sale, or one of leasing and hiring is made. Cassius says that the material is the object of purchase and sale, but that the labor depends upon a contract of leasing and hiring; still, the greater number of authorities are of the opinion that the contract is one of purchase and sale. But if I furnish him with my own gold, and the price of the work is agreed upon, it is settled that the contract is one of leasing and hiring.
(148) We are accustomed to form a partnership either of all the property of the partners, or with reference to one certain business, for example, the purchase and sale of slaves.
(149) An important discussion arose, however, as to whether a partnership could be formed in such a way that one partner would have a greater share in the profits and be liable for a smaller amount of the losses. Quintus Mucius held that this was contrary to the nature of a partnership, but Servius Sulpicius, whose opinion has prevailed, thought that a partnership could be formed in such a way that one of the partners should not be liable for any of the losses, and be entitled to a part of the profits, provided that his services were so valuable as to make it just for him to be admitted into the partnership under such an agreement. For it is settled that a partnership can be formed in such a way that one partner shall furnish all the money and that the other shall not furnish any, and the profits nevertheless be equally divided among them; for frequently the services of a person are worth as much as money.
(150) It is certain, however, that if no agreement concerning the division of profit and loss should be made among the parties, the benefit and the disadvantage shall be equally shared between them. If the share of each should be stated, so far as the profit is concerned, but omitted with reference to the loss, the loss must be shared in the same way as the profit.
(151) Moreover, a partnership continues to exist as long as the partners give their consent, and when any one of them renounces the partnership, it is dissolved. It is clear, however, if a person renounces a partnership in order that he alone may obtain some pecuniary advantage, for instance, if a partner of mine in the entire property should be left an heir by anyone, and should renounce the partnership in order that he alone may profit by the estate, he can be compelled to share this gain with his partners. If, however, he obtains any profit, without intending to do so, it shall belong to him alone, and I will only be entitled to whatever may be acquired by him after he renounces the partnership.
(152) A partnership is also dissolved by the death of a partner, for he who enters into one selects a certain person for his associate.
(153) It is also said that a partnership is dissolved by forfeiture of civil rights, for the reason that under the rule of the Civil Law loss of civil rights is considered as equivalent to death; but if the partners still consent to the continuance of the partnership a new one is considered to be formed.
(154) Likewise, a partnership is dissolved if the property of one of the partners is disposed of at either public or private sale. The kind of partnership, of which we are speaking, however, that is one which is formed by mere consent, belongs to the Law of Nations, and therefore continues to exist according to natural reason among all men.
(155) Agency is established whether we direct it to take place for our own benefit or for that of another; and hence whether I direct you to transact my business or that of another, the obligation of mandate is contracted, so that both of us will reciprocally be liable, for whatever you must do for me, or I must do for you, in good faith.
(156) If, however, I direct you to perform some act for your own benefit, the mandate will be to no purpose, for what you are about to do for your own advantage should depend on your own judgment, and not be done on account of my mandate. Therefore, if you have some idle money at home, and I advise you to lend it at interest, and you lend it to a party from whom you cannot collect it, you will not be entitled to an action of mandate against me. Again, if I advise you to purchase some article, even though it will not be to your advantage to do so, I will still not be liable to you in an action of mandate.
These rules have been so well established that the question arose whether a party is liable in an action of mandate who advised you to lend money to Titius. Servius denied that liability is incurred, and thought that an obligation could not arise in this instance, any more than in one where a person is generally advised to lend his money at interest. We, however, adopt the contrary opinion of Sabinus, for the reason, that you would not have lent money to Titius if you had not been advised to do so.
(157) It is evident that, where anyone directs an act to be done which is contrary to good morals, an obligation will not be contracted; for instance, if I direct you to commit a theft, or some injury against Titius.
(158) In like manner if I should be directed to perform some act after my death the mandate is void, for the reason that it has been generally decided that an obligation cannot begin to take place with an heir.
(159) Where a mandate was properly given and while the matter still remained unchanged was revoked, it is annulled.
(160) Again, if before a mandate was begun to be executed, the death of either of the parties should take place, that is the death of him who gave the mandate, or of him who received it, the mandate is annulled. However, for the sake of convenience, the rule has been adopted that if the party who gave me the mandate should be dead, and I, being ignorant of his death, should execute the mandate, an action of mandate can be brought against me; otherwise a just and natural want of information would occasion me loss. Similarly to this, it has been decided by the greater number of authorities that if my debtor should, through ignorance, pay my steward who has been manumitted, he will be released from liability; although, otherwise, he could not be released under the strict rule of law, because he paid another than the one whom he should have paid.
(161) If the person to whom I gave a proper mandate exceeds his authority, I will be entitled to an action of mandate against him for the amount of my interest in having the mandate executed, provided he was able to execute it; but he cannot bring an action against me. Hence, for example, if I should direct you to purchase a tract of land for me for a hundred thousand sesterces, and you purchase it for a hundred and fifty thousand, you cannot bring an action of mandate against me, even though you are willing to convey the land to me for the price for which I directed you to purchase it; and this opinion was held by Sabinus and Cassius. If, however, you should purchase it for a smaller sum, you will certainly be entitled to an action against me; for anyone who directs land to be bought for a hundred thousand sesterces is understood also to direct that it be bought for less if this can be done.
(162) In conclusion, it must be remembered that when I give any material to be manufactured gratuitously, in which case, if I had fixed a price for the work performed, a contract for leasing and hiring would be made, an action of mandate will lie; for instance, when I give clothing to a fuller to be cleaned or pressed, or to a tailor to be repaired.
(163) Having explained the different kinds of obligations which arise from contracts, we should observe that obligations can not only be acquired by us by what we do ourselves, but also through those persons who are subject to our authority, or are in our hand, or under our control by mancipation.
(164) Obligations are also acquired by us through freemen, and the slaves of others of whom we have possession in good faith; but only in two instances, that is, where they acquire anything by their own labor, or by means of our property.
(165) An obligation is also acquired by us in the two cases above mentioned through a slave in whom we have the usufruct.
(166) Anyone, however, who has the mere quiritarian right in a slave, although he may be his owner, is still understood to have less right to what he may acquire than an usufructuary, or a bona fide possessor, for it is established that, under no circumstances, can the slave acquire anything for himself; and to such an extent is this the rule, that even if the slave should expressly stipulate for something to be given to him, or should accept something in mancipation, in his name, some authorities hold that nothing is acquired for him.
(167) It is certain that a slave owned in common can acquire for his masters in proportion to their respective shares, except where by stipulating, or by accepting in mancipation expressly for one of them, he acquires for him alone. For example, if he should stipulate as follows: "Do you solemnly agree to pay to Titius, my master?" Or when he received by mancipation in the following manner: "I declare that this property belongs to my master Lucius Titius by quiritarian right, and let it be purchased for him with this piece of bronze and this bronze balance."
(167a) The question arises whether the addition of the name of one the masters, or the order of one of them, produces the same effect. Our preceptors hold that he alone will acquire who gave the order, just as if the slave had expressly stipulated, or had accepted in mancipation for the single master who was expressly mentioned. The authorities of the other school think that the acquisition will be made by all, as if no order had been given.
(168) An obligation is extinguished principally by the payment of what was due. Wherefore, the question arises that if anyone should pay something for another with the consent of his creditor, whether he would be released from liability by operation of law, and this opinion was held by our preceptors; or whether he remains bound by operation of law, but should defend himself by an exception on the ground of fraud against his creditor who brings the suit, which opinion was adopted by the authorities of the other school.
(169) An obligation is also extinguished by means of a release. A release is, as it were, a fictitious payment, for if I owe you something under a verbal obligation and you are willing to discharge me from liability, this can be done by permitting me to question you as follows: "Have you received what I promised you?" And you reply, "I have received it."
(170) In this manner, as we have already stated, only those obligations are discharged which have been contracted verbally, but no others; for it seems to be consistent that an obligation verbally contracted should be released by other words. Anything which is due for some other reason can be changed into a stipulation, and then be discharged by a release.
(171) But although we have stated that a release takes place by a fictitious payment, still a woman cannot make one without the authority of her guardian; while, on the other hand, payment can be made to her without her guardian's authority.
(172) Likewise, a portion of what is due may be legally paid; but it is doubtful whether it can be partially released when paid.
( 173 ) There is another kind of imaginary payment which is effected by bronze and balance; but this is used only in certain cases; as, for instance, where something is due on the ground that there has been a transaction by bronze and balance, or for the reason that something is due on account of a judgment.
(174) This transaction takes place as follows: Not less than five witnesses and a balance-holder must be present, and then the party who is to be released must say, "For the reason that I have been condemned to pay you so many thousand sesterces, I pay and discharge this amount by means of this piece of bronze and this bronze balance; and this is the first and last pound of bronze that I pay you in accordance with public law." Then he strikes the balance with the pound of bronze, and gives it to the party by whom he is released as if by payment.
(175) In the same way a legatee releases an heir from liability for a legacy which was left him by condemnation, except that, as the party against whom judgment was rendered mentions that he has been condemned; so the heir states that he has been charged by the terms of the will to pay the legacy. An heir, however, can only be released from liability in this way where the property constituting the legacy can be weighed or counted, and where the amount is certain. Some authorities hold that the same rule applies to articles which can be measured.
(176) Moreover, an obligation is extinguished by novation, for instance, if I stipulate that what you owe me shall be paid by Titius; for a new obligation arises by the intervention of a new person, and the
 "Novatio est veteris obligationis in novam translatio et transfusio." — ed.
first obligation is annulled by being changed into the second one. To such an extent is this the case, that sometimes, although the subsequent stipulation may be void, still the first one is disposed of by novation; for example, if you owe me something and I stipulate that it shall be paid by Titius after his death, or by a woman, or a ward, without the authority of his or her guardian; in which case I lose my claim, for the first debtor is released from liability, and the subsequent obligation is void. The same rule of law does not apply if I stipulate with a slave, for then the former debtor remains liable, just as if I had not afterwards stipulated with anyone else.
(177) When, however, I subsequently stipulate with the same person, novation only takes place where something new is contained in the subsequent stipulation, that is to say, if some condition, date, or sponsor should be either added or omitted.
(178) What we have stated with reference to a sponsor has, however, not been absolutely settled; for it has been held by authorities of the other school that neither the addition or omission of a sponsor has the effect of causing novation.
(179) Moreover, what we stated with reference to the introduction of a condition effecting novation, must be understood to mean that a novation would take place if the condition should be fulfilled; but if it should fail, the former obligation will continue to be operative. But let us see, whether a party who brings an action in a case of this kind can be barred on the ground of fraud, or informal agreement; for it seems to have been agreed upon by the parties that suit could only be brought for the recovery of the property if the condition of the subsequent stipulation should be fulfilled. Nevertheless, Servius Sulpicius thought that a novation took place immediately, while the condition was in suspense, and if it should fail that there would be no cause of action on either ground, and in this way that the claim would be extinguished. In consequence of this, he gave it as his opinion that if anyone should stipulate with a slave for a debt which Lucius Titius owed to him, a novation would be created, and the claim would be lost; because an action could not be brought against the slave. In both these instances, however, we make use of another rule; and novation is not produced under these circumstances any more than if I should stipulate for what you owe me with an alien, who is not allowed to participate as a sponsor, by using the expression, "Do you solemnly agree?"
(180) An obligation is also extinguished by a joinder of issue, provided the action brought is authorized by law; for then the original obligation is dissolved, and the defendant begins to be held liable by the joinder of issue. But if judgment is rendered against him, the obligation produced by the joinder of issue is disposed of, and he becomes liable under the judgment. This is the reason why it was stated by the ancient authorities that a debtor is compelled to make payment before issue has been joined; for, after this has been done, he will be liable if judgment should be rendered against him, and if he is condemned, he will be compelled to satisfy the judgment.
(181) Hence, if I bring a legally authorized action for the collection of a debt, I cannot afterwards, under the strict rule of law, sue a second time, as the statement that the defendant is required to pay me something will be without effect; for the reason that by joinder of issue he ceases to be obliged to make payment. The case is different if in the first place I brought an action derived from the authority of a magistrate; for then the obligation will still continue to exist, and, therefore, by the strict rule of law, I can bring another action; but I can be barred by an exception grounded on a previous judgment, or on a former joinder of issue. We shall explain in a subsequent Commentary what actions are authorized by law, and what are derived from the authority of a magistrate.
(182) Let us now pass to obligations which arise from the commission of crime; for instance, where anyone perpetrates a theft or robbery, or damages property, or commits any injury; and the obligation growing out of all these matters is of one kind, while obligations arising from contracts are divided into four classes, as we already have explained.
(183) Servius Sulpicius and Masurius Sabinus state that there are four kinds of theft, manifest, non-manifest, the receiving of stolen property, and the delivery of stolen property to another. Labeo says that there are two, namely, manifest and non-manifest theft, for the receiving of stolen goods and their delivery to another rather give ground to actions connected with theft than are different kinds of theft, and this seems to be the more correct opinion, as will appear hereafter.
(184) Some authorities hold that manifest theft is "committed when the culprit is taken in the act; others, however, go further and say that it occurs when he is taken in the place where the theft was perpetrated, for instance, where olives are stolen from an olive orchard, or grapes from a vineyard, while the thief is in the olive orchard or the vineyard; or, if the theft was committed in a house, as long as the thief remains therein. Others go still further, and hold that manifest theft is committed until the thief has carried the stolen property to the place where he intends to leave it.
Others go even further, and say that theft was committed as long as the thief holds the property. This last view has not been adopted, and the opinion of those who hold that if the thief is taken before he has conveyed the stolen property to the place where he intends to leave it, it is manifest theft, should not be accepted; for the reason that great uncertainty may arise whether the time for his detection should be limited to one day or to several. This doubt arises because thieves often intend to transport stolen property to other cities or into other provinces. Therefore, the first and second opinions have been generally approved, and the greater number of authorities accept the second one.
(185) From what we have already said it will be understood what non-manifest theft is, for what does not belong to this class belongs to the other.
(186) The receiving of stolen property takes place when it is sought for and found in the possession of anyone, in the presence of witnesses; for even though the party may not be the thief, a special action can be brought against him which is called a suit for the recovery of stolen property.
(187) Delivery of stolen goods is said to take place when the stolen property is offered to you by anyone in order that it may be found in your possession, and is given to you with the intention that it should be discovered on your premises rather than upon those of him who gave it to you. If the property should be found on your premises an action will lie in your favor against the party who gave it to you, even though he may not be the thief, which is called an action on account of the delivery of stolen property.
(188) An action for preventing the search for stolen goods may be brought against him who hinders anyone from searching for stolen property on his premises.
(189) The penalty for manifest theft was capital under the Law of the Twelve Tables, for a freeman, after having been scourged, was delivered up to the party against whom he committed the theft; and whether he became his slave by this proceeding, or was placed in the position of one against whom judgment had been rendered for a debt, was a matter of dispute among the ancient lawyers. The punishment of scourging was also inflicted upon a slave, but the harshness of the penalty was subsequently disapproved of, and in the case of a slave, as well as of that of a freeman, an action for fourfold damages was established by the Edict of the Prætor.
(190) The penalty for non-manifest theft was double damages by the Law of the Twelve Tables, and this the Prætor has preserved.
(191) The penalty for the concealment or delivery of stolen goods imposed by the Law of the Twelve Tables was triple damages, and this, in like manner, has been preserved by the Prætor.
(192) The action for preventing search, introduced by the Edict of the Prætor, requires the payment of fourfold damages. The ancient law, however, did not impose any penalty for this offence; but only prescribed that whoever desired to make search should do so naked, wearing a girdle, and carrying a dish; and if he found anything, it ordered that this should be considered manifest theft.
(193) The nature of the girdle was a matter of controversy, but the better opinion is that it was some kind of cloth by which the private parts were concealed. This entire rule is ridiculous, for anyone who would prevent a person from searching when clothed, would also do so if he were naked; and especially because, if anything were found under such circumstances he would be subjected to a more severe penalty. Then, whether he was ordered to have a dish in his hands for the reason that they being occupied, he might bring nothing secretly into the house; or whether if he found anything, he might place it in the dish; neither of these provisions would have any effect if the property sought for was of such a size or description that it could neither be brought into the house or be placed in the dish. There is no doubt whatever that the requirements of the law were satisfied, no matter what material the dish consisted of.
(194) For the reason that the law, in a case of this kind, declared such an offence to be manifest theft, there are some writers who hold that manifest theft may be either that defined by law, or that established by nature; that defined by law being what we are discussing, and that established by nature being what we have previously explained. The better opinion, however, is that manifest theft should be understood to be that which has been actually committed, for the law cannot cause a non-manifest thief to become a manifest one, any more than it can cause one who is not a thief at all, to become a thief, or anyone who is not an adulterer, or a homicide, to become an adulterer, or a homicide. The law, however, can cause anyone to be liable to a penalty, just as if he had committed theft, adultery, or homicide, even though he had not been guilty of any of these crimes.
(195) Again, theft is committed not only when a person removes the property of another with the intention of appropriating it, but, generally speaking, when anyone handles the property of another without the consent of the owner.
(196) Therefore, if anyone makes use of property deposited with him for safe keeping, he commits theft, and if having received an article for the purpose of using it, he employs it for some other purpose, he becomes liable for theft; for example, if anyone being about to invite friends to supper borrows silver plate and takes it away with him to a distance; or if anyone borrows a horse to carry him to a certain place, and takes it much further away, or, as the ancient lawyers stated by way of example, if he takes the horse into battle.
(197) It was decided, however, that those who use property for another purpose than that for which they received it, commit theft, provided they know that they do this contrary to the will of the owner, and that he, if he knew of it, would not allow it; but if they believe that he would permit them to do so, this should not be considered theft. And the distinction is perfectly proper, as theft is not committed without unlawful intent.
(198) If anyone thinks that he is handling an article contrary to the will of the owner, but the owner is in fact willing for him to do so this is said not to be theft; and hence the question arose and was discussed, whether if Titius should solicit my slave to steal certain property belonging to me, and deliver it to him; and the slave should notify me, and I, desiring to detect Titius in the crime, should permit my slave to take the property to him, whether Titius would be liable to me in the action of theft, or in the one for corrupting a slave, or whether he would be liable in neither. The answer is that he would be liable in neither action, for he would not be liable in the action of theft, for the reason that he did not handle the property contrary to my will; and he would not be liable in the action for corrupting the slave, for the reason that the slave was not rendered any worse.
(199) Sometimes, however, a theft of persons who are free is committed, for example where anyone of my children who is under my control, or a wife in my hand, or a judgment debtor, or a gladiator whom I have hired is secretly taken away.
(200) Anyone may even commit a theft of his own property, as for instance, where a debtor secretly removes an article which he has pledged to his creditor, or where I surreptitiously abstract my own property from a bona fide possessor of the same; and hence it has been decided that he who conceals the fact that a slave who is held by a bona fide possessor has returned to him, commits theft.
(201) Again, on the other hand, it is sometimes permitted to seize and acquire by usucaption property which belongs to another; and in such cases theft is not held to have been committed; as for instance, where property belonging to an estate of which the heir has not taken possession is seized, unless there is a necessary heir; for when there is a necessary heir, it has been decided that usucaption cannot take place in favor of a party acting as the heir. Likewise, in accordance with what we have stated in a former Commentary, a debtor who has transferred property to his creditor by mancipation or surrendered it in court on account of a trust, can take possession of the property, and acquire it by usucaption, without being guilty of theft.
(202) Sometimes a person is liable for theft who did not himself commit the offence; as is the case with one by whose aid and advice a theft has been perpetrated. To this class belongs a person who knocks money out of your hand in order that another may pick it up; or places himself in your way in order that another may seize it; or puts your sheep or oxen to flight in order that another may catch them, as in the example given by the ancient authorities, where a person put a herd of cattle to flight by means of a red cloth. If, however, this were done merely for the sake of amusement, and not for the purpose of committing a theft, we will examine whether an equitable action should be granted, as by the Lex Aquilia, which was enacted with reference to damages, even negligence may be punished.
(203) The action of theft will lie in favor of the party whose interest it is that the property shall be preserved, even though he may not be the owner; and hence it will not lie in favor of the owner, unless he is interested in the property not being destroyed.
(204) Therefore, it is settled that when an article which was pledged has been stolen, the creditor can bring the action of theft, and to such an extent is this true, that even if the owner himself, that is to say the debtor, steals the property, the action of theft can still be brought by the creditor.
(205) Moreover, if a fuller receives clothes to be cleaned or pressed, or a tailor receives them to be repaired, for a certain compensation, and loses them by theft, he, and not the owner, will be entitled to bring the action; because the owner is not interested in their not being lost; as he can recover the value of the clothing in the action of leasing against the fuller, or tailor, provided the said fuller or tailor has sufficient property to make good the loss; for if he should not be solvent, then, for the reason that the owner is unable to recover what belongs to him, he can himself bring the action of theft, because, in this case, it is to his interest that the property should be saved.
(206) What we have stated with reference to a fuller and a tailor, we can likewise apply to one to whom we lend an article for use, for, as the former, on account of the compensation they received, are liable for the safe keeping of the property, the latter in consideration of the benefit he derives from using the article, also becomes responsible for its safe keeping.
(207) But as he with whom property is deposited for safe keeping is only responsible where he has committed fraud, in like manner, if the property should be stolen from him, for the reason that he is not required to make restitution by the action of deposit he is not, on that account, interested in its being preserved; and hence he cannot bring the action of theft, but this action will lie in favor of the owner.
(208) In conclusion, it should be noted, that it is a question whether a child under the age of puberty becomes guilty of theft by removing property belonging to another. It is held by the greater number of authorities that, as a theft consists in the intention, a child under the age of puberty is not liable for this offence, unless he is very near puberty, and for this reason can understand that he is committing a crime.
(209) Anyone who seizes the property of another by violence, is also liable for theft; for who handles the property of another more against the consent of the owner than he who seizes it by violence? Therefore, it has been very properly said that he is an impudent thief. The Prætor, however, introduced a peculiar action to be brought in the case of a crime of this kind, which is called the action for robbery with violence; and it may be brought within a year for quadruple damages, and, after a year has elapsed, for simple damages. This action will lie even if the person took only one article, even of the smallest value, with violence.
(210) The action for unlawful damage was established by the Lex Aquilia in the first chapter of which it is provided that if anyone unlawfully kills a male or female slave, or any quadruped included in the cattle of another, he shall be required to pay to the owner of the same a sum equal to the highest value of the property during that year.
(211) He is understood to have killed unlawfully who killed with malice (dolus) or negligence (culpa). There is no other law that considers damage without fault (iniuria). Consequently he who damages without negligence and or malice in a certain case remains unpunished. (Iniuria autem occidere intellegitur, cuius dolo aut culpa id acciderit, nec ulla alia lege damnum, quod sine iniuria datur, reprehenditur; itaque inpunitus est, qui sine culpa et dolo malo casu quodam damnum committit).
(212) It is not only the body of the slave or of the animal which is appraised in the action brought under this law, but if by the death of the slave the owner sustained a greater loss than the value of the said slave amounted to; as for instance, if my slave was appointed heir by someone, and should be killed before he declared his acceptance of the estate by my order, not only his own value is taken into consideration, but also that of the estate which was lost. Likewise, if one of two twins, or one of a company of actors or musicians should be killed, an appraisement is not only made of the one who was killed, but also a computation of the depreciated value of those who remain. The same rule of law applies where one of a pair of mules, or one of a team of four chariot-horses is killed.
(213) Moreover, the person whose slave was killed has the choice either of prosecuting for a capital crime the person who killed him, or of bringing an action for damages against him under this law.
(214) The clause inserted in this law: "The greatest sum which the property was worth during the year," has the following effect. If the slave who was killed was crippled, or blind of an eye, but had been sound within a year, the estimate shall be made not of his value when he was killed, but of his greatest value during that year; the result of which is that sometimes the party will recover a larger amount than that of the loss which he sustained.
(215) By the provisions of the second chapter an action is granted for the amount of the claim against a joint stipulator who fraudulently released the payment of money due to the stipulator.
(216) It is clear that in this section of the law an action was introduced for the recovery of damages, although this provision was not necessary, as the action of mandate would have been sufficient for that purpose; except that under this law a suit for double damages can be brought against the defendant, if he makes a contest.
(217) In the third chapter, provision is made for all other kinds of damage. Therefore, if anyone wounds a slave, or a quadruped included under the head of cattle; or even one which is not so included, as for instance, a dog; or wounds or kills a wild beast, for example, a bear, or a lion; an action is authorized by this chapter. With reference to other animals also, as well as to all property which is destitute of life, damages can be recovered for injury by this section of the law. An action is also provided therein, where anything has been burned, dashed to pieces, or broken, although the single term "broken" is sufficient in all these cases, for it is understood to mean spoiled in any way. Therefore, where anything is burned, dashed to pieces, or broken, and also cut, crushed, spilled, or injured to any extent, or destroyed or deteriorated, it is comprehended in this term.
(218) In this chapter, however, the person who committed the damage is responsible, not only for the value of the property within the past year, but also for what it was worth within the thirty preceding days and the words "highest value" are not added. Therefore, certain authorities hold that it should be in the discretion of the judge to determine whether the estimate of the property ought to be made with reference to its greatest value, or to any inferior value which it may have had within the last thirty days; but it was the opinion of Sabinus that the law should be construed just as if the word "highest" had been inserted; and that the legislator was satisfied because he had used the expression in the first chapter of the law.
(219) Moreover, it was decided that an action will only lie under this law where the party caused the damage by means of his own body, and hence where damage has resulted in some other way, equitable actions should be granted; for instance, where anyone shuts up a slave or a head of cattle belonging to another, and kills him or it by starvation; or where a beast of burden is driven so hard that it perishes; and also where anyone persuades the slave of another to climb a tree, or descend into a well, and, in doing so, he falls, and is either killed or sustains some bodily injury. If, however, anyone pushes a slave off of a bridge or bank into a stream, and he is drowned, the party who pushed him may readily be understood to have caused the damage by means of his body.
(220) Injury is committed, for example, not only where anyone strikes another with his fist, or with a stick or a whip, but where he reviles him in a loud voice, or where well knowing, that nothing is due to himself, he seizes and advertises for sale the property of another as his debtor; or where he writes prose or poetry defaming another; or persistently follows the mother of a family or a boy wearing the prætexta; and finally in many other ways.
(221) We consider that injury may be suffered not only by ourselves, but also in the persons of our children who are subject to our authority, as well as by our wives, although they may not be in our hand. Hence if you commit an outrage against my daughter, who is married to Titius, an action for injury can (not) only be brought against you in her name, but also in that of mine, as well as in that of Titius.
(222) It is understood that injury cannot be committed against a slave individually, but his master may be injured through him; not, however, in the same ways in which we are considered to suffer injury through our children or wives, but where some peculiarly atrocious act is committed, which clearly appears to have been perpetrated to insult the owner, for example, if anyone scourges a slave belonging to another; and a rule has been established to meet this case. If, however, anyone reviles a slave, or strikes him with his fist, no rule has been prescribed in this instance, and permission to bring an action would not readily be given.
(223) The penalties for injuries provided by the Law of the Twelve Tables were as follows: "For a broken limb, retaliation; for a bone broken, or crushed, three hundred asses, if the party was a freeman, but if he was a slave a hundred and fifty; and for all other injuries, twenty-five asses." These pecuniary penalties seemed to be sufficient compensation in those times of great indigence.
(224) At present, however, we make use of another rule; for we are permitted by the Prætor to estimate the damages ourselves, and the judge may either condemn the defendant for the amount of which we have estimated it, or for a smaller sum, as he may think proper. The Prætor usually fixes the amount of damages to be paid for an atrocious injury, and when he has once decided in what sum the defendant must give security to appear, he establishes this sum as the limit, and although the judge can render a decree for a smaller amount, still, as a rule, on account of his respect for the authority of the Prætor, he does not venture to do so.
(225) Again, an injury is rendered atrocious either by the act, as when anyone is wounded, beaten with rods, or severely whipped; or by the place, as for instance, where the injury is committed either in the theatre, or in the forum; or on account of the person, for example, where a magistrate is insulted, or an injury is inflicted upon a senator by a person of inferior rank.
(1) It remains for us to speak of actions. And if we inquire how many kinds of actions there are, the better opinion seems to be that there are but two, real and personal; for those who say that there are four, and include such as arise from solemn agreements, do not perceive that some kinds of actions are subdivided into others.
Superest, ut de actionibus loquamur. Et si quaeramus, quot genera actionum sint, uerius uidetur duo esse, in rem et in personam. Nam qui IIII esse dixerunt ex sponsionum generibus, non animaduerterunt quasdam species actionum inter genera se rettulisse.
(2) A personal action is one which we bring against anyone who is liable to us under a contract, or on account of a fault; that is, that (what) we claim is that he is bound to give something, to do something, or to perform some service.
In personam actio est, qua agimus, quotiens litigamus cum aliquo, qui nobis uel ex contractu uel ex delicto obligatus est, id est, cum intendimus 'DARE FACERE PRAESTARE' oportere.
(3) A real action is one in which we either claim some corporeal property to be ours, or that we are entitled to some particular right in the property, for instance, the right of use and enjoyment; or the right to walk or drive through the land of another; or to conduct water from his land; or to raise the height of a building, or to have the view unobstructed; or when a negative action is brought by the adverse party.
In rem actio est, cum aut corporalem rem intendimus nostram esse aut ius aliquod nobis conpetere, uelut utendi aut utendi fruendi, eundi, agendi aquamue ducendi uel altius tollendi prospiciendiue, aut cum actio ex diuerso aduersario est negatiua.
(4) Therefore, these actions being distinct, it is certain that we cannot make use of the following form to recover our property from another, namely: "If it appears that he should be required to transfer it." For what is ours cannot be transferred to us, as it is understood that what is given to us is given for the purpose that it may become ours, and property which already belongs to us cannot become ours any more than it now is. Through hatred of thieves, and for the purpose of making them liable to a greater number of actions, the rule has been adopted that, in addition to the penalty of double and quadruple the value of the property obtained, thieves are also liable to the form: "If it appears that the defendant should be required to transfer the property"; even though the action by which we seek to recover what belongs to us may also be brought against him.
(5) Moreover, real actions are styled suits for the recovery of property, but personal actions, by which we assert that something must be given, or some act be performed, are called condictiones.
(6) Again, we sometimes bring suit merely to recover property; sometimes only to recover the penalty; and sometimes to recover both.
(7) For example, we sue merely to recover property in actions brought under a contract.
(8) We bring suit only to recover a penalty, for example, in the actions of theft and of injury; and, according to the opinion of certain authorities, in an action for goods taken by violence; for we are entitled to recover the property by either a real or a personal action.
(9) Moreover, we bring suit to recover both the property and a penalty; for instance, in those cases in which we bring our action for double damages against a party who defends the case; and this happens in an action to recover a judgment debt; or expenses paid for a principal; or damages for injury under the Lex Aquilia; or to recover legacies; or a certain sum which has been bequeathed by condemnation.
(10) Moreover, there are some actions which refer to the ancient form of judicial procedure upon which they are based; and others become operative by their own force and power. In order that this may be clear, we must first treat of those which are based upon ancient judicial procedure.
(11) These actions which the ancients employed were so designated, either for the reason that they were provided by the law — although at that time the edicts of the Prætor, by means of which many new actions were introduced, had not come into use — or, because they followed the words of the law, and therefore, like the law itself, were observed without any alteration. Hence, it was decided that, a person who brought an action against another for cutting his vines, and in the pleadings called them "vines," should lose his case, as he ought to have called them "trees," because the Law of the Twelve Tables, under which the action for cutting vines was brought, speaks in general terms of the cutting of trees.
(12) Actions were brought in five ways under the ancient form of judicial procedure, and were called Sacramentum, Judicis Postulatio, Condictio, Manus Injectio, Pignoris Capio.
(13) The action Sacramentum was a general one, for where no provision was made by the law in any other way for bringing suit with
 The legis actiones were the earliest forms of judicial procedure known to the Roman law for the collection of claims and the enforcement of obligations. As will be observed, they are of a very primitive character, and it is surprising, when taking into consideration the wonderful progress of the Roman people in intelligence and knowledge, that these antiquated and cumbersome methods survived for so long a period. They were based upon the Twelve Tables; upon customs which, by continuous usage, had acquired full legal authority; upon the decision of the various popular tribunals; and upon statutes which were passed from time to time either for the purpose of explaining or confirming obscure or disputed points of ancient jurisprudence, that is, what was ordinarily designated the Civil Law. The extreme nicety with which the established forms were required to be observed, and which, if neglected in the slightest particular, caused the litigant to irretrievably lose his case, forcibly recalls the technical accuracy demanded by the old system of Common Law pleading that, for generations, exercised to the utmost the legal ingenuity and skill of the English practitioner. The equitable jurisdiction of the Prætor was expressly devised to remedy the abuses and relieve the distress to which rigid adherence to the rules of the legis actiones constantly gave rise. This innovation was deplored by the eminent jurisconsults of Rome, who regarded any change introduced into the existing judicial procedure as unnecessary, dangerous, and revolutionary; an example which was subsequently followed to the letter by the lawyers of England upon the establishment of the Court of Chancery, of which the Prætorian Tribunal was the prototype.
The Sacramentum, so called from the wager or forfeit, which involved the deposit by the parties in the hands of the Pontiffs, for the benefit of the sacra publica,
reference to certain property, it was done by means of an oath. This proceeding was attended with danger to the party swearing falsely; just as, at present, is the case in the action for the recovery of money lent, on account of the solemn agreement by which the defendant assumes a risk if he rashly denies the claim, and because of the counter engagement by which the plaintiff becomes liable if he did not recover the debt. Hence, the party who was defeated was obliged to pay the amount of money deposited by way of penalty, which was placed in the Public Treasury; and, for this reason, sureties were given to the Prætor; instead of, as at present, the amount deposited as penalty being for the benefit of the party who gained the case.
(14) The amount deposited by way of penalty in this proceeding was either five hundred, or fifty asses; five hundred were deposited when the property in question was worth a thousand or more asses, and fifty when it was worth less than a thousand; for this was provided by the Law of the Twelve Tables. When, however, the controversy was with reference to the freedom of a slave, although he may have been extremely valuable, still the amount deposited by way of penalty was only fifty asses. This was also provided by the Twelve Tables in favor of freedom, in order that the protector of the slave might not be unduly oppressed . . . . .
(15) Moreover, when all these actions were brought to enforce an obligation, the parties, having furnished sureties, agreed to again appear for the appointment of a judge; and having returned after thirty days, the judge was appointed in accordance with the Lex Pinaria; while before this law was enacted he was appointed immediately. We understand from what has been already stated, that if the property in dispute was worth less than a thousand asses, the amount deposited
and by way of security, of a quantity of bronze or copper equal in value to double that of the property in controversy, half of which was lost by the one who was defeated, was originally the only method of civil procedure among the Romans.
Little of the Judicis Postulatio is known to us but the name, which has reference to an application to the magistrate to appoint a judge or arbiter to hear the case, after joinder of issue; and therefore, that it made provision for arbitration.
The Condictio was strictly a personal action for the recovery of a certain sum of money which had either been loaned, or paid by mistake. It was introduced as a convenient substitute for the preceding and more complex forms. The plaintiff, by appearing before the Prætor, could force the defendant to agree (condicere) to have a judge appointed within thirty days.
The Manus Injectio enabled a surety who had paid the debt, to seize and imprison the principal until the latter had fully reimbursed him, if six months had elapsed after payment.
The Pignoris Capio, as stated in the text, lay for the enforcement of obligations to soldiers for subsistence and pay, as well as to enable magistrates to compel parties against whom judgments had been rendered to comply with them. In effect, it was almost identical with levying a distress under the English law. The last two of the legis actiones, rather belong to the category of legal processes or forms of execution, than to lawsuits, in the strict sense of the term.
We are indebted to Gaius for the most complete account of these curious old methods of judicial procedure and which, while far from satisfactory, is still more detailed than those of other Roman writers on jurisprudence, who, for the most part, only vaguely refer to the subject. The legis actiones were nominally abolished B. C. 167. — ed.
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was usually only fifty, and not five hundred. Then, after the judge had been appointed, the parties gave notice to one another to appear before him on the third day following. Finally, when they came into court, and before the case was argued, it was customary to state it briefly, and in a concise manner; which was called the presentation of the case, which was, as it were, a mere summary of the same.
(16) When a real action was instituted, the movable property, and that which could move itself and be brought into court, was demanded as follows. The party making the claim, held a staff, and then grasping the object in dispute, as for instance, a slave, said: "I declare this slave to belong to me, on account of his condition, in accordance with quiritarian right. See! in accordance with what I have stated, I have placed my staff upon him"; and, at the same time, he laid the staff upon the slave. His opponent then said and did the same thing, and when both of them had asserted their claims, the Prætor said: "Both of you release your hold upon the slave"; and they did so. The one who first asserted his claim, then interrogated the other as follows: "I ask whether you will state on what ground you make this claim?" and he replied, "I asserted my right to him by placing my staff upon him." The first claimant than said, "As you have wrongfully claimed him I call upon you to deposit five hundred asses by way of forfeit," and his opponent then said, "I call upon you to do the same"; (that is if the property was worth more than a thousand asses five hundred were deposited but if it is worth less only fifty was the amount of the forfeiture).
After this the same proceedings took place as in a personal action, and then the Prætor made a temporary disposition of the property in favor of one of the parties, that is to say, he gave him possession of it for the time, and ordered him to furnish sureties to his adversary for the expenses of the suit as well as the mesne profits of the property which was the object of the action. The Prætor, moreover, took sureties for the forfeits, from both parties, for the benefit of the Public Treasury. The staff was employed instead of a spear, as an emblem of lawful ownership, for whatever was taken from an enemy a man considered to be absolutely his own; wherefore in cases tried before the Centumviri, a spear was placed in front of the tribunal.
(17) If the property was of such a nature that it could not be brought or led into court without inconvenience, as for instance, if it consisted of a column, or a drove of cattle of any kind, a certain portion was brought in, and then the claim was made for that portion just as if all of it was present. Therefore, if the property in dispute consisted of a flock of sheep or goats, a single sheep or goat was brought into court, or even a single tuft of wool was produced; or if it consisted of a ship, or a column, a small part was broken off; and, in like manner, if a tract of land or a building, or an estate was the subject of controversy, a small part was brought in, and a claim was made for it in the same manner as if all the property was there; as, for instance, a clod was taken from the land, or a tile was taken from the building;
and if the dispute was with reference to an estate, in like manner the property itself, or some part of it was produced in court . . . .
(17a) . . . . For they observed the same time and the same manner in appointing a judge, and agreed upon a day when they would be ready to receive the judge, for to "agree upon" meant originally "to notify".
(18) Therefore, this action was very properly styled a notification, for the plaintiff was accustomed to notify his adversary to appear before the court on the thirtieth day to receive a judge. At present, however, we do not properly call a suit of this kind by which we institute proceedings to have property conveyed to us a personal action, for now no notice is given for this purpose.
(19) This form of judicial procedure was established by the Lex Silia and the Lex Calpurnia; by the Lex Silia, to receive a certain sum of money, and by the Lex Calpurnia, to recover any other property which was certain.
(20) It has frequently been asked why this action was required when we could either by Sacramentum or Judicis Postulatio, obtain the transfer of property to which we are entitled.
(21) The proceeding of Manus Injectio was employed in certain cases, as for instance, by the Law of the Twelve Tables, when judgment had been obtained against a debtor. This was as follows: the party who brought the suit said, "As judgment has been rendered against you, or you have been condemned to pay me ten thousand sesterces, and you have not paid them, for this reason I lay my hands upon you, as being indebted to me under the judgment for ten thousand sesterces"; and at the same time he seized him by some part of the body, and the debtor was not permitted to resist, or to protect himself by law, but he appointed a defender, who conducted the case for him, or, if he did not do so, he was taken to his house by the plaintiff and placed in chains.
(22) Subsequently, certain laws in some other cases, permitted the arrest of debtors against whom judgment had been rendered; as the Lex Publilia against a party for whom his sponsor had paid the debt, if, within the next six months from the time when it was paid, he had not indemnified him; likewise, the Lex Furia de Sponsu against one who had collected from his sponsor more than his proportionate share; and finally, many other laws granted proceedings of this kind in numerous instances.
(23) Other enactments provided that, on certain grounds, proceedings could be instituted by the imposition of hands; but this was the simple act, and not authorized in the case of debtors against whom judgment had been rendered; for instance, the Lex Furia Testamentaria permitted this to be done against a party who, as a legatee or the recipient of a donation mortis causa, had received more than a thousand asses, when he was not excepted under this law, and was entitled to receive more; also the Lex Marcia against money-lenders, so that if they collected interest, they could be compelled by this proceeding to refund it.
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(24) By these laws and others similar to them, the defendant was permitted to resist arrest, and take legal measures to defend himself, for the plaintiff in this form of judicial procedure was not entitled to add the words, "On account of a judgment rendered"; but after having stated his cause of action, said: "For this reason I lay hands upon you"; just as he in whose favor proceedings were instituted on account of a judgment, after having stated his cause of action, said: "I arrest you on account of the judgment which has been rendered against you." It has not escaped my notice that in proceedings under the Lex Furia Testamentaria the words, "On account of the judgment rendered against you," were inserted, although they do not appear in the law itself; which seems to have been done without any reason.
(25) Afterwards, however, by the Lex Vallia all other defendants, except judgment debtors and principals whose debts had been paid by their sureties, were permitted to resist arrest, and avail themselves of the law for their defence, when this proceeding was instituted against them. Therefore, the party against whom judgment was rendered, and one whose debt had been paid by his surety were, even after this law, required to appoint a defender; and if they did not do so, were taken to the house of their creditor; and this rule was observed as long as the ancient forms of procedure were employed. Hence, in our times, anyone against whom proceedings have been brought in an action on judgment or to recover the amount of the debt paid by a surety is compelled to furnish security to satisfy the claim.
(26) Pignoris Capio was employed in some instances through custom, and in others by virtue of law.
(27) It was introduced through custom into military affairs; for a soldier was entitled to employ this proceeding against the paymaster for his pay, if he did not give it, which compensation was designated æs militare, and he could also distrain for money for the purpose of purchasing a horse, which was called æs equestre, as well as for money with which to purchase barley for his horse which was called æs hordiarium.
(28) The detention of property in this manner was also legally authorized, for instance, by the Law of the Twelve Tables against a party who bought a victim for sacrifice and did not pay for it; and likewise against one who did not pay the hire of a beast of burden which he had leased for the purpose of raising money to meet the expenses of a festival, that is to say, of a sacrifice. In like manner, the right to distrain was granted by the law of Censors to the farmers of the revenue of the Roman people, against persons who owed taxes under any law.
(29) In all these instances the property was seized by the employment of certain words; and, on this account, it was held by most authorities that this proceeding was also a form of statute process.
Others, however, were of the contrary opinion; first, because it took place out of court, that is to say, not in presence of the Prætor, and usually also during the absence of the adverse party; while, on the other hand, other actions could not be made use of by any one except in the presence of both the Prætor, and the adverse party, and besides property could not be distrained on an unlawful day, that is to say, on one when it was not permitted to act under the law.
(30) All these forms of judicial procedure, however, gradually became unpopular on account of the extreme subtlety of the ancient legal authorities, so that the result was that anyone who committed the slightest error lost his case. Hence, by the Lex Æbutia and the two Leges Julia, proceedings under this law were abolished, and another form was substituted for them; so that at present in litigation we make use of written instructions, that is to say, formulas, for that purpose.
(31) In only two instances was permission granted to act under the ancient procedure, that is to say, those of threatened injury, and those before the Centumviral Tribunal. When application is made to the Centumviri, proceedings are first instituted by the deposit of forfeits before the Urban or the Foreign Prætor; but in the case of threatened injury, no one wishes to employ the ancient procedure, but prefers to bind his adversary by a stipulation provided for in the Edict; by which means his rights are more conveniently and thoroughly protected. By the seizure of property as security for debt . . . . it is apparent.
(32) On the other hand, in the formula provided for the farmer of the revenue a fiction is inserted, ordering that the debtor be condemned to pay the same amount of money which he would have been compelled to pay in order to release his property, if it had been seized as security for the debt.
(33) No formula, however, is based on a fiction in a personal action for recovery; for whether we bring suit for a sum of money, or for any certain article of property as being due, we assert that the very thing itself should be transferred to us, and we do not add any fiction for the purpose of establishing the claim. Therefore, we understand these formulas to be those by which we allege that a definite sum of money, or certain specified property, should be transferred to us, and that the claim is valid by its own force and power. Actions of loan for use, trust, business transacted, as well as innumerable others are of the same nature.
(34) We make use of other fictions in certain formulas, for instance, when a party who claims possession of the property of an estate brings an action as a fictitious heir; for as he succeeds to the deceased by the prætorian, and not by the Civil Law, he is not entitled to a direct action, and cannot allege that what belongs to the deceased is his; nor can he demand that what was due to the latter should be paid to him; and therefore, under the fiction that he is the heir, he asserts his claim as follows: "Let So-and-So be judge. If Aulus Agerius" (that is to say, the plaintiff, himself) "should be the heir of Lucius Titius, and it is found that the land in question ought to belong to him by quiritarian right;" or if, in the case of a debt, a similar fiction having been employed by the party, as heir, there is added: "If it should appear that Numerius Negidius should pay to Aulus Agerius ten thousand sesterces."
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(35) Likewise, the purchaser of the property of a bankrupt estate may proceed under the fiction that he is the heir, and sometimes he can do so in a different way; for in his statement of the claim he may mention the person whose property he purchased and himself in the condemnation; that is to say, that his adversary may be condemned to pay him on this account what belonged to the former or was due to him. This species of proceeding is called Rutilian, because it was devised by the Prætor Publius Rutilius, who is said to have also introduced the sale of bankrupt estates. The kind of action mentioned above, by which the purchaser of the property of an insolvent estate pretends to be the heir, is called Servian.
(36) Likewise, there is a pretended usucaption in the action which is styled Publician. This action is granted to a party who claims property which has been delivered to him for some legal reason, and of which he lost possession before obtaining a title to it by usucaption; for because he cannot claim it as his under quiritarian right, the fiction is employed that he has acquired it by usucaption and hence, as it were, to have become its owner, by quiritarian right; for instance, as follows: "Let So-and-So be judge. If the slave whom Aulus Agerius purchased and who was delivered to him remained in his possession for a year, the said slave would then have lawfully belonged to the said Aulus Agerius by quiritarian right, etc."
(37) Likewise, Roman citizenship is feigned in the case of an alien, if he either sues or is sued in an action established by our laws; provided it is just that the said action may be extended to aliens. For example, if an alien sues or is sued for theft, or for aiding and abetting theft, the following formula should be employed, "Let So-and-So be judge. If it appears that a gold cup was stolen from Lucius Titius by Dio the son of Hermæus, or with his aid and advice for which he would have been compelled to make restitution for theft if he had been a Roman citizen, then let the said Dio, the son of Hermæus be convicted, etc."
Again, if an alien brings the action of theft, or if, under the Lex Aquilia he sues or is sued for damage to property, he can avail himself of the fiction of Roman citizenship, and judgment can be rendered either for or against him.
(38) Moreover, sometimes we may feign that our adversary has not suffered a loss of civil rights; for if a man or a woman has become liable to us under a contract, and he or she has afterwards undergone forfeiture of civil rights — as, for instance, the woman by coemption, and the man by arrogation — he or she ceases to be indebted to us under the Civil Law, and we cannot directly claim that either is bound to transfer anything to us. In order, however, that the party may not have power to annul our rights, an equitable action is granted against him or her by a fictitious rescission of the loss of civil rights; that is to say, one in which it is feigned that the party had not suffered a disability of this kind.
(39) The divisions of the Formula are the following, the Demonstratio, the Intentio, the Adjudicatio, and the Condemnatio.
(40) The Demonstratio is that part of the Formula which designates the ground on which the case is brought, that is to say, the following part of the same: "For the reason that Aulus Agerius sold a slave to Numerius Negidius"; or "For the reason that Aulus Agerius left a slave in the keeping of Numerius Negidius".
(41) The Intentio is that part of the Formula in which the plaintiff states his claim; for instance, as follows: "If it appears that Numerius Negidius should pay ten thousand sesterces to Aulus Agerius"; or, "Whatever it appears that Numerius Negidius should pay to, or do for, Aulus Agerius"; likewise, "If it appears that the slave in dispute is the property of Aulus Agerius, by quiritarian right".
(42) Adjudicatio is that part of the Formula by which the judge is permitted to assign the property in question to one of the litigants; as for instance, where an action for the partition of an estate is brought between co-heirs; one for the division of common property between partners; one for the establishment of boundaries between neighbors. In cases of this kind, the following form is employed, namely: "Judge, award to Titius the amount to which he is entitled."
(43) Condemnatio is that part of the Formula by which authority is granted to the judge to condemn or discharge the defendant; for instance, as follows: "Judge, condemn Numerius Negidius to pay ten thousand sesterces to Aulus Agerius, and if the claim should not be proved, discharge him." Likewise, as follows: "Judge, condemn Numerius Negidius to pay to Aulus Agerius not more than ten thousand sesterces, and if the claim should not be proved, let him be discharged," or, as follows: "Judge, let Numerius Negidius be condemned to pay to Aulus Agerius"; etc., without adding the clause, "Not more than ten thousand sesterces".
(44) All these divisions are not found together but in every formula; where some of them appear, others do not, and in fact, sometimes the Intentio exists alone, as in prejudicial formulas, in which the question is whether a man is a freedman, or what the amount of a dowry may be, and numerous others. The Demonstratio. the Adjudicatio, and the Condemnatio are never found alone; for the Demonstratio without the Intentio and the Condemnatio, is of no effect; and, in like manner, the Condemnatio or the Adjudicatio has no force without the Intentio, and for this reason they are never found alone.
(45) We say that the formulas in which a question of right is involved, are founded in law; as for instance, when we assert that any property belongs to us by quiritarian right, or that the adverse party is obliged to pay us something, or make good a loss to us as a thief, for these formulas and others are those in which the claim is based on the Civil Law.
(46) We say that other formulas are based upon questions of fact, that is, where a claim of this kind is not made with reference to them; but, where a fact is stated in the beginning of a formula, words are added by which authority is given to the judge to condemn or discharge the defendant. This kind of a formula is employed by a patron against his freedman, when the latter brings him into court contrary to the Edict of the Prætor; for then it is in the following terms: "Let Soand-So be judges. If it is established that such-and-such a patron was brought into court by such-and-such a freedman, contrary to the edict of such-and-such a Prætor — judges, condemn the said freedman to pay to the said patron the sum of ten thousand sesterces. If the case should not be proved, discharge him."
The other formulas mentioned in the Edict with reference to the summoning of parties into court, refer to matters of fact; as for instance, against a person who, having been summoned into court, neither appeared nor appointed anyone to defend him; and also against one who rescued by force a party who was summoned to appear; and, in conclusion, innumerable other formulas of this description are set forth in the Register of the Prætor.
(47) In some instances, however, the Prætor permits formulas having reference to either law or fact to be employed; for example, in actions of deposit, and loan for use.
The following formula is one of law. "Let So-and-So be judge. Whereas Aulus Agerius deposited a silver table with Numerius Negidius, for which this action is brought, whatever Numerius Negidius is obliged to pay to, or do for, Aulus Agerius, in good faith, on this account, do you, judge, condemn Numerius Negidius to pay to, or do for Aulus Agerius, unless he makes restitution; and, if the case should not be proved, let him be discharged." The following formula: "Let Soand-So be judge. If it appears that Aulus Agerius deposited a silver table with Numerius Negidius, and, through the fraud of the said Numerius Negidius, the said table has not been restored to the said Aulus Agerius, do you, judge, condemn Numerius Negidius to pay to Aulus Agerius a sum of money equal to the value of the property, and if the case is not proved let him be discharged"; is one of fact. Similar formulas are employed in an action of loan for use.
(48) The condemnation clause of all formulas has reference to the pecuniary value of the property. Therefore if we claim any corporeal property, for instance, land, a slave, a garment, or gold or silver, the judge condemns the party against whom the suit was brought not to deliver the very thing itself, as was formerly the practice, but its estimated value in money.
(49) The judgment clause of the formula either mentions a certain, or an uncertain sum of money.
(50) The mention of a certain sum of money, for example, appears in the formula by which we demand the payment of a designated amount; for then the last part of the formula is as follows: "Judge, condemn Numerius Negidius to pay ten thousand sesterces to Aulus Agerius; and if the case is not proved, discharge him."
(51) A judgment for an uncertain sum of money has a two-fold signification. In the first instance, it is preceded by some restriction called a limiting clause, as, for instance, where we bring an action for an uncertain amount; for then in the last part of the formula the following words are employed: "Judge, condemn Numerius Negidius to pay not more than ten thousand sesterces to Aulus Agerius; and if the case should not be proved discharge him." If, however, the amount is uncertain, and there is no limit; for instance, where we bring suit for property belonging to us, which is in the possession of another, that is to say, if we institute proceedings for the production of property in court, the following words are used: "Judge, condemn Numerius Negidius to pay to Aulus Agerius a sum of money equal to the value of the property; and if the case is not proved let him be discharged."
(52) What then is the rule? If the judge decides against the defendant, he must require him to pay a certain sum of money even though no specified amount may have been mentioned in the judgment.
The judge should also be careful that, when a certain sum is stated in the judgment, not to require the defendant to pay a larger or a smaller amount, otherwise he makes the case his own. Again, if a limiting clause was inserted, he must take care not to condemn the defendant in a larger amount than is mentioned in said clause, otherwise, he will, in like manner, make the case his own; he is, however, permitted to render a judgment against him for a smaller sum; and even if there should be no limiting clause, he can condemn him in any amount that he may wish.
(52a) For the reason that the party who accepts the formula should state the amount which he claims, the judge is not required to render a decree for a larger sum; but the plaintiff cannot make use of the same formula a second time, and he should state in the condemnation the certain sum of money which he claims, in order that he may not recover less than he desires.
(53) If anyone claims more than he is entitled to he will lose his case, that is to say, he will lose his property, and he cannot obtain complete restitution through the Prætor; except in certain instances in which the Prætor does not permit all plaintiffs to suffer loss on account of their own errors; for he always comes to the relief of minors under the age of twenty-five years, as in other cases.
(53a) A plaintiff may demand more than he is entitled to in four ways; in the amount of property, in time, in place, and in the statement of his cause of action. He does so in the amount of property, if he demands twenty thousand sesterces, instead of ten thousand which are due to him; or, if he demands as his own, either the whole, or the greater part of the property, when he is only a joint owner.
He demands more in point of time, if he asks for payment before the debt is due.
He demands more in place, for instance, where payment is promised in a certain place, and he demands that it be made somewhere else, which was not mentioned in the contract; for example, if I stipulate with you as follows: "Do you solemnly agree to pay me ten thousand sesterces at Ephesus?" and afterwards bring suit at Rome under the formula, "If it appears by the stipulation that you are obliged to pay me ten thousand sesterces," I am understood to claim more than I am entitled to, for the reason that in this way I subject the promisor to more inconvenience than he would suffer if he paid at Ephesus. I can still absolutely demand payment at Ephesus, for this is not an additional place.
(53b) He demands too much in his statement of his cause of action, if he deprives the debtor of a choice which he had by the terms of the contract, for example, if anyone stipulates as follows: "Do you solemnly agree to either pay ten thousand sesterces, or deliver the slave Stichus?" as then he can demand either the one or the other. For although he may demand what is of lesser value, he still is considered to claim too much, because his adversary may sometimes more conveniently deliver what is not demanded.
Likewise, if anyone stipulates for a genus, and afterwards claims a species; for instance, if he stipulates for purple, in general terms, and afterwards expressly demands Tyrian purple, even though he may demand that of the least value the same rule will apply, for the reason which we have just mentioned.
The same rule also applies where anyone stipulates for a slave in general terms, and afterwards demands a particular slave, for example, Stichus; although he may be almost worthless. Therefore, the phraseology of the formula designating the claim must exactly coincide with what was set forth in the stipulation.
(54) It is perfectly evident that too large an amount cannot be claimed by an uncertain formula, because as a definite amount is not demanded, but it is merely stated that the adversary shall give, or do only what he is required, no one can claim more. The same principle applies where a real action is granted to recover an uncertain share of property; as for example, when a plaintiff demands that there shall be transferred to him the share of the land in question to which he is entitled, which kind of action is granted in very few instances.
(55) It is also evident that if anyone claims one thing instead of another, he will run no risk, as he can bring another suit, because he is not considered to have previously done anything which was legal; for instance, where a party who had a right to claim the slave Stichus, demands Eros; or where anyone states that he is entitled to property under a will, when in fact he is entitled to it under the terms of a stipulation; or where an agent or attorney claims that property should be transferred to him, instead of to his principal.
(56) To claim more than one is entitled to, as we have stated above, involves risk; but anyone is permitted to claim less. He is not permitted, however, to bring suit to recover the remainder in the jurisdiction of the same Prætor, for anyone who does so, is barred by the exception styled the exception against division of actions.
(57) If more is claimed in the condemnation than is proper, the plaintiff runs no risk; but as the defendant has made use of a formula which was unjust, he may obtain complete restitution, in order that the amount of the judgment may be reduced. If, however, less be set out in the condemnation than the plaintiff has a right to, he only obtains the amount which he sued for, as the entire claim was brought into court, and he will be limited by the amount stated in the condemnation which the judge cannot exceed. In a case of this kind the Prætor does not grant complete restitution, for he more readily comes to the relief of defendants than plaintiffs. We, however, except minors under the age of twenty-five years, for the Prætor always comes to the relief of such persons, where loss of property has been sustained by them.
(58) Where more or less than is due is set forth in the Demonstratio, no case is brought into court, and hence the matter remains unaltered; and this is what is meant when it is said that a right is not extinguished by a false statement of the cause of action.
(59) Still, there are some authorities, who hold that less than is due may be properly included in the Demonstratio; so that a party who has purchased both Stichus and Eros, is considered to have properly stated his cause of action as follows: "Whereas I purchased the slave Eros from you"; and, if he desires to do so, he may bring an action for the recovery of Stichus by means of another formula; because it is true that anyone who purchased both slaves also purchased each of them; and this was especially the opinion of Labeo. If, however, he who purchased one of them, should bring an action to recover both, he makes a full statement of his cause of action. The same rule is applicable to other actions, for instance, to those of Loan for Use, and Deposit.
(60) We have found it stated in certain writers that, in the action of Deposit — and indeed in all others in which, the condemned party is branded with infamy — anyone who demands more than he is entitled to in the statement of his cause of action, will lose his case; for instance, where he who had deposited one article, alleges in his statement that he had deposited two; or where he who was struck on the cheek with the fist, states in an action for injury sustained that he was also struck in some other part of the body. Let us carefully examine whether we should hold this opinion to be correct.
It is true that there are two formulas employed in the Action of Deposit, one based upon the law and the other upon fact, as we mentioned above. The one based on the law, in the first place, designates the cause of action in the manner in which this is usually done, and then sets out the claim as being based upon the law in the following terms: "Whatever the defendant should, on this account, give or perform." But in the formula based upon fact, the cause of action is set forth in the beginning without any previous statement, as follows, "If it appears that So-and-So deposited such-and-such property with Soand-So"; we should entertain no doubt that if anyone in a formula based on fact alleges that he has deposited more articles than was actually the case he will lose his suit, because he is considered to have included in his claim more than he was entitled to. . . .
(61) Set-offs frequently take place in such a way that each party receives less than he would otherwise be entitled to. For, as in bona fide actions, the judge is considered to have full power to estimate how much should justly and properly be paid to the plaintiff; on the other
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hand, he also has authority to determine how much the plaintiff should pay in the same case, and to render judgment against the defendant for the remainder.
(62) Bona fide actions are such as the following: purchase and sale; leasing and hiring; the transaction of the business of others without authority; deposit; trust; partnership; guardianship; dotal property.
(63) The judge also has a right not to consider any set-off, at all, as he is not expressly directed to do so by the terms of the formula; but, for the reason that this seems to be proper in a bona fide action, it is therefore held to be part of his duty.
(64) The case of an action brought by a banker is different, for he is compelled to take account of a set-off, and to mention it in his statement; and to such an extent is this true, that he must make allowance for it in the first place, and only demand that the remainder shall be paid to him. For example, if he owes ten thousand sesterces to Titius, and Titius owes him twenty thousand, he should state his claim as follows: "If it appears that Titius owes him ten thousand sesterces more than he owes Titius."
(65) Again, the purchaser of the estate of a bankrupt is directed to make a deduction when he brings his action, so that his adversary will only have judgment rendered against him for the balance which remains after having deducted what the purchaser of the estate owes the defendant on account of the insolvent debtor.
(66) Between the set-off which is made against the claim of the banker, and the deduction to be taken from the claim of the purchaser of a bankrupt estate, there is this difference, namely: that property of the same kind and nature is only included in the set-off; as for instance, money is set-off against money; wheat against wheat; wine against wine; and it is even held by some authorities that wine cannot be set off against wine, or wheat against wheat, unless it is of the same nature and quality. In making the deduction, however, property is included which is not of the same kind. Hence, if the purchaser of the estate of a bankrupt brings an action for money due the latter, and he himself owes a certain quantity of grain or wine, after it has been deducted, suit shall be brought only for the remainder, whatever it may be.
(67) Deduction is also made of what will be due hereafter at a certain time, but set-off only takes place where the debt is already due.
(68) Moreover, the amount of the set-off is inserted in the statement of the claim, the result of which is that if the banker demands in the set-off a single sesterce more than he is entitled to, he will lose his case, and therefore his property as well. The deduction, however, is inserted in the judgment, in which place the claimant does not run any risk, for demanding too much; especially when the purchaser of a bankrupt estate brings a suit in which, although he makes a claim for a certain amount of money, he, nevertheless, sets out an uncertain amount in the condemnation.
(69) For the reason that we have previously mentioned the action brought against the peculium of sons under parental control and slaves, it is necessary for us to more clearly explain this, as well as the other actions, which are ordinarily brought against parents and masters, on account of their sons and slaves.
(70) In the first place, if a transaction was entered into with a son or a slave, by order of his father or his master, the Prætor will grant an action for the entire amount against the father or the master; and this is proper, because anyone who enters into a transaction of this kind takes into consideration their responsibility rather than that of the son, or the slave.
(71) For the same reason the Prætor grants two other actions, the Actio Exercitoria, and the Actio Institoria. The first will lie where the father or the master places his son or his slave in charge of a ship, and any business on this account is transacted by the party in charge. For whenever a debt has been contracted with the consent of the father or master, it appears to be perfectly just that an action for the entire amount should be granted against him. And even though a person appoints as the master of a ship either a slave belonging to another, or a freeman, the prætorian action will, nevertheless, be granted against him. This action is called "Exercitoria," for the reason that the party who obtains the daily returns from the ship is called "Exercitor."
The Institorial Formula is employed when anyone places his son or slave, or the slave of another or a freeman, in charge of his shop, or of any kind of business whatsoever; and where the party placed in charge of the same contracts any debt which has reference to the said business. It is called "Institoria," for the reason that the party placed in charge of a shop is called "Institor"; and this formula is made use of for the collection of the entire amount which is due.
(72) In addition to these, the Actio Tributoria has been established against a father or a master, when his son or slave transacts some business with his peculium, with the knowledge of his father or his master. For if any contract having reference to said property should be made with either of them, the Prætor directs that whatever was invested in the said business, or any profits derived from the same, shall be distributed between the father or master, if anything is due to them, and among any other creditors, in proportion to their respective claims; and for the reason that he permits the distribution to be made to the father, or the master, if any creditor should complain of having received less than he was entitled to, he enables him to bring this action which is called "Tributoria."
(73) Moreover, the action De Peculio was introduced where any advantage accrued to the father, or the master; and although the business may have been transacted without the consent of either of them, still, whatever was expended for the benefit of their property should be paid in full; or if it was not expended for that purpose, payment should be made to the amount of the value of the peculium. It is supposed to have been expended for the benefit of the master's property
if the slave should have disbursed anything necessarily for the advantage of his master; for instance, if he should pay borrowed money to his creditors; or should prop up buildings which are about to fall; or should purchase grain for his household; or should buy a tract of land, or any other property which it was necessary to acquire. Therefore, for example, if out of ten sesterces which your slave borrowed from Titius, he should pay five to your creditor, and should expend the remaining five in any way whatsoever, you ought to have judgment rendered against you for five, and for the other five to the amount of the peculium.
From this it is apparent that if all of the ten sesterces were employed for the benefit of your property, Titius can recover the entire ten; for, although there is but one action having reference to the peculium to recover what was used for the benefit of the property of the father, or the master, still, he has the right to two judgments; and, therefore, the judge before whom the action is brought, should investigate in the first place, whether the expenditure was made for the benefit of the property of the father, or master; and should not pass to the estimation of amount of the peculium, unless either nothing was understood to have been expended for the benefit of the property of the father, or master, or that not all of it was so employed; as, when the estimate is made of the amount of the peculium, that should previously be deducted which is due to the father or the master, by the son, or the slave who is under his control; and the remainder shall only be considered as peculium. Sometimes, however, the amount due by the son, or the slave, as aforesaid, is not deducted from the peculium; for instance, if he who owes it himself forms a part of the said peculium.
(74) But there is no doubt that either the Actio Exercitoria, or the Actio Institoria will lie in favor of anyone who has entered into a contract with a son or a slave, by the order of his father or master; and that he can bring the action of peculium, or that based on the employment of property for the benefit of another. No one, however, when he could undoubtedly obtain the whole amount of the debt by means of either of the above mentioned actions, would be so foolish as to take the trouble to prove that the party with whom he contracted had a peculium, and that his claim could be satisfied out of it; or that the money which he demanded had been employed for the benefit of the father, or master.
(74a) Again, he who is entitled to bring the Actio Tributoria, can also bring the Actio de Peculio, as well as the one for the recovery of money employed for the benefit of another: and it will generally be more advantageous for him to make use of this action than of the Actio Tributoria, for in the latter only the account of the peculium is considered which the son, or the slave made use of in the business in which he was engaged, and the profits of the same; in the Actio de Peculio, however, the entire peculium is involved; and anyone may transact business with a third or a fourth of it, or even with a smaller portion, and have the greater part of his peculium otherwise invested. This is even more true, and he should certainly have recourse to this action if it can be proved that what the party who contracted with the son or the slave gave was used for the benefit of the father or the master; for, as we stated above, the same formula is employed both in the action having reference to the peculium, and in the one to recover property used for the benefit of another.
(75) Noxal actions are granted on account of offences committed by sons under paternal control, or by slaves; as, for instance, where they commit theft or injury; so that the father or master is permitted either to pay the damages assessed, or to surrender the culprit by way of reparation; for it would be unjust for the misconduct of a son or a slave to cause any loss to his parent, or his master, except by the forfeiture of the body of the son or the slave.
(76) Moreover, noxal actions were established either by law or by the Edict of the Prætor; by law, for instance, in the action of theft under the provision of the Twelve Tables; the action for wrongful damage by the Lex Aquilia; the action for injury, and that for property taken with violence by the Edict of the Prætor.
(77) All noxal actions follow the person of the culprit. Hence, if your son, or your slave commits a wrongful act while he is under your control, an action will lie against you; if he conies under the power of another, an action can be brought against the latter; if he becomes his own master, a direct action can be brought against him, and his surrender by way of reparation is extinguished.
On the other hand, a direct action may become a noxal one; for if the head of a household commits a wrongful act and he gives himself in arrogation to you, or becomes your slave; what we stated in the First Commentary might happen in certain cases takes place; that is to say, a noxal action can be brought against you, when, formerly, a direct action would lie against the offender himself.
(78) If, however, a son commits a wrongful act against his father, or a slave against his master, no right of action will arise; for no obligation can, under any circumstances, be created between me and one who is under my control. Hence, although he may pass under the control of another, or becomes his own master, an action will lie neither against himself, nor against the party under whose control he now is. Therefore, the question arises where the son or the slave of another commits a wrongful act against me, and subsequently is subjected to my authority; whether, on this account the action is extinguished, or remains in suspense. Our preceptors hold that it is extinguished, because conditions have become such that it cannot be brought; and, therefore, if the party should be freed from my control, I cannot bring suit.
The authorities of the other school are of the opinion that as long as he is in my power, the action remains in suspense, for the reason that I cannot sue myself; but that when he is no longer subject to my authority the action is revived.
(79) Moreover, when a son under paternal control is transferred by mancipation, on account of some wrongful act which he has committed, the authorities of the other school think that he should be sold three times, because it is provided by the Law of the Twelve Tables that a son cannot be released from the authority of his father unless he has been three times sold. Sabinus, Cassius, and the other authorities of our school, however, hold that one sale is sufficient, and that the three mentioned by the Law of the Twelve Tables only refer to voluntary sales.
(80) So much with reference to those persons who are under the control of their fathers and masters whether the controversy relates to their contracts, or their crimes. But with reference to such persons as are in hand, or are liable to mancipation, the law is said to be that when an action founded on contract is brought against them, unless they are defended against the entire amount by the party to whose authority they are subject, any property which would be theirs, if they had not been under control, shall be sold. When, however, their forfeiture of civil rights having been rescinded, an action based on the judicial power of the magistrate is brought against them and is not defended, the woman herself can be sued, while she is in the hand of her husband, because, in this instance the authority of the guardian is not necessary. . . .
(81) What course then should be pursued? Although we stated that it was not permitted to surrender dead persons by way of reparation for the commission of a wrongful act; still, if anyone should surrender the body of such a person who had died, he will (be) legally released from liability.
(82) In the next place we should note that we can either sue in our own names, or in that of another, as for instance, our agent, attorney, guardian, or curator, while formerly, when the legis actionis were employed, a man could not bring an action in the name of another, except in certain cases.
(83) Moreover, the attorney in an action is appointed by prescribed forms of words in the presence of the adverse party. The plaintiff appoints an attorney as follows: "Whereas, I am bringing an action against you (for example) to recover a certain tract of land; I appoint Lucius Titius my attorney against you in this matter." The adverse party makes his appointment as follows: "Whereas, you have brought an action against me to recover a tract of land, I appoint Publius Mævius my attorney against you in this matter." The plaintiff may make use of the following words: "Whereas, I desire to bring an action against you, I appoint Lucius Titius my attorney in this matter." The defendant says: "Whereas, you desire to bring an action against me, I appoint Publius Mævius my attorney in this matter."
It makes no difference whether the attorney appointed is present, or absent; but if an absent person is appointed, he will only become the attorney if he accepts and undertakes the duties of the office.
(84) An agent, however, is substituted in the case without the use of any special forms of words, merely by mandate alone, and his appointment can be made during the absence, and without the knowledge of the adverse party. Moreover, there are some authorities who hold that one can become an agent, without having been directed to do so,
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provided he attends to the business in good faith, and gives security that his principal will ratify his acts; although he to whom the mandate was given is generally required to furnish security, because the mandate is frequently concealed in the beginning of the proceedings and is afterwards disclosed in court.
(85) We have stated in the First Commentary in what manner guardians and curators are appointed.
(86) He who brings an action in the name of another makes the claim in the name of his principal, and mentions his own name in the condemnation. If, for instance, Lucius Titius brings suit for Publius Mævius, the formula is in the following words: "If it appears that Numerius Negidius should pay to Publius Mævius ten thousand sesterces, Judge, condemn Numerius Negidius to pay ten thousand sesterces to Lucius Titius, and if his indebtedness should not be established discharge him from liability." Again, in a real action, the claim is made that the property belongs to Publius Mævius by quiritarian right, and the representative is mentioned in the condemnation.
(87) When anyone intervenes in behalf of the party against whom the action is brought, and the claim is made that "the principal should make payment," the condemnation is stated in the name of the representative of the party sued. In the case of a real action, however, the name of the party defendant is not mentioned in the claim, either when he appears in person, or by a representative; for the claim merely states that the property in question belongs to the plaintiff.
(88) Let us now consider under what circumstances either the defendant or the plaintiff may be compelled to give security.
(89) Hence, for example, if I bring a real action against you, you should furnish me security, for it appears to be but just as you are permitted to retain possession of the property, and it is doubtful whether it belongs to you, or not, that you should give security that if you are defeated, and do not restore the property itself, or refuse to pay its value, I may have the power to proceed against you, or your sponsors.
(90) There is all the more reason that you should furnish me security, if you are acting as the representative of another in the case.
(91) Moreover, a real action is of a twofold nature; for it is either brought by a formula stating the claim, or by one based on a solemn engagement; and, if it is made in the manner first mentioned, the stipulation called "security for the payment of a judgment" will apply; but if it is based on a solemn engagement, that form of stipulation styled "security for the property in dispute and the profits derived from the same," is the one made use of.
(92) The formula which states the claim contains the allegation of the plaintiff that the property belongs to him.
(93) In the proceeding based upon a solemn engagement, we proceed as follows, and we make this demand upon the adverse party:'"If the slave in dispute is mine by quiritarian right, do you promise to pay me twenty-five sesterces?" And then we state the formula by which we claim that the sum mentioned in the promise should be paid to us; but we can only gain our case by means of this formula if we prove that the property is ours.
(94) The sum mentioned in the promise is not exacted, for it is not penal, but merely prejudicial, and is used only for the purpose of deciding the right to the property; therefore even the party against whom the action is brought does not make another stipulation with the plaintiff. Moreover, this kind of a stipulation instead of security for the property in dispute and for the profits of the same, was so called because it took the place of personal sureties who formerly, when proceedings were instituted under the legis actiones, were given by the party in possession to the plaintiff, for the restoration of the property itself and the mesne profits of the same.
(95) When, however, the suit is brought before the Centumviri, we do not demand the sum mentioned in the solemn engagement, by the formula, but under the ancient form of procedure; for then we challenge the defendant by the deposit, and the promise of a hundred and twenty-five sesterces is made by virtue of the Lex . . . .
(96) If a party brings a real action in his own name, he does not furnish security.
(97) And even if an action is brought by an agent, no security is required from him, or his principal, for he has been substituted for his principal by a prescribed and, as it were, solemn form of words; and he is very properly considered to occupy the place of his principal.
(98) If, however, an agent brings the action, he is ordered to give security that his principal will ratify his acts; for there is danger that, otherwise, the principal might bring a second action with reference to the same property, which danger does not exist where the suit was brought by an agent; for the reason that anyone who sues by an agent has no greater right of action than if he brought the suit himself.
(99) The terms of the Edict compel guardians and curators to furnish security in the same way as agents; sometimes, however, they are not required to do so.
(100) So much with reference to real actions. In the case of personal actions, when inquiry is made now and when security should be furnished by the plaintiff, we repeat what we have already said with reference to real actions.
(101) But with respect to the party against whom the action is brought, where anyone intervenes in his behalf, he must, by all means, furnish security, for the reason that no one is understood to be a proper defender of another's affairs without security. If the action is brought against an attorney, his principal is required to furnish security, but if brought against an agent, the latter must furnish it himself. The same rule applies to guardians and curators.
(102) If, however, a party undertakes his own defence in a personal action he usually gives security to pay the judgment, in certain
 Original manuscript illegible.
cases which are indicated by the Prætor. In these cases there are two reasons why security is exacted; for this is either done on account of the nature of the action, or because the character of the defendant is suspicious. It is required on account of the nature of the action, for instance, where it is one to compel the payment of a judgment, or to collect money expended for a principal; or where the morals of a wife are involved. It is required on account of the suspicious character of the defendant, where he has squandered his property; or his creditors have obtained possession of it, or advertised it for sale; or when proceedings have been instituted against an heir whom the Prætor considers liable to suspicion.
(103) Actions are either founded upon law, or are derived from the authority of a magistrate.
(104) Actions founded upon law are those which are brought in the City of Rome, or within the first mile-stone from that city, between Roman citizens before a single judge. Those brought under the Lex Julia Judiciaria expire after the lapse of a year and six months, unless they have been previously decided; and this is the reason why it is commonly stated that under the Lex Julia a case dies after a year and six months have elapsed.
(105) Actions derived from the authority of a magistrate are those brought before several judges, or before a single judge, if either the latter or one of the litigants is an alien. These actions belong to the same class as those which are brought beyond the first mile-stone from the City of Rome; whether the parties litigant are Roman citizens or aliens. Cases of this kind are said to be derived from the authority of the magistrate, for the reason that the proceedings are only valid as long as he who directed them to be instituted retains his office.
(106) Where an action is brought under the authority of a magistrate, whether it is real or personal, or whether it was based upon a formula of fact, or a statement of law, it is not by operation of law a bar to subsequent proceedings having reference to the same matter, and therefore it is necessary to plead an exception on the ground that a decision has already been rendered, or that issue has been joined in the case.
(107) If, however, a personal action based on a legal statement has been brought by the formula relating to claims under the Civil Law, an action cannot subsequently be maintained with reference to the same matter by operation of law, and for this reason an exception will be superfluous. If, however, a real action, or an equitable personal action based upon fact, should be brought, proceedings may nevertheless subsequently be instituted, by operation of law; and on this account an exception on the ground that the question has already been decided, or that issue has been joined, will be necessary.
(108) The rule was formerly different when the ancient method to procedure was employed, for when proceedings concerning a matter had once been instituted, no legal action could be taken with reference to it, nor was the employment of exceptions in those times customary, as it is now.
(109) Moreover, an action may be founded upon law, and yet not be legal; and, on the other hand, it may not be founded upon law, but still be legal. For example, proceedings based upon the Lex Aquilia, Publilia, or Furia, when instituted in the provinces, are derived from the authority of the magistrate, and the rule is the same if we bring an action before several judges, or before a single judge if one of the parties is an alien; and, on the other hand, if an action in which all the parties are Roman citizens is brought at Rome before a single judge, for the same cause for which a right of action is granted to us by the Prætor, it will be legal.
(110) In this place we should note that those actions which are based upon a statute or a decree of the Senate are usually granted by the Prætor in perpetuity; but that those which are dependent upon the jurisdiction of the Prætor himself are only granted within a year from the time when the cause of action arose.
(111) Sometimes, however, he also grants such actions in perpetuity, as, for instance, those in which the Civil Law is imitated; such as the actions which he grants to the prætorian possessors of estates, and to other persons who occupy the place of an heir. The action of manifest theft, although it is derived from the jurisdiction of the Prætor himself, is granted without limitation of time, and this is reasonable, as a pecuniary penalty has been established instead of a capital one.
(112) All actions which lie against anyone, either by operation of law, or because they are granted by the Prætor, do not also lie against his heir, nor are usually granted by the Prætor; for this rule is so positive that penal actions arising from criminal offences do not lie, and are not usually granted against an heir; as, for instance, the action of theft, of the robbery of property by violence, or of injury, or of unlawful damage.
Actions of this kind will, however, lie in favor of heirs, and will not be refused them by the Prætor, with the exception of the action for injury, and any other of the same description if it can be found.
(113) Sometimes, however, even an action based upon a contract will not lie for or against an heir; since the heir of a joint stipulator has no right of action, and the heir of a sponsor or guarantor is not liable.
(114) It remains for us to consider whether, if the party against whom the action was brought before judgment had been rendered but after issue had been joined, should satisfy the plaintiff, what course the judge should pursue; whether he has authority to discharge him from liability, or whether he should rather decide against him for the reason that at the time of the joinder of issue he was in such a position that he should have been condemned. Our preceptors think that he should be discharged, and that it makes no difference what kind of a judgment is rendered; and this is the reason why it is commonly said that it was the opinion of Sabinus and Cassius that a discharge from liability could be granted in all actions.
The authorities of the other school agree in this point with reference to bona fide actions; because in cases of this kind no restraint is placed upon the judge; and their opinion is the same with reference to real actions, for the reason that there is an express provision of this kind stated in the terms of the formula, so that if the defendant should restore the property he shall be discharged from liability. This, of course, applies where the action was brought under the formula making the claim, in which the party is sued in such a way that the property is dispute is demanded, and the words above referred to are repeated in the beginning of the condemnation; for sometimes . . . . personal actions of this kind are brought in which it is not permitted ... .
(115) In the next place let us examine exceptions.
(116) Exceptions have been introduced for the purpose of defending those against whom actions have been brought; for it often happens that a party is liable by the Civil Law, when it would be unjust for a judgment to be rendered against him.
For example, if I stipulate for a sum of money from you on account of my having advanced it to you, when I never did so; as it is certain that I can bring an action against you for the money and you would be obliged to pay it as you are liable under the stipulation, but because it would be unjust for judgment to be rendered against you on this account, it is settled that you can defend yourself by the exception on the ground of fraud.
Likewise, if I make an informal agreement with you not to bring suit for a debt which you owe me; I can nevertheless, bring an action against you for the amount, and you will be obliged to pay me because the obligation is not extinguished by a mere agreement, but if I should sue you, it is established that you can bar me by an exception on the ground of an agreement entered into.
(117) Again, exceptions can be pleaded in actions which are not personal; for example, if you compel me through fear, or induce me through fraud, to sell any property to you, and then you sue me for the said property, an exception will be granted me by which you will be barred, if I can prove that you have been guilty of intimidation or fraud.
Likewise, if knowing that a case involving the title to a tract of land was pending in court, and you buy the land from a party who is not in possession, and claim it from one who is in possession, an exception can be pleaded against you by which you will be absolutely barred.
 Original copy illegible.
 The exceptio, or exception, was the answer of the defendant, and while by means of it he could traverse the plaintiff's allegations, this was not usually done; but the practice was to set forth circumstances, which, if they did not directly contravene the statements of the plaintiff — and they even sometimes admitted them — rendered these of no effect, by alleging bad faith, fraud, or flagrant injustice. Hence the exceptio almost exactly coincided with the English plea of confession and avoidance. — ed.
(118) The Prætor mentions other exceptions in his Edict, and he grants still others after having taken cognizance of the case. All of them are either based upon law or what is equivalent to it, or they are derived from the jurisdiction of the Prætor.
(119) Moreover, all exceptions are drawn up in language which is the opposite of what the party against whom the action is brought alleges. For if the defendant states that the plaintiff is guilty of fraud, for the reason that he brings suit for money which he never advanced, the exception is stated in the following words: "If in this matter no fraud was, or is committed by Aulus Agerius."
Likewise, if he states that the action was brought in opposition to an agreement not to demand the money, it is set forth as follows: "If it was not agreed between Aulus Agerius and Numerius Negidius that the said money should not be demanded"; and similar terms are ordinarily employed in other cases. Hence, because every exception is an objection made by the defendant but is inserted in the formula in such a way as to render the condemnation conditional, that is, the judge must not condemn the defendant unless no fraud was committed by the plaintiff with reference to the matter in question, the judge shall not render a decree against him if no informal agreement was entered into not to bring suit to recover the money.
(120) Exceptions are said to be either peremptory or dilatory.
(121) Peremptory exceptions are those which are always valid, and cannot be avoided; for instance, the exception on the ground of intimidation or fraud, or of a violation of the law; or of a decree of the Senate; or because the case has already been decided; or that issue has been joined; or that an informal agreement was entered into "that suit should not, under any circumstances, be brought to recover the money.
(122) Dilatory exceptions are such as are only valid for a time; for instance, the exception based on an informal agreement that suit shall not be brought within five years, and after that time has expired the exception cannot be pleaded. The exception of a divided claim, or that of a residual claim, is similar to this; for if anyone brings an action for a part of a debt, and should then bring another for the remainder in the same prætorship, he will be barred by the exception which is called that of a divided claim. In like manner, if one who has several claims against the same person brings suit on some of them, and defers doing so with reference to the remainder in order that they may be brought before other judges, and he then brings an action within the same prætorship, to recover those which he postponed, he will be barred by the exception styled that of a residual claim.
(123) It should be observed, however, that the party against whom a dilatory exception may be pleaded ought to defer his action, other-
 Pactum conventum. An agreement of this kind was not absolutely binding unless authorized by the Prætor who, however, rarely refused his sanction. When this was obtained, no difference existed between this kind of obligation and the contractus, or formal convention, so far as their legal requirements were concerned. — ed.
wise, if he proceeds and the exception be pleaded against him, he will lose his claim; as if issue had been joined, and his case has been lost by this exception, he has no longer any power to sue after the time during which, if matters had remained unchanged, he could have avoided the effect of the exception.
(124) Exceptions are understood to be dilatory not only with reference to time, but also with regard to persons; and to this class belong those which are connected with the position of attorney; for instance, where a party who, under the terms of the Edict, has no right to appoint an attorney acts through one; or, if he has a right to appoint an attorney, but appoints one who is not legally qualified to undertake the duties of the office. If the exception to an attorney is pleaded, and the party himself is such a person that he cannot appoint an attorney, he himself can bring the action; if, however, the attorney is not permitted to assume the duties of the office, his principal has the power to bring the suit, either by another attorney, or in his own proper person, and he can, in either one of these ways, avoid the exception; but if he should pay no attention to this disability, and conduct the case by the attorney he will lose it.
(125) If the defendant, through mistake, should not avail himself of a peremptory exception, he can obtain complete restitution, by adding the exception to the pleadings; but if he should not make use of a dilatory exception, it is a question whether he will be entitled to complete restitution.
(126) It sometimes happens that an exception which, at first sight, appears to be just, will cause injury to the plaintiff, and when this is the case an addition is required to the pleadings for the purpose of affording protection to the plaintiff, which addition is called a Replicatio, because by means of it the force of the exception is weakened and destroyed. If, for example, I made an informal agreement with you not to sue you for money which you owe me, and afterwards we entered into a contrary agreement, that is to say, that I might be permitted to sue you, and then if I do sue you, you plead the exception against me that judgment should only be rendered against you where no agreement had been made that I should not bring suit for the money, this exception on the ground of an informal agreement prejudices my claim, as the first agreement still retains its force, even though we made a contrary one subsequently; but because it is unjust for me to be barred by an exception, a replication based on the subsequent agreement is granted me as follows: "If no agreement was entered into afterwards that I might be permitted to bring an action to recover the money."
(126a) Likewise, if a banker brings suit for the price of property sold at auction, the exception may be pleaded against him that judgment is only to be rendered against the purchaser where the property which he bought had been delivered; and this is apparently a just exception. If, however, the condition was imposed at the auction that the property should not be delivered to the purchaser until he had paid the price of the same, the broker can make use of the following rep-
lication: "Or if it was previously stated at the sale that the property would not be delivered to the purchaser before he paid the purchase money."
(127) Sometimes, however, it happens that a replication which, at first sight, appears to be equitable, unjustly inflicts an injury on the defendant; and when this takes place, an addition to the pleadings is required for the purpose of protecting the defendant, which is styled Duplicatio.
(128) Again, if this, though it appears at first sight to be just, for some reason or other injures the plaintiff, another addition to the pleadings is required by which the plaintiff may be protected, and this is called a Triplicatio.
(129) Sometimes the multiplicity of affairs requires the use of additional exceptions to those which we have already mentioned.
(130) Let us now consider Prescriptions, which have been adopted for the benefit of the plaintiff.
(131) For it is frequently the case that, under the same obligation a party is required to do something for us at present, and something more at a future time. For instance, where we have stipulated for the payment of a certain sum of money every year, or every month, and, at the end of the year or month, a sum of money is required to be paid to us for this time; and with reference to years to come, although an obligation is understood to have been contracted, the time of payment has not yet arrived. Therefore, if we desire to bring an action to recover what is now due, and to proceed to joinder of issue and leave the future discharge of the obligation unimpaired, it is necessary, when we bring suit, to make use of the following prescription: "Let the proceedings have reference only to what is at present due." Otherwise, if we bring suit without making use of this prescription, under the formula by which we sue for an uncertain amount, the statement of the claim is expressed as follows: "Whatever it appears that Numerius Negidius should transfer to, or do for Aulus Agerius," brings the entire obligation, that is to say, also what is due in the future, into court; and no matter what may be due hereafter it cannot be collected, nor can an action subsequently be brought to recover the remainder.
(131a) Likewise, where for example, we bring an action on purchase, in order that land may be conveyed to us by sale, we must state the prescription as follows: "Let the proceedings only have reference to the sale of the land"; and, afterwards, if we desire vacant posses-
 These terms and the order of their employment are strongly suggestive of the ancient forms of Common Law pleading, the Reply, Rejoinder, Surrejoinder, Rebutter and Surrebutter. Under both the Roman and English systems, the pleadings could be indefinitely multiplied, until joinder of issue was attained, but it was not customary to extend them beyond the Triplicatio, or Surrejoinder. — ed.
 Præscriptio. This was equivalent to an exception, or a demurrer, which took the place of the Demonstratio, and was inserted in the beginning of the Formula. It was subsequently known as the Actio Præscriptis Verbis, and operated as a limitation of the right of action. To have legal effect, it was essential that it should be specially pleaded. — ed.
sion be delivered to us, we will be entitled to an action under the stipulation, or to one under the contract of purchase to compel its delivery. If we neglect to make use of this prescription, the obligation of our entire right embraced in the uncertain claim: "Whatever on this account Numerius Negidius. should give to, or do for Aulus Agerius," is disposed of by the statement of the claim in the former suit; so that afterwards we will not be entitled to any action to any action to compel the delivery of vacant possession, if we should desire to bring one.
(132) Prescriptions are so called for the reason that they precede the formulas, which fact is perfectly obvious.
(133) At the present time, however, as we mentioned above, all prescriptions proceed from the plaintiff, while formerly some of them were pleaded in behalf of the defendant, as for instance, the following prescription: "Let this point be determined, if it does not prejudice the estate"; which is now changed into a species of exception, and is used when the claimant of the estate prejudices the right to the same by bringing another kind of action, for example, if he brings suit for certain articles belonging to the estate; for it would be unjust to render the result of an action involving the entire estate dependent upon a decision having reference to only a portion of the same . . . .
(134) If suit is brought under a stipulation entered into by a slave, and the Intentio states to whom the amount is to be paid, that is to say, that what the slave stipulated for should be paid to his master; the allegations in the prescription should be true in accordance with their natural meaning.
(135) Moreover, what we have said with reference to slaves we understand to be applicable to all other persons subject to our authority.
(136) Again, we should observe that when we bring an action against a party who promised something which was uncertain, the formula should be drawn up so as to include a prescription, instead of a statement of the cause of action, as follows: "Let So-and-So be judge. For the reason that Aulus Agerius stipulated for something uncertain from Numerius Negidius, payment of which is now due, whatever on this account Numerius Negidius should transfer to, or do for, Aulus Agerius, etc."
(137) When an action is brought against a sponsor or surety, it is the practice, in the case of the sponsor, to employ the following form of prescription: "Let the action be tried on the ground that Aulus Agerius stipulated for something of uncertain amount from Lucius Titius, for which Numerius Negidius is sponsor for the amount which is now due." In the case of a surety, the following form is employed: "Let the case be tried on the ground that Numerius Negidius became surety for Lucius Titius for an uncertain amount, which is now due"; and then the formula is added.
 Original manuscript illegible.
 The Formulary System of the Romans contributed much of value and importance to both the principles and forms of the Common Law. The maxims of
(138) It remains for us to examine interdicts.
(139) The Prætor, or the Proconsul, interposes his authority directly in certain cases for the purpose of putting an end to controversies. This he especially does when there is a dispute between the parties with reference to possession or quasi possession; and, in short, he either orders something to be done, or forbids it to be done. Moreover, the formulas and the clauses made use of in this proceeding are styled interdicts and decrees.
(140) They are called decrees when he commands something to be done, for instance when he directs that something be produced in court, or restored; they are called interdicts when he forbids something to be done; for instance when he directs that no violence be employed against the party who is in possession without any defect; or that nothing be done on consecrated ground. Hence, all interdicts have reference to restitution, production, or prohibition.
(141) Still, when he orders that something shall be done, or prohibits some act from being performed, the affair is not immediately concluded, but recourse is had to one or more judges, and the formulas having been issued, an inquiry is held as to whether anything has been done, or some act which he ordered has not been performed, in opposition to the Edict of the Prætor. In a proceeding of this kind sometimes a penalty is involved, and sometimes it is not; it is penal, for instance, where a formal promise is concerned, and it is not where an arbiter is demanded. It is the practice to proceed under prohibitory interdicts always by way of solemn promise, and, in the case of orders for restitution or production, this is either done by way of formal promise or by means of the formula styled "arbitrary".
(142) Hence, the original division of interdicts is into prohibitory, or for restriction, or for production.
(143) The next division is into those instituted for the purpose of obtaining, retaining, or recovering possession.
(144) An interdict issued to the prætorian possessor of an estate for the purpose of obtaining possession begins: "Whatever portion of the property"; and its force and effect is that the possession of property held by anyone, as heir, or possessor, or who has fraudulently relinquished possession, shall be restored to the party to whom possession is granted by the interdict. He is considered to possess the prop-
the great lawyers of that age are still quoted authoritatively in our courts. The ancient writs of English legal procedure were directly derived from the Formula. As equity jurisprudence traces its origin to the broad and indulgent interpretation permitted the Prætorian Tribunal, so the modern bill in equity bears many striking resemblances to the instruments by means of which parties litigant were enabled to maintain their rights and protect their persons before the most powerful and distinguished of the Roman magistrates.
The formulæ were almost infinite in number and variety, and the party to a suit who failed to elect the one applicable to his case paid the penalty of his ignorance or negligence with the loss of his right of action. The abuses which grew out of the inflexible adherence to certain rules and forms which, encouraging chicanery and oppression, were often productive of gross injustice, eventually caused the abolition of the system. — ed.
erty as heir, not only when he is the actual heir, but also when he thinks that he is the heir. He holds the property as the mere possessor who has anything belonging to an estate, or the entire estate, without any title to the same, knowing that he is in possession of something that does not belong to him.
The interdict for the purpose of obtaining possession is so called because it is only advantageous to him who now, for the first time, attempts to acquire possession of the property; therefore, if anyone having obtained possession should lose it, the interdict ceases to be of any benefit to him.
(145) Again, an interdict is granted to the purchaser of a bankrupt estate, which some authorities call a possessory interdict.
(146) In like manner, an interdict of the same kind is granted to one who purchases confiscated property at a public sale, which is called Sectorium for the reason that those who purchase such property at public sale, are designated Sectores.
(147) The interdict called Salvianum was also one devised for the purpose of obtaining possession; and the owner of land can make use of it against the property of the tenant which the latter has pledged to him as security for the future payment of rent.
(148) It is the practice for interdicts for the purpose of retaining possession to be granted when a controversy arises between two parties with reference to the ownership of property; and it must be previously ascertained which one of the litigants should have possession, and which one should have a right to demand it; and it is for this purpose that the interdicts Uti Possidetis and Utribi has been established.
(149) The interdict Uti Possidetis is granted with reference to the possession of land or buildings; the interdict Utrubi with reference to the possession of movable property.
(150) If the interdict has reference to land or houses, the Prætor orders that party to have the preference who, at the time when the interdict was issued, obtained possession from his adversary, neither by force nor clandestinely, nor with his acquiescence.
When, however, it has reference to movable property, he orders that party to have the preference who, for the greater part of that year, has held possession against his adversary neither by force, nor clandestinely, or with his acquiescence; and this is sufficiently apparent from the terms of the interdicts themselves.
(151) But, in the interdict Utrubi, not only is the possession of every one a benefit to him, but that of another party which may be properly treated as accessory to it; for instance, that of a deceased person whose heir he is, and that of anyone from whom he has purchased property, or acquired it by means of a donation or a dowry. Hence, if the lawful possession of another party is added to our own, and it exceeds the possession of our adversary, we will be successful in the proceeding under that interdict.
The accession of time is not granted, and cannot be granted to one who has no possession of his own, for whatever does not exist can
have nothing added to it. If, however, a party should have defective possession, that is to say, if it had been acquired from his adversary either by violence, or clandestinely, or by mere acquiescence, no accession is granted, for his own possession is of no advantage to him.
(152) Moreover, the year is reckoned backward, and hence, for example, if you had possession eight months before I did, and I had it during the seven following months, I will be entitled to the preference, because your possession for the first three months would be of no advantage to you under this interdict, as the possession was in another year,
(153) We consider a party to be in possession not only where we ourselves possess, but also where anyone is in possession in our name, although he may not be subject to our authority; as, for instance, a tenant or a lessee. We are also considered to have possession by means of those with whom we have deposited property, or lent it for use, or to whom we have granted gratuitous lodging, or the usufruct or use; and this is what is commonly called the power of retaining possession of property by anyone who possesses it in our name.
Again, many authorities hold that possession can be retained merely by intention; that is to say, that though we ourselves may not be in possession, nor anyone else in our name, still, if there be no intention of relinquishing possession, and we leave the property, intending afterwards to return, we are deemed to have retained possession of it. We stated in the Second Commentary by what persons we could obtain possession, nor is there any doubt that we cannot obtain it by mere intention.
(154) The interdict for the purpose of recovering possession is usually granted where anyone has been ejected by violence, for the interdict which is issued begins as follows: "In the place from which you have been forcibly ejected"; and by means of it the party who ejected the other is compelled to restore possession of the property to him, provided the latter did not himself obtain possession either by violence, or clandestinely, or by permission from the former; hence, I can eject with impunity anyone who has obtained possession from me either by violence, or clandestinely, or by permission.
(155) Sometimes, however, even though I should forcibly eject the party who obtained possession from me either by violence, or clandestinely, or by permission, I can be compelled to restore possession to him; for instance, if I should eject him by force of arms, for, on account of the atrocity of the crime, I am liable to have proceedings instituted against me by which I shall be absolutely obliged to reinstate him in possession. We understand by the expression, "force of arms," not only the use of shields, swords, and helmets, but also that of sticks and stone.
(156) The third division of interdicts is into simple and double.
(157) Simple interdicts are, for instance, those in which one party is plaintiff and the other defendant, and of this description are all those established for the restitution or the production of property; for he is the plaintiff who demands that the property be either produced or restored, and he is the defendant from whom it is demanded that he produce or restore it.
(158) Of prohibitory interdicts some are double, and others simple.
(159) Simple interdicts are, for instance, those by which the Prætor forbids a defendant to perform any illegal act on consecrated ground, or in a public stream, or on its bank; for the plaintiff is he who demands that the act shall not be committed, and the defendant is he who attempts to commit it.
(160) Double interdicts are such, for instance, as Uti Possidetis and Utrubi. They are called double because the position of both litigants in them is the same, and neither is exclusively understood to be defendant or plaintiff, but both of them sustain the parts of defendant and plaintiff. In fact the Prætor addresses both in the same language, for the form of these interdicts is as follows: "I forbid force to be employed to prevent you from having possession of the property which you now possess." The terms of the other are as follows: "I forbid violence to be employed to prevent the party from removing the slave in dispute, and who has been in his possession for the greater part of the year."
(161) The different kinds of interdicts having been" explained, let us next consider their order and effects, and we shall begin with those which are simple.
(162) Therefore, if an interdict for the restitution or the production of property is issued; for instance, for the restitution of possession to one who has been forcibly ejected, or for the production of a freedman whose services his patron desires to claim, the proceedings are sometimes brought to a conclusion without the risk of incurring the penalty, and sometimes with that risk.
(163) For, if he against whom the case is brought should demand an arbiter, he receives the formula which is called "arbitrary," and if, by the award of the judge, he is required to restore or produce any property, he either produces or restores it without any penalty, and thus is discharged from liability; or if he does not restore or produce it, he is compelled to indemnify the plaintiff for the loss sustained through his disobedience. The plaintiff, however, can, without incurring a penalty, bring an action against one who is not required to produce or restore any property, unless an action for vexatious litigation is brought against him to recover the tenth part of the property in question; although it is said to have been held by Proculus that an action for vexatious litigation should be refused to him who demands arbitration, because he is considered to have, as it were, admitted that he ought to restore or produce the property. We, however, make use of another rule, and very properly; for anyone who demands an arbiter rather shows his intention to litigate in a more moderate manner, than for the reason that he admits the validity of the claim of his adversary.
(164) It should be observed that he who desires to demand an arbiter must do so before leaving court, that is before he departs from
the tribunal of the Prætor, for if such a demand is made later it will not be granted.
(165) Hence, if he does not demand an arbiter, but leaves the tribunal without doing so, the affair is brought to a conclusion at the risk of the parties; for the plaintiff challenges his adversary to deposit the forfeit which shall be paid if, in disobedience to the Edict of the Prætor, he does not produce or restore the property; and the defendant restipulates in opposition to the demand for a forfeit by his opponent. The plaintiff then delivers to his adversary the formula of the forfeit to be deposited, and the latter in his turn delivers that of the restipulation.
The plaintiff, however, adds to the formula of the promise of a forfeit another action for the restipulation or the production of the property in question, so that if he should be successful, and the property is not either reduced or restored to him . . . . 
(166) When a double interdict has been granted, the mesne profits are sold at auction and the highest bidder is placed in possession of the property, provided he furnishes his adversary security under the stipulation for the enjoyment of the profits; the force and effect of which is that if judgment should be rendered against him with reference to possession, he shall pay his adversary the sum provided for in the stipulation.
This bidding between the parties is designated the bidding for the profits, because they contend with one another for the profits of the property during the preliminary proceedings. After this, each one of them challenges the other to deposit the forfeit to be -paid by the promisor, if he has by violence interfered with the possession of his adversary, and hence has violated the Edict of the Prætor; and each of them mutually bind themselves, or the two stipulations being united so that one promise is made between them, and also one restipulation is entered into by one party against the other, which is the more convenient way of proceeding, and therefore the one most generally in use.
(166a) Then, after the necessary formulas of all the promises and restipulations have been filed by both parties, the judge before whom the case is tried must examine the point introduced by the Prætor in the interdict; that is to say, which of the parties was in possession of the land or the house at the time when the interdict was issued, and that he did not obtain possession of it by violence, or clandestinely, or with the permission of the adverse party. When the judge has investigated this, and has, perhaps, decided in my favor, he condemns my adversary to pay the penal sums called for by the promise and the restipulation which I made with him, and in consequence discharges me from liability for the promise and restipulation which were made with me. Further, if my adversary had possession of the property for the reason that he made the highest bid for the profits of the same, and he does not restore possession to me, he can have judgment rendered against him in the action styled Cascellian or Secutorian.
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(167) Therefore, if he who is the highest bidder does not prove that he is entitled to possession, he is ordered to pay the sums mentioned in the promise and restipulation, as well as the amount he offered in his bid for the mesne profits at auction, by way of penalty, and to restore possession of the property; and, in addition to this, he must return the profits which, in the meantime he has collected; for the sum of money mentioned in the bid for the profits is not the price of the same, but is paid as a penalty because the party attempted to retain possession belonging to another, for this time, and also to enjoy the profits derived from the property.
(168) Moreover, if he who made a lower bid for the profits at the auction does not prove that he is entitled to possession, he should only be required to pay the amount of the promise and restipulation by way of penalty.
(169) We should observe, however, that the unsuccessful bidder, without availing himself of the stipulation for the enjoyment of the profits, has a right to bring an action on the sale at auction, just as by the Cascellian or Secutorian action he can sue for the recovery of possession. A special action has been introduced for this purpose, which is called "fructuary," by means of which the plaintiff receives satisfaction for his judgment. This action is also called Secutorian, because it follows the advantage of the promise, but it is not also called Cascellian.
(170) But, for the reason that, after an interdict has been issued, some of the parties are unwilling to institute other proceedings under it, and on this account matters cannot be expedited, the Prætor made provision for a case of this kind, and introduced interdicts which we call "secondary"; because they are issued in the second place, under such circumstances. The force and effect of these is that he who does not institute further proceedings under the interdict, for example, one who does not forcibly eject the other party; or does not make a bid for the mesne profits of the property; or does not furnish security for the same; or does not participate in the promise, or defend the case; shall, if he is in possession of the property, restore it to his adversary; for if he is not in possession, he shall not use violence against the other party who is. Hence, although, otherwise, he might have been able to succeed under the interdict Uti Possidetis, if he could have complied with the other requirements imposed by it, and did not do so, he will still lose his case by means of a secondary interdict . . . . 
(171) For the purpose of avoiding vexatious litigation, the parties are sometimes deterred by pecuniary penalties, and sometimes by an oath which is imposed by the Prætor. In certain cases an action for double damages is brought against a defendant; for instance, in the collection of a judgment debt, or for money expended for a principal, or for unlawful damage to property, or where proceedings are instituted to collect legacies left by condemnation. In some instances, the deposit of a forfeit is permitted to be made, for example, in an action
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for a certain sum of money which has been lent, or to collect a debt formerly incurred. Where suit is brought to collect a loan, the amount is one-third of the sum in question; and in the case of the acknowledgment of a balance due, it is one-half.
(172) If no deposit was made as a forfeit, and the penalty of double damages was not imposed upon the party against whom the action was brought, and under it, from the beginning, no more than simple damages can be collected; the Prætor permits the plaintiff to require the defendant to swear that he has not made a denial for the purpose of annoyance. Hence, although the heirs and those who are considered to occupy the position of heirs, are not subject to a penalty, and women and wards are exempted from the penalty of a forfeit, the Prætor, nevertheless, orders them to be sworn.
(173) Moreover, in some cases from the beginning an action for more than simple damages will lie; as in an action of manifest theft a fourfold penalty, in non-manifest theft a double penalty, and when stolen property has been delivered to another a threefold penalty can be collected; for in these and some other instances, the suit is for more than simple damages, whether the party denies, or admits the claim.
(174) Vexatious litigation by the plaintiff is also restrained sometimes by the action for this purpose, sometimes by the contrary action, sometimes by oath, and sometimes by a counter stipulation.
(175) The action of vexatious litigation is applicable as against all other actions, and is for the tenth part of the claim, but for the third part when brought against a joint stipulator.
(176) The party sued, however, has the right to choose whether he will bring the action of vexatious litigation, or exact an oath from his adversary that he has not brought suit for the purpose of causing annoyance.
(177) The counter action, however, is only applicable in certain cases; for instance, where suit is brought for injury, and where one is brought against a woman on the ground that having been placed in possession on account of her unborn child, she transferred it fraudulently to some other party; or where anyone brings an action alleging that he has been placed in possession by the Prætor and is refused admission by another. In the case of an action of injury it is granted for the tenth part of the amount in dispute; in the two others for the fifth.
(178) But, the most severe restraint is that produced by the counter action. For no one is condemned in the action of vexatious litigation to pay the tenth part of the amount in dispute, unless he knew that he had no right to bring suit, and did so only for the purpose of annoying his adversary and relies for success rather upon the error or injustice of the judge, than on account of the merits of his cause; for vexatious litigation, like the crime of theft, depends upon intention. In the contrary action, however, the plaintiff will, under all circumstances, be condemned if he should not prevail in the former action, although he had good reason to believe that he had a right to bring suit.
(179) Still, in all those cases in which the contrary action can be brought, the action for vexatious litigation will also lie; but it is only
permitted to have recourse to one or the other of these proceedings. For which reason if an oath should be exacted that the action has not been brought for the purpose of annoyance, just as the action for vexatious litigation will not lie, so the contrary action should not be granted.
(180) The penalty of the counter engagement is usually required in certain cases, and, as in the contrary action the plaintiff is condemned under all circumstances if he should not gain his case, nor is it necessary for him to know that he had no good cause of action; so the penalty of the counter engagement must, under all circumstances, be paid by the plaintiff if he was unable to gain his case.
(181) Moreover, when anyone undergoes the penalty of the counter engagement neither the action for vexatious litigation can be brought against him, nor can the oath be administered, for it is clear that in cases of this kind the contrary action will not lie.
(182) In certain actions persons who are condemned become infamous, as in those of theft, robbery with violence, and injury, also in cases of partnership, trust, guardianship, mandate, and deposit. In actions of theft, robbery with violence, and injury, not only are the persons convicted branded with infamy, but also where a compromise is made, as is stated in the Edict of the Prætor; and this is proper, for it makes a great deal of difference whether anyone becomes a debtor on account of the commission of a crime, or under a contract. But while it is not expressly stated in any part of the Edict that a party is to become infamous, still he is said to be infamous who is forbidden to represent another in court, or to appoint, give, or have an agent or attorney, or to intervene as agent or attorney in a case.
(183) In conclusion, it should be noted that a person who desires to bring an action against another must summon him to appear in court, and if the party summoned does not appear, he will be liable to a penalty under the Edict of the Prætor. It is, however, not permitted to summon certain persons without the permission of the Prætor; for instance, parents, patrons, patronesses, and the children or parents of a patron or patroness; and anyone who violates this provision is liable to a penalty.
(184) However, when the adversary who has been summoned appears in court, and the business cannot be finished on the same day, the defendant must furnish security; that is to say he must promise to appear on some other designated day.
(185) Security in certain instances is simple, that is, given without sureties; and in others it is given with sureties; in still other instances, it is given by oath; and in some cases a reference is made to judges, that is to say, if the party does not appear, he may be immediately condemned to pay the amount of the security by the judges; and all these things are explained at length in the Edict of the Prætor.
(186) If proceedings have been instituted for the collection of a judgment, or for money expended for a principal, the amount of the security is equal to the value of the property in dispute. But in other cases the amount is that which the plaintiff swears that he has not brought suit for with the intention of causing annoyance; provided that the security is not more than half the sum in question, or more than a hundred thousand sesterces. Hence, if the property in dispute is valued at a hundred thousand sesterces, and the action is not for the collection of a judgment, or money expended for a principal, the amount of the security cannot be more than fifty thousand sesterces.
(187) Those persons whom we cannot summon to appear in court without the permission of the Prætor, we cannot compel to furnish security for their future appearance; unless the Prætor, after having been applied to, grants permission.
END OF THE INSTITUTES OF GAIUS.
Translated by S. P. Scott