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+Project Gutenberg's The Institutes of Justinian, by Caesar Flavius Justinian
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at www.gutenberg.org
+
+
+Title: The Institutes of Justinian
+
+Author: Caesar Flavius Justinian
+
+Translator: J.B. Moyle
+
+Release Date: June, 2004  [EBook #5983]
+Posting Date: April 11, 2009
+
+Language: English
+
+Character set encoding: ASCII
+
+*** START OF THIS PROJECT GUTENBERG EBOOK THE INSTITUTES OF JUSTINIAN ***
+
+
+
+
+Produced by Howard Sauertieg
+
+
+
+
+
+
+
+
+
+
+THE INSTITUTES OF JUSTINIAN
+
+Translated into English by J. B. Moyle, D.C.L. of Lincoln's Inn,
+Barrister-at-Law, Fellow and Late Tutor of New College, Oxford
+
+Fifth Edition (1913)
+
+
+
+PROOEMIVM
+
+In the name of Our Lord, Jesus Christ.
+
+The Emperor Caesar Flavius Justinian, conqueror of the Alamanni, the
+Goths, the Franks, the Germans, the Antes, the Alani, the Vandals, the
+Africans, pious, prosperous, renowned, victorious, and triumphant, ever
+august,
+
+To the youth desirous of studying the law:
+
+The imperial majesty should be armed with laws as well as glorified
+with arms, that there may be good government in times both of war and
+of peace, and the ruler of Rome may not only be victorious over his
+enemies, but may show himself as scrupulously regardful of justice as
+triumphant over his conquered foes.
+
+With deepest application and forethought, and by the blessing of God, we
+have attained both of these objects. The barbarian nations which we have
+subjugated know our valour, Africa and other provinces without number
+being once more, after so long an interval, reduced beneath the sway of
+Rome by victories granted by Heaven, and themselves bearing witness to
+our dominion. All peoples too are ruled by laws which we have either
+enacted or arranged. Having removed every inconsistency from the sacred
+constitutions, hitherto inharmonious and confused, we extended our care
+to the immense volumes of the older jurisprudence; and, like sailors
+crossing the mid-ocean, by the favour of Heaven have now completed a
+work of which we once despaired. When this, with God's blessing, had
+been done, we called together that distinguished man Tribonian, master
+and exquaestor of our sacred palace, and the illustrious Theophilus and
+Dorotheus, professors of law, of whose ability, legal knowledge, and
+trusty observance of our orders we have received many and genuine
+proofs, and especially commissioned them to compose by our authority and
+advice a book of Institutes, whereby you may be enabled to learn your
+first lessons in law no longer from ancient fables, but to grasp them by
+the brilliant light of imperial learning, and that your ears and minds
+may receive nothing useless or incorrect, but only what holds good in
+actual fact. And thus whereas in past time even the foremost of you were
+unable to read the imperial constitutions until after four years, you,
+who have been so honoured and fortunate as to receive both the beginning
+and the end of your legal teaching from the mouth of the Emperor, can
+now enter on the study of them without delay. After the completion
+therefore of the fifty books of the Digest or Pandects, in which all
+the earlier law has been collected by the aid of the said distinguished
+Tribonian and other illustrious and most able men, we directed the
+division of these same Institutes into four books, comprising the
+first elements of the whole science of law. In these the law previously
+obtaining has been briefly stated, as well as that which after becoming
+disused has been again brought to light by our imperial aid. Compiled
+from all the Institutes of our ancient jurists, and in particular from
+the commentaries of our Gaius on both the Institutes and the common
+cases, and from many other legal works, these Institutes were submitted
+to us by the three learned men aforesaid, and after reading
+and examining them we have given them the fullest force of our
+constitutions.
+
+Receive then these laws with your best powers and with the eagerness of
+study, and show yourselves so learned as to be encouraged to hope that
+when you have compassed the whole field of law you may have ability to
+govern such portion of the state as may be entrusted to you.
+
+Given at Constantinople the 21st day of November, in the third consulate
+of the Emperor Justinian, Father of his Country, ever august.
+
+
+
+
+BOOK I.
+
+     TITLES
+     I. Of Justice and Law
+     II. Of the law of nature, the law of nations,
+     and the civil law
+     III. Of the law of persons
+     IV. Of men free born
+     V. Of freedmen
+     VI. Of persons unable to manumit, and the
+     causes of their incapacity
+     VII. Of the repeal of the lex Fufia Caninia
+     VIII. Of persons independent or dependent
+     IX. Of paternal power
+     X. Of marriage
+     XI. Of adoptions
+     XII. Of the modes in which paternal power
+     is extinguished
+     XIII. Of guardianships
+     XIV. Who can be appointed guardians by will
+     XV. Of the statutory guardianship of agnates
+     XVI. Of loss of status
+     XVII. Of the statutory guardianship of patrons
+     XVIII. Of the statutory guardianship of parents
+     XIX. Of fiduciary guardianship
+     XX. Of Atilian guardians, and those appointed
+     under the lex Iulia et Titia
+     XXI. Of the authority of guardians
+     XXII. Of the modes in which guardianship
+     is terminated
+     XXIII. Of curators
+     XXIV. Of the security to be given by guardians
+     and curators
+     XXV. Of guardians' and curators' grounds
+     of exemption
+     XXVI. Of guardians or curators who are
+     suspected
+
+
+
+
+TITLE I. OF JUSTICE AND LAW
+
+Justice is the set and constant purpose which gives to every man his
+due.
+
+1 Jurisprudence is the knowledge of things divine and human, the science
+of the just and the unjust.
+
+2 Having laid down these general definitions, and our object being
+the exposition of the law of the Roman people, we think that the most
+advantageous plan will be to commence with an easy and simple path, and
+then to proceed to details with a most careful and scrupulous exactness
+of interpretation. Otherwise, if we begin by burdening the student's
+memory, as yet weak and untrained, with a multitude and variety of
+matters, one of two things will happen: either we shall cause him wholly
+to desert the study of law, or else we shall bring him at last, after
+great labour, and often, too, distrustful of his own powers (the
+commonest cause, among the young, of ill-success), to a point which
+he might have reached earlier, without such labour and confident in
+himself, had he been led along a smoother path.
+
+3 The precepts of the law are these: to live honestly, to injure no one,
+and to give every man his due.
+
+4 The study of law consists of two branches, law public, and law
+private. The former relates to the welfare of the Roman State; the
+latter to the advantage of the individual citizen. Of private law then
+we may say that it is of threefold origin, being collected from the
+precepts of nature, from those of the law of nations, or from those of
+the civil law of Rome.
+
+
+
+
+TITLE II. OF THE LAW OF NATURE, THE LAW OF NATIONS, AND THE CIVIL LAW
+
+1 The law of nature is that which she has taught all animals; a law not
+peculiar to the human race, but shared by all living creatures, whether
+denizens of the air, the dry land, or the sea. Hence comes the union
+of male and female, which we call marriage; hence the procreation and
+rearing of children, for this is a law by the knowledge of which we see
+even the lower animals are distinguished. The civil law of Rome, and
+the law of all nations, differ from each other thus. The laws of every
+people governed by statutes and customs are partly peculiar to itself,
+partly common to all mankind. Those rules which a state enacts for its
+own members are peculiar to itself, and are called civil law: those
+rules prescribed by natural reason for all men are observed by all
+peoples alike, and are called the law of nations. Thus the laws of
+the Roman people are partly peculiar to itself, partly common to all
+nations; a distinction of which we shall take notice as occasion offers.
+
+2 Civil law takes its name from the state wherein it binds; for
+instance, the civil law of Athens, it being quite correct to speak thus
+of the enactments of Solon or Draco. So too we call the law of the Roman
+people the civil law of the Romans, or the law of the Quirites; the law,
+that is to say, which they observe, the Romans being called Quirites
+after Quirinus. Whenever we speak, however, of civil law, without any
+qualification, we mean our own; exactly as, when 'the poet' is spoken
+of, without addition or qualification, the Greeks understand the great
+Homer, and we understand Vergil. But the law of nations is common to the
+whole human race; for nations have settled certain things for themselves
+as occasion and the necessities of human life required. For instance,
+wars arose, and then followed captivity and slavery, which are contrary
+to the law of nature; for by the law of nature all men from the
+beginning were born free. The law of nations again is the source of
+almost all contracts; for instance, sale, hire, partnership, deposit,
+loan for consumption, and very many others.
+
+3 Our law is partly written, partly unwritten, as among the Greeks.
+The written law consists of statutes, plebiscites, senatusconsults,
+enactments of the Emperors, edicts of the magistrates, and answers of
+those learned in the law.
+
+4 A statute is an enactment of the Roman people, which it used to make
+on the motion of a senatorial magistrate, as for instance a consul. A
+plebiscite is an enactment of the commonalty, such as was made on the
+motion of one of their own magistrates, as a tribune. The commonalty
+differs from the people as a species from its genus; for 'the people'
+includes the whole aggregate of citizens, among them patricians and
+senators, while the term 'commonalty' embraces only such citizens as are
+not patricians or senators. After the passing, however, of the statute
+called the lex Hortensia, plebiscites acquired for the first time the
+force of statutes.
+
+5 A senatusconsult is a command and ordinance of the senate, for when
+the Roman people had been so increased that it was difficult to assemble
+it together for the purpose of enacting statutes, it seemed right that
+the senate should be consulted instead of the people.
+
+6 Again, what the Emperor determines has the force of a statute, the
+people having conferred on him all their authority and power by the
+'lex regia,' which was passed concerning his office and authority.
+Consequently, whatever the Emperor settles by rescript, or decides in
+his judicial capacity, or ordains by edicts, is clearly a statute: and
+these are what are called constitutions. Some of these of course are
+personal, and not to be followed as precedents, since this is not the
+Emperor's will; for a favour bestowed on individual merit, or a
+penalty inflicted for individual wrongdoing, or relief given without
+a precedent, do not go beyond the particular person: though others are
+general, and bind all beyond a doubt.
+
+7 The edicts of the praetors too have no small legal authority, and
+these we are used to call the 'ius honorarium,' because those who occupy
+posts of honour in the state, in other words the magistrates, have given
+authority to this branch of law. The curule aediles also used to issue
+an edict relating to certain matters, which forms part of the ius
+honorarium.
+
+8 The answers of those learned in the law are the opinions and views of
+persons authorized to determine and expound the law; for it was of old
+provided that certain persons should publicly interpret the laws, who
+were called jurisconsults, and whom the Emperor privileged to give
+formal answers. If they were unanimous the judge was forbidden by
+imperial constitution to depart from their opinion, so great was its
+authority.
+
+9 The unwritten law is that which usage has approved: for ancient
+customs, when approved by consent of those who follow them, are like
+statute.
+
+10 And this division of the civil law into two kinds seems not
+inappropriate, for it appears to have originated in the institutions of
+two states, namely Athens and Lacedaemon; it having been usual in the
+latter to commit to memory what was observed as law, while the Athenians
+observed only what they had made permanent in written statutes.
+
+11 But the laws of nature, which are observed by all nations alike, are
+established, as it were, by divine providence, and remain ever fixed and
+immutable: but the municipal laws of each individual state are subject
+to frequent change, either by the tacit consent of the people, or by the
+subsequent enactment of another statute.
+
+12 The whole of the law which we observe relates either to persons, or
+to things, or to actions. And first let us speak of persons: for it is
+useless to know the law without knowing the persons for whose sake it
+was established.
+
+
+
+
+TITLE III. OF THE LAW OF PERSONS
+
+In the law of persons, then, the first division is into free men and
+slaves.
+
+1 Freedom, from which men are called free, is a man's natural power of
+doing what he pleases, so far as he is not prevented by force or law:
+
+2 slavery is an institution of the law of nations, against nature
+subjecting one man to the dominion of another.
+
+3 The name 'slave' is derived from the practice of generals to order the
+preservation and sale of captives, instead of killing them; hence they
+are also called mancipia, because they are taken from the enemy by the
+strong hand.
+
+4 Slaves are either born so, their mothers being slaves themselves; or
+they become so, and this either by the law of nations, that is to say
+by capture in war, or by the civil law, as when a free man, over twenty
+years of age, collusively allows himself to be sold in order that he may
+share the purchase money.
+
+5 The condition of all slaves is one and the same: in the conditions
+of free men there are many distinctions; to begin with, they are either
+free born, or made free.
+
+
+
+
+TITLE IV. OF MEN FREE BORN
+
+A freeborn man is one free from his birth, being the offspring of
+parents united in wedlock, whether both be free born or both made free,
+or one made free and the other free born. He is also free born if his
+mother be free even though his father be a slave, and so also is
+he whose paternity is uncertain, being the offspring of promiscuous
+intercourse, but whose mother is free. It is enough if the mother be
+free at the moment of birth, though a slave at that of conception: and
+conversely if she be free at the time of conception, and then becomes a
+slave before the birth of the child, the latter is held to be free born,
+on the ground that an unborn child ought not to be prejudiced by the
+mother's misfortune. Hence arose the question of whether the child of a
+woman is born free, or a slave, who, while pregnant, is manumitted, and
+then becomes a slave again before delivery. Marcellus thinks he is born
+free, for it is enough if the mother of an unborn infant is free at any
+moment between conception and delivery: and this view is right.
+
+1 The status of a man born free is not prejudiced by his being placed
+in the position of a slave and then being manumitted: for it has been
+decided that manumission cannot stand in the way of rights acquired by
+birth.
+
+
+
+
+TITLE V. OF FREEDMEN
+
+Those are freedmen, or made free, who have been manumitted from legal
+slavery. Manumission is the giving of freedom; for while a man is in
+slavery he is subject to the power once known as 'manus'; and from that
+power he is set free by manumission. All this originated in the law
+of nations; for by natural law all men were born free--slavery, and by
+consequence manumission, being unknown. But afterwards slavery came in
+by the law of nations; and was followed by the boon of manumission; so
+that though we are all known by the common name of 'man,' three classes
+of men came into existence with the law of nations, namely men free
+born, slaves, and thirdly freedmen who had ceased to be slaves.
+
+1 Manumission may take place in various ways; either in the holy church,
+according to the sacred constitutions, or by default in a fictitious
+vindication, or before friends, or by letter, or by testament or any
+other expression of a man's last will: and indeed there are many other
+modes in which freedom may be acquired, introduced by the constitutions
+of earlier emperors as well as by our own.
+
+2 It is usual for slaves to be manumitted by their masters at any time,
+even when the magistrate is merely passing by, as for instance while the
+praetor or proconsul or governor of a province is going to the baths or
+the theatre.
+
+3 Of freedmen there were formerly three grades; for those who were
+manumitted sometimes obtained a higher freedom fully recognised by the
+laws, and became Roman citizens; sometimes a lower form, becoming by
+the lex Iunia Norbana Latins; and sometimes finally a liberty still more
+circumscribed, being placed by the lex Aelia Sentia on the footing of
+enemies surrendered at discretion. This last and lowest class, however,
+has long ceased to exist, and the title of Latin also had become rare:
+and so in our goodness, which desires to raise and improve in every
+matter, we have amended this in two constitutions, and reintroduced the
+earlier usage; for in the earliest infancy of Rome there was but one
+simple type of liberty, namely that possessed by the manumitter, the
+only distinction possible being that the latter was free born, while
+the manumitted slave became a freedman. We have abolished the class of
+'dediticii,' or enemies surrendered at discretion, by our constitution,
+published among those our decisions, by which, at the suggestion of the
+eminent Tribonian, our quaestor, we have set at rest the disputes of
+the older law. By another constitution, which shines brightly among the
+imperial enactments, and suggested by the same quaestor, we have altered
+the position of the 'Latini Iuniani,' and dispensed with all the rules
+relating to their condition; and have endowed with the citizenship
+of Rome all freedmen alike, without regard to the age of the person
+manuumitted, and nature of the master's ownership, or the mode of
+manumission, in accordance with the earlier usage; with the addition of
+many new modes in which freedom coupled with the Roman citizenship, the
+only kind of freedom now known may be bestowed on slaves.
+
+
+
+
+TITLE VI. OF PERSONS UNABLE TO MANUMIT, AND THE CAUSES OF THEIR
+INCAPACITY
+
+In some cases, however, manumission is not permitted; for an owner who
+would defraud his creditors by an intended manumission attempts in vain
+to manumit, the act being made of no effect by the lex Aelia Sentia.
+
+1 A master, however, who is insolvent may institute one of his slaves
+heir in his will, conferring freedom on him at the same time, so that
+he may become free and his sole and necessary heir, provided no one else
+takes as heir under the will, either because no one else was instituted
+at all, or because the person instituted for some reason or other does
+not take the inheritance. And this was a judicious provision of the
+lex Aelia Sentia, for it was most desirable that persons in embarrassed
+circumstances, who could get no other heir, should have a slave as
+necessary heir to satisfy their creditors' claims, or that at least (if
+he did not do this) the creditors might sell the estate in the slave's
+name, so as to save the memory of the deceased from disrepute.
+
+2 The law is the same if a slave be instituted heir without liberty
+being expressly given him, this being enacted by our constitution in
+all cases, and not merely where the master is insolvent; so that in
+accordance with the modern spirit of humanity, institution will be
+equivalent to a gift of liberty; for it is unlikely, in spite of the
+omission of the grant of freedom, that one should have wished the person
+whom one has chosen as one's heir to remain a slave, so that one should
+have no heir at all.
+
+3 If a person is insolvent at the time of a manumission, or becomes so
+by the manumission itself, this is manumission in fraud of creditors.
+It is, however, now settled law, that the gift of liberty is not avoided
+unless the intention of the manumitter was fraudulent, even though his
+property is in fact insufficient to meet his creditors' claims; for men
+often hope and believe that they are better off than they really are.
+Consequently, we understand a gift of liberty to be avoided only when
+the creditors are defrauded both by the intention of the manumitter,
+and in fact: that is to say, by his property being insufficient to meet
+their claims.
+
+4 The same lex Aelia Sentia makes it unlawful for a master under twenty
+years of age to manumit, except in the mode of fictitious vindication,
+preceded by proof of some legitimate motive before the council.
+
+5 It is a legitimate motive of manumission if the slave to be manumitted
+be, for instance, the father or mother of the manumitter, or his son
+or daughter, or his natural brother or sister, or governor or nurse or
+teacher, or fosterson or fosterdaughter or fosterbrother, or a slave
+whom he wishes to make his agent, or a female slave whom he intends to
+marry; provided he marry her within six months, and provided that the
+slave intended as an agent is not less than seventeen years of age at
+the time of manumission.
+
+6 When a motive for manumission, whether true or false, has once been
+proved, the council cannot withdraw its sanction.
+
+7 Thus the lex Aelia Sentia having prescribed a certain mode of
+manumission for owners under twenty, it followed that though a person
+fourteen years of age could make a will, and therein institute an heir
+and leave legacies, yet he could not confer liberty on a slave until he
+had completed his twentieth year. But it seemed an intolerable hardship
+that a man who had the power of disposing freely of all his property
+by will should not be allowed to give his freedom to a single slave:
+wherefore we allow him to deal in his last will as he pleases with his
+slaves as with the rest of his property, and even to give them their
+liberty if he will. But liberty being a boon beyond price, for which
+very reason the power of manumission was denied by the older law to
+owners under twenty years of age, we have as it were selected a middle
+course, and permitted persons under twenty years of age to manumit their
+slaves by will, but not until they have completed their seventeenth
+and entered on their eighteenth year. For when ancient custom allowed
+persons of this age to plead on behalf of others, why should not their
+judgement be deemed sound enough to enable them to use discretion in
+giving freedom to their own slaves?
+
+
+
+
+TITLE VII. OF THE REPEAL OF THE LEX FUFIA CANINIA
+
+Moreover, by the lex Fufia Caninia a limit was placed on the number of
+slaves who could be manumitted by their master's testament: but this
+law we have thought fit to repeal, as an obstacle to freedom and to some
+extent invidious, for it was certainly inhuman to take away from a man
+on his deathbed the right of liberating the whole of his slaves, which
+he could have exercised at any moment during his lifetime, unless there
+were some other obstacle to the act of manumission.
+
+
+
+
+TITLE VIII. OF PERSONS INDEPENDENT OR DEPENDENT
+
+Another division of the law relating to persons classifies them as
+either independent or dependent. Those again who are dependent are in
+the power either of parents or of masters. Let us first then consider
+those who are dependent, for by learning who these are we shall at the
+same time learn who are independent. And first let us look at those who
+are in the power of masters.
+
+1 Now slaves are in the power of masters, a power recognised by the
+law of all nations, for all nations present the spectacle of masters
+invested with power of life and death over slaves; and to whatever is
+acquired through a slave his owner is entitled.
+
+2 But in the present day no one under our sway is permitted to
+indulge in excessive harshness towards his slaves, without some reason
+recognised by law; for, by a constitution of the Emperor Antoninus Pius,
+a man is made as liable to punishment for killing his own slave as for
+killing the slave of another person; and extreme severity on the part of
+masters is checked by another constitution whereby the same Emperor, in
+answer to inquiries from presidents of provinces concerning slaves who
+take refuge at churches or statues of the Emperor, commanded that on
+proof of intolerable cruelty a master should be compelled to sell his
+slaves on fair terms, so as to receive their value. And both of these
+are reasonable enactments, for the public interest requires that no one
+should make an evil use of his own property. The terms of the rescript
+of Antoninus to Aelius Marcianus are as follow:--'The powers of masters
+over their slaves ought to continue undiminished, nor ought any man to
+be deprived of his lawful rights; but it is the master's own interest
+that relief justly sought against cruelty, insufficient sustenance, or
+intolerable wrong, should not be denied. I enjoin you then to look
+into the complaints of the slaves of Iulius Sabinus, who have fled for
+protection to the statue of the Emperor, and if you find them treated
+with undue harshness or other ignominious wrong, order them to be sold,
+so that they may not again fall under the power of their master; and the
+latter will find that if he attempts to evade this my enactment, I shall
+visit his offence with severe punishment.'
+
+
+
+
+TITLE IX. OF PATERNAL POWER
+
+Our children whom we have begotten in lawful wedlock are in our power.
+
+1 Wedlock or matrimony is the union of male and female, involving the
+habitual intercourse of daily life.
+
+2 The power which we have over our children is peculiar to Roman
+citizens, and is found in no other nation.
+
+3 The offspring then of you and your wife is in your power, and so too
+is that of your son and his wife, that is to say, your grandson and
+granddaughter, and so on. But the offspring of your daughter is not in
+your power, but in that of its own father.
+
+
+
+
+TITLE X. OF MARRIAGE
+
+Roman citizens are joined together in lawful wedlock when they are
+united according to law, the man having reached years of puberty, and
+the woman being of a marriageable age, whether they be independent or
+dependent: provided that, in the latter case, they must have the consent
+of the parents in whose power they respectively are, the necessity of
+which, and even of its being given before the marriage takes place, is
+recognised no less by natural reason than by law. Hence the question has
+arisen, can the daughter or son of a lunatic lawfully contract marriage?
+and as the doubt still remained with regard to the son, we decided that,
+like the daughter, the son of a lunatic might marry even without the
+intervention of his father, according to the mode prescribed by our
+constitution.
+
+1 It is not every woman that can be taken to wife: for marriage with
+certain classes of persons is forbidden. Thus, persons related as
+ascendant and descendant are incapable of lawfully intermarrying; for
+instance, father and daughter, grandfather and granddaughter, mother and
+son, grandmother and grandson, and so on ad infinitum; and the union of
+such persons is called criminal and incestuous. And so absolute is
+the rule, that persons related as ascendant and descendant merely by
+adoption are so utterly prohibited from intermarriage that dissolution
+of the adoption does not dissolve the prohibition: so that an
+adoptive daughter or granddaughter cannot be taken to wife even after
+emancipation.
+
+2 Collateral relations also are subject to similar prohibitions, but
+not so stringent. Brother and sister indeed are prohibited from
+intermarriage, whether they are both of the same father and mother, or
+have only one parent in common: but though an adoptive sister cannot,
+during the subsistence of the adoption, become a man's wife, yet if the
+adoption is dissolved by her emancipation, or if the man is emancipated,
+there is no impediment to their intermarriage. Consequently, if a man
+wished to adopt his son-in-law, he ought first to emancipate his
+daughter: and if he wished to adopt his daughter-in-law, he ought first to
+emancipate his son.
+
+3 A man may not marry his brother's or his sister's daughter, or even
+his or her granddaughter, though she is in the fourth degree; for when
+we may not marry a person's daughter, we may not marry the granddaughter
+either. But there seems to be no obstacle to a man's marrying the
+daughter of a woman whom his father has adopted, for she is no relation
+of his by either natural or civil law.
+
+4 The children of two brothers or sisters, or of a brother and sister,
+may lawfully intermarry.
+
+5 Again, a man may not marry his father's sister, even though the tie
+be merely adoptive, or his mother's sister: for they are considered to
+stand in the relation of ascendants. For the same reason too a man may
+not marry his great-aunt either paternal or maternal.
+
+6 Certain marriages again are prohibited on the ground of affinity, or
+the tie between a man or his wife and the kin of the other respectively.
+For instance, a man may not marry his wife's daughter or his son's wife,
+for both are to him in the position of daughters. By wife's daughter
+or son's wife we must be understood to mean persons who have been thus
+related to us; for if a woman is still your daughterinlaw, that is,
+still married to your son, you cannot marry her for another reason,
+namely, because she cannot be the wife of two persons at once. So too
+if a woman is still your stepdaughter, that is, if her mother is still
+married to you, you cannot marry her for the same reason, namely,
+because a man cannot have two wives at the same time.
+
+7 Again, it is forbidden for a man to marry his wife's mother or his
+father's wife, because to him they are in the position of a mother,
+though in this case too our statement applies only after the
+relationship has finally terminated; otherwise, if a woman is still your
+stepmother, that is, is married to your father, the common rule of law
+prevents her from marrying you, because a woman cannot have two husbands
+at the same time: and if she is still your wife's mother, that is, if
+her daughter is still married to you, you cannot marry her because you
+cannot have two wives at the same time.
+
+8 But a son of the husband by another wife, and a daughter of the wife
+by another husband, and vice versa, can lawfully intermarry, even though
+they have a brother or sister born of the second marriage.
+
+9 If a woman who has been divorced from you has a daughter by a second
+husband, she is not your stepdaughter, but Iulian is of opinion that you
+ought not to marry her, on the ground that though your son's betrothed
+is not your daughterinlaw, nor your father's betrothed you stepmother,
+yet it is more decent and more in accordance with what is right to
+abstain from intermarrying with them.
+
+10 It is certain that the rules relating to the prohibited degrees of
+marriage apply to slaves: supposing, for instance, that a father and
+daughter, or a brother and sister, acquired freedom by manumission.
+
+11 There are also other persons who for various reasons are forbidden to
+intermarry, a list of whom we have permitted to be inserted in the books
+of the Digest or Pandects collected from the older law.
+
+12 Alliances which infringe the rules here stated do not confer the
+status of husband and wife, nor is there in such case either wedlock or
+marriage or dowry. Consequently children born of such a connexion
+are not in their father's power, but as regards the latter are in
+the position of children born of promiscuous intercourse, who, their
+paternity being uncertain, are deemed to have no father at all, and
+who are called bastards, either from the Greek word denoting illicit
+intercourse, or because they are fatherless. Consequently, on the
+dissolution of such a connexion there can be no claim for return of
+dowry. Persons who contract prohibited marriages are subjected to
+penalties set forth in our sacred constitutions.
+
+13 Sometimes it happens that children who are not born in their father's
+power are subsequently brought under it. Such for instance is the case
+of a natural son made subject to his father's power by being inscribed a
+member of the curia; and so too is that of a child of a free woman with
+whom his father cohabited, though he could have lawfully married her,
+who is subjected to the power of his father by the subsequent execution
+of a dowry deed according to the terms of our constitution: and the same
+boon is in effect bestowed by that enactment on children subsequently
+born of the same marriage.
+
+
+
+
+TITLE XI. OF ADOPTIONS
+
+Not only natural children are subject, as we said, to paternal power,
+but also adoptive children.
+
+1 Adoption is of two forms, being effected either by rescript of the
+Emperor, or by the judicial authority of a magistrate. The first is the
+mode in which we adopt independent persons, and this form of adoption
+is called adrogation: the second is the mode in which we adopt a person
+subject to the power of an ascendant, whether a descendant in the first
+degree, as a son or daughter, or in a remoter degree, as a grandson,
+granddaughter, great-grandson, or great-granddaughter.
+
+2 But by the law, as now settled by our constitution, when a child in
+power is given in adoption to a stranger by his natural father, the
+power of the latter is not extinguished; no right passes to the adoptive
+father, nor is the person adopted in his power, though we have given a
+right of succession in case of the adoptive father dying intestate.
+But if the person to whom the child is given in adoption by its natural
+father is not a stranger, but the child's own maternal grandfather, or,
+supposing the father to have been emancipated, its paternal grandfather,
+or its great-grandfather paternal or maternal, in this case, because the
+rights given by nature and those given by adoption are vested in one
+and the same person, the old power of the adoptive father is left
+unimpaired, the strength of the natural bond of blood being augmented by
+the civil one of adoption, so that the child is in the family and
+power of an adoptive father, between whom and himself there existed
+antecedently the relationship described.
+
+3 When a child under the age of puberty is adopted by rescript of
+the Emperor, the adrogation is only permitted after cause shown, the
+goodness of the motive and the expediency of the step for the pupil
+being inquired into. The adrogation is also made under certain
+conditions; that is to say, the adrogator has to give security to a
+public agent or attorney of the people, that if the pupil should die
+within the age of puberty, he will return his property to the persons
+who would have succeeded him had no adoption taken place. The adoptive
+father again may not emancipate them unless upon inquiry they are found
+deserving of emancipation, or without restoring them their property.
+Finally, if he disinherits him at death, or emancipates him in his
+lifetime without just cause, he is obliged to leave him a fourth of
+his own property, besides that which he brought him when adopted, or by
+subsequent acquisition.
+
+4 It is settled that a man cannot adopt another person older than
+himself, for adoption imitates nature, and it would be unnatural for a
+son to be older than his father. Consequently a man who desires either
+to adopt or to adrogate a son ought to be older than the latter by the
+full term of puberty, or eighteen years.
+
+5 A man may adopt a person as grandson or granddaughter, or as
+great-grandson or great-granddaughter, and so on, without having a son at
+all himself; 6 and similarly he may adopt another man's son as grandson,
+or another man's grandson as son.
+
+7 If he wishes to adopt some one as grandson, whether as the son of an
+adoptive son of his own, or of a natural son who is in his power, the
+consent of this son ought to be obtained, lest a family heir be thrust
+upon him against his will: but on the other hand, if a grandfather
+wishes to give a grandson by a son in adoption to some one else, the
+son's consent is not requisite.
+
+8 An adoptive child is in most respects in the same position, as regards
+the father, as a natural child born in lawful wedlock. Consequently
+a man can give in adoption to another a person whom he has adopted by
+imperial rescript, or before the praetor or governor of a province,
+provided that in this latter case he was not a stranger (i.e. was a
+natural descendant) before he adopted him himself.
+
+9 Both forms of adoption agree in this point, that persons incapable
+of procreation by natural impotence are permitted to adopt, whereas
+castrated persons are not allowed to do so.
+
+10 Again, women cannot adopt, for even their natural children are not
+subject to their power; but by the imperial clemency they are enabled to
+adopt, to comfort them for the loss of children who have been taken from
+them.
+
+11 It is peculiar to adoption by imperial rescript, that children in the
+power of the person adrogated, as well as their father, fall under the
+power of the adrogator, assuming the position of grandchildren. Thus
+Augustus did not adopt Tiberius until Tiberius had adopted Germanicus,
+in order that the latter might become his own grandson directly the
+second adoption was made.
+
+12 The old writers record a judicious opinion contained in the writings
+of Cato, that the adoption of a slave by his master is equivalent to
+manumission. In accordance with this we have in our wisdom ruled by a
+constitution that a slave to whom his master gives the title of son by
+the solemn form of a record is thereby made free, although this is not
+sufficient to confer on him the rights of a son.
+
+
+
+
+TITLE XII. OF THE MODES IN WHICH PATERNAL POWER IS EXTINGUISHED
+
+Let us now examine the modes in which persons dependent on a superior
+become independent. How slaves are freed from the power of their
+masters can be gathered from what has already been said respecting their
+manumission. Children under paternal power become independent at the
+parent's death, subject, however, to the following distinction.
+The death of a father always releases his sons and daughters from
+dependence; the death of a grandfather releases his grandchildren from
+dependence only provided that it does not subject them to the power of
+their father. Thus, if at the death of the grandfather the father is
+alive and in his power, the grandchildren, after the grandfather's
+death, are in the power of the father; but if at the time of the
+grandfather's death the father is dead, or not subject to the
+grandfather, the grandchildren will not fall under his power, but become
+independent.
+
+1 As deportation to an island for some penal offence entails loss of
+citizenship, such removal of a man from the list of Roman citizens has,
+like his death, the effect of liberating his children from his power;
+and conversely, the deportation of a person subject to paternal power
+terminates the power of the parent. In either case, however, if the
+condemned person is pardoned by the grace of the Emperor, he recovers
+all his former rights.
+
+2 Relegation to an island does not extinguish paternal power, whether it
+is the parent or the child who is relegated.
+
+3 Again, a father's power is extinguished by his becoming a 'slave of
+punishment,' for instance, by being condemned to the mines or exposed to
+wild beasts.
+
+4 A person in paternal power does not become independent by entering
+the army or becoming a senator, for military service or consular
+dignity does not set a son free from the power of his father. But by
+our constitution the supreme dignity of the patriciate frees a son from
+power immediately on the receipt of the imperial patent; for who would
+allow anything so unreasonable as that, while a father is able by
+emancipation to release his son from the tie of his power, the imperial
+majesty should be unable to release from dependence on another the man
+whom it has selected as a father of the State? 5 Again, capture of the
+father by the enemy makes him a slave of the latter; but the status
+of his children is suspended by his right of subsequent restoration by
+postliminium; for on escape from captivity a man recovers all his former
+rights, and among them the right of paternal power over his children,
+the law of postliminium resting on a fiction that the captive has never
+been absent from the state. But if he dies in captivity the son is
+reckoned to have been independent from the moment of his father's
+capture. So too, if a son or a grandson is captured by the enemy, the
+power of his ascendant is provisionally suspended, though he may again
+be subjected to it by postliminium. This term is derived from 'limen'
+and 'post,' which explains why we say that the person who has been
+captured by the enemy and has come back into our territories has
+returned by postliminium: for just as the threshold forms the boundary
+of a house, so the ancients represented the boundaries of the empire as
+a threshold; and this is also the origin of the term 'limes, signifying
+a kind of end and limit. Thus postliminium means that the captive
+returns by the same threshold at which he was lost. A captive who is
+recovered after a victory over the enemy is deemed to have returned by
+postliminium.
+
+6 Emancipation also liberates children from the power of the parent.
+Formerly it was effected either by the observance of an old form
+prescribed by statute by which the son was fictitiously sold and then
+manumitted, or by imperial rescript. Our forethought, however, has
+amended this by a constitution, which has abolished the old fictitious
+form, and enabled parents to go directly to a competent judge or
+magistrate, and in his presence release their sons or daughters,
+grandsons or granddaughters, and so on, from their power. After this,
+the father has by the praetor's edict the same rights over the property
+of the emancipated child as a patron has over the property of his
+freedman: and if at the time of emancipation the child, whether son or
+daughter, or in some remoter degree of relationship, is beneath the age
+of puberty, the father becomes by the emancipation his or her guardian.
+
+7 It is to be noted, however, that a grandfather who has both a son,
+and by that son a grandson or granddaughter, in his power, may either
+release the son from his power and retain the grandson or granddaughter,
+or emancipate both together; and a great-grandfather has the same
+latitude of choice.
+
+8 Again, if a father gives a son whom he has in his power in adoption
+to the son's natural grandfather or great-grandfather, in accordance
+with our constitution on this subject, that is to say, by declaring
+his intention, before a judge with jurisdiction in the matter, in the
+official records, and in the presence and with the consent of the person
+adopted, the natural father's power is thereby extinguished, and passes
+to the adoptive father, adoption by whom under these circumstances
+retains, as we said, all its old legal consequences.
+
+9 It is to be noted, that if your daughterinlaw conceives by your son,
+and you emancipate or give the latter in adoption during her pregnancy,
+the child when born will be in your power; but if the child is conceived
+after its father's emancipation or adoption, it is in the power of its
+natural father or its adoptive grandfather, as the case may be.
+
+10 Children, whether natural or adoptive, are only very rarely able to
+compel their parent to release them from his power.
+
+
+
+
+TITLE XIII. OF GUARDIANSHIPS
+
+Let us now pass on to another classification of persons. Persons
+not subject to power may still be subject either to guardians or to
+curators, or may be exempt from both forms of control. We will first
+examine what persons are subject to guardians and curators, and thus
+we shall know who are exempt from both kinds of control. And first of
+persons subject to guardianship or tutelage.
+
+1 Guardianship, as defined by Servius, is authority and control over a
+free person, given and allowed by the civil law, in order to protect one
+too young to defend himself:
+
+2 and guardians are those persons who possess this authority and
+control, their name being derived from their very functions; for they
+are called guardians as being protectors and defenders, just as those
+entrusted with the care of sacred buildings are called 'aeditui.'
+
+3 The law allows a parent to appoint guardians in his will for those
+children in his power who have not attained the age of puberty, without
+distinction between sons and daughters; but a grandson or granddaughter
+can receive a testamentary guardian only provided that the death of the
+testator does not bring them under the power of their own father.
+Thus, if your son is in your power at the time of your death, your
+grandchildren by him cannot have a guardian given them by your will,
+although they are in your power, because your death leaves them in the
+power of their father.
+
+4 And as in many other matters afterborn children are treated on the
+footing of children born before the execution of the will, so it is
+ruled that afterborn children, as well as children born before the will
+was made, may have guardians therein appointed to them, provided that
+if born in the testator's lifetime they would be family heirs and in his
+power.
+
+5 If a testamentary guardian be given by a father to his emancipated
+son, he must be approved by the governor in all cases, though inquiry
+into the case is unnecessary.
+
+
+
+
+TITLE XIV. WHO CAN BE APPOINTED GUARDIANS BY WILL
+
+1 Persons who are in the power of others may be appointed testamentary
+guardians no less than those who are independent; and a man can also
+validly appoint one of his own slaves as testamentary guardian, giving
+him at the same time his liberty; and even in the absence of express
+manumission his freedom is to be presumed to have been tacitly conferred
+on him, whereby his appointment becomes a valid act, although of course
+it is otherwise if the testator appointed him guardian in the erroneous
+belief that he was free. The appointment of another man's slave as
+guardian, without any addition or qualification, is void, though valid
+if the words 'when he shall be free' are added: but this latter form is
+ineffectual if the slave is the testator's own, the appointment being
+void from the beginning.
+
+2 If a lunatic or minor is appointed testamentary guardian, he cannot
+act until, if a lunatic, he recovers his faculties, and, if a minor, he
+attains the age of twentyfive years.
+
+3 There is no doubt that a guardian may be appointed for and from a
+certain time, or conditionally, or before the institution of the heir.
+
+4 A guardian cannot, however, be appointed for a particular matter or
+business, because his duties relate to the person, and not merely to a
+particular business or matter.
+
+5 If a man appoints a guardian to his sons or daughters, he is held to
+have intended them also for such as may be afterborn, for the latter
+are included in the terms son and daughter. In the case of grandsons,
+a question may arise whether they are implicitly included in an
+appointment of guardians to sons; to which we reply, that they are
+included in an appointment of guardians if the term used is 'children,'
+but not if it is 'sons': for the words son and grandson have quite
+different meanings. Of course an appointment to afterborn children
+includes all children, and not sons only.
+
+
+
+
+TITLE XV. OF THE STATUTORY GUARDIANSHIP OF AGNATES
+
+In default of a testamentary guardian, the statute of the Twelve Tables
+assigns the guardianship to the nearest agnates, who are hence called
+statutory guardians.
+
+1 Agnates are persons related to one another by males, that is, through
+their male ascendants; for instance, a brother by the same father, a
+brother's son, or such son's son, a father's brother, his son or son's
+son. But persons related only by blood through females are not agnates,
+but merely cognates. Thus the son of your father's sister is no agnate
+of yours, but merely your cognate, and vice versa; for children are
+member's of their father's family, and not of your mother's.
+
+2 It was said that the statute confers the guardianship, in case
+of intestacy, on the nearest agnates; but by intestacy here must be
+understood not only complete intestacy of a person having power to
+appoint a testamentary guardian, but also the mere omission to make
+such appointment, and also the case of a person appointed testamentary
+guardian dying in the testator's lifetime.
+
+3 Loss of status of any kind ordinarily extinguishes rights by agnation,
+for agnation is a title of civil law. Not every kind of loss of status,
+however, affects rights by cognation; because civil changes cannot
+affect rights annexed to a natural title to the same extent that they
+can affect those annexed to a civil one.
+
+
+
+
+TITLE XVI. OF LOSS OF STATUS
+
+Loss of status, or change in one's previous civil rights, is of three
+orders, greatest, minor or intermediate, and least.
+
+1 The greatest loss of status is the simultaneous loss of citizenship
+and freedom, exemplified in those persons who by a terrible sentence are
+made 'slaves of punishment,' in freedmen condemned for ingratitude to
+their patrons, and in those who allow themselves to be sold in order to
+share the purchase money when paid.
+
+2 Minor or intermediate loss of status is loss of citizenship
+unaccompanied by loss of liberty, and is incident to interdiction of
+fire and water and to deportation to an island.
+
+3 The least loss of status occurs when citizenship and freedom are
+retained, but a man's domestic position is altered, and is exemplified
+by adrogation and emancipation.
+
+4 A slave does not suffer loss of status by being manumitted, for while
+a slave he had no civil rights:
+
+5 and where the change is one of dignity, rather than of civil rights,
+there is no loss of status; thus it is no loss of status to be removed
+from the senate.
+
+6 When it was said that rights by cognation are not affected by loss of
+status, only the least loss of status was meant; by the greatest loss
+of status they are destroyed--for instance, by a cognate's becoming
+a slave--and are not recovered even by subsequent manumission. Again,
+deportation to an island, which entails minor or intermediate loss of
+status, destroys rights by cognation.
+
+7 When agnates are entitled to be guardians, it is not all who are so
+entitled, but only those of the nearest degree, though if all are in the
+same degree, all are entitled.
+
+
+
+
+TITLE XVII. OF THE STATUTORY GUARDIANSHIP OF PATRONS
+
+The same statute of the Twelve Tables assigns the guardianship of
+freedmen and freedwomen to the patron and his children, and this
+guardianship, like that of agnates, is called statutory guardianship;
+not that it is anywhere expressly enacted in that statute, but because
+its interpretation by the jurists has procured for it as much reception
+as it could have obtained from express enactment: the fact that the
+inheritance of a freedman or freedwoman, when they die intestate, was
+given by the statute to the patron and his children, being deemed a
+proof that they were intended to have the guardianship also, partly
+because in dealing with agnates the statute coupled guardianship with
+succession, and partly on the principle that where the advantage of
+the succession is, there, as a rule, ought too to be the burden of the
+guardianship. We say 'as a rule,' because if a slave below the age of
+puberty is manumitted by a woman, though she is entitled, as patroness,
+to the succession, another person is guardian.
+
+
+
+
+TITLE XVIII. OF THE STATUTORY GUARDIANSHIP OF PARENTS
+
+The analogy of the patron guardian led to another kind of socalled
+statutory guardianship, namely that of a parent over a son or daughter,
+or a grandson or granddaughter by a son, or any other descendant through
+males, whom he emancipates below the age of puberty: in which case he
+will be statutory guardian.
+
+
+
+
+TITLE XIX. OF FIDUCIARY GUARDIANSHIP
+
+There is another kind of guardianship known as fiduciary guardianship,
+which arises in the following manner. If a parent emancipates a son or
+daughter, a grandson or granddaughter, or other descendant while under
+the age of puberty, he becomes their statutory guardian: but if at his
+death he leaves male children, they become fiduciary guardians of their
+own sons, or brothers and sisters, or other relatives who had been thus
+emancipated. But on the decease of a patron who is statutory guardian
+his children become statutory guardians also; for a son of a deceased
+person, supposing him not to have been emancipated during his father's
+lifetime, becomes independent at the latter's death, and does not
+fall under the power of his brothers, nor, consequently, under their
+guardianship; whereas a freedman, had he remained a slave, would at
+his master's death have become the slave of the latter's children. The
+guardianship, however, is not cast on these persons unless they are of
+full age, which indeed has been made a general rule in guardianship and
+curatorship of every kind by our constitution.
+
+
+
+
+TITLE XX. OF ATILIAN GUARDIANS, AND THOSE APPOINTED UNDER THE LEX IULIA
+ET TITIA
+
+Failing every other kind of guardian, at Rome one used to be appointed
+under the lex Atilia by the praetor of the city and the majority of the
+tribunes of the people; in the provinces one was appointed under the lex
+Iulia et Titia by the president of the province.
+
+1 Again, on the appointment of a testamentary guardian subject to a
+condition, or on an appointment limited to take effect after a certain
+time, a substitute could be appointed under these statutes during the
+pendency of the condition, or until the expiration of the term: and
+even if no condition was attached to the appointment of a testamentary
+guardian, a temporary guardian could be obtained under these statutes
+until the succession had vested. In all these cases the office of the
+guardian so appointed determined as soon as the condition was fulfilled,
+or the term expired, or the succession vested in the heir.
+
+2 On the capture of a guardian by the enemy, the same statutes regulated
+the appointment of a substitute, who continued in office until the
+return of the captive; for if he returned, he recovered the guardianship
+by the law of postliminium.
+
+3 But guardians have now ceased to be appointed under these statutes,
+the place of the magistrates directed by them to appoint being taken,
+first, by the consuls, who began to appoint guardians to pupils of
+either sex after inquiry into the case, and then by the praetors, who
+were substituted for the consuls by the imperial constitutions; for
+these statutes contained no provisions as to security to be taken from
+guardians for the safety of their pupils' property, or compelling them
+to accept the office in case of disinclination.
+
+4 Under the present law, guardians are appointed at Rome by the
+prefect of the city, and by the praetor when the case falls within his
+jurisdiction; in the provinces they are appointed, after inquiry, by
+the governor, or by inferior magistrates at the latter's behest if the
+pupil's property is of no great value.
+
+5 By our constitution, however, we have done away with all difficulties
+of this kind relating to the appointing person, and dispensed with the
+necessity of waiting for an order from the governor, by enacting that if
+the property of the pupil or adult does not exceed five hundred solidi,
+guardians or curators shall be appointed by the officers known as
+defenders of the city, along with the holy bishop of the place, or in
+the presence of other public persons, or by the magistrates, or by the
+judge of the city of Alexandria; security being given in the amounts
+required by the constitution, and those who take it being responsible if
+it be insufficient.
+
+6 The wardship of children below the age of puberty is in accordance
+with the law of nature, which prescribes that persons of immature years
+shall be under another's guidance and control.
+
+7 As guardians have the management of their pupils' business, they are
+liable to be sued on account of their administration as soon as the
+pupil attains the age of puberty.
+
+
+
+
+TITLE XXI. OF THE AUTHORITY OF GUARDIANS
+
+In some cases a pupil cannot lawfully act without the authority of
+his guardian, in others he can. Such authority, for instance, is not
+necessary when a pupil stipulates for the delivery of property, though
+it is otherwise where he is the promisor; for it is an established rule
+that the guardian's authority is not necessary for any act by which the
+pupil simply improves his own position, though it cannot be dispensed
+with where he proposes to make it worse. Consequently, unless the
+guardian authorizes all transactions generating bilateral obligations,
+such as sale, hire, agency, and deposit, the pupil is not bound,
+though he can compel the other contracting party to discharge his own
+obligation.
+
+1 Pupils, however, require their guardian's authority before they can
+enter on an inheritance, demand the possession of goods, or accept an
+inheritance by way of trust, even though such act be advantageous to
+them, and involves no chance of loss.
+
+2 If the guardian thinks the transaction will be beneficial to his
+pupil, his authority should be given presently and on the spot.
+Subsequent ratification, or authority given by letter, has no effect.
+
+3 In case of a suit between guardian and pupil, as the former cannot
+lawfully authorize an act in which he is personally concerned or
+interested, a curator is now appointed, in lieu of the old praetorian
+guardian, with whose cooperation the suit is carried on, his office
+determining as soon as it is decided.
+
+
+
+
+TITLE XXII. OF THE MODES IN WHICH GUARDIANSHIP IS TERMINATED
+
+Pupils of either sex are freed from guardianship when they reach the age
+of puberty, which the ancients were inclined to determine, in the
+case of males, not only by age, but also by reference to the physical
+development of individuals. Our majesty, however, has deemed it not
+unworthy of the purity of our times to apply in the case of males also
+the moral considerations which, even among the ancients, forbade in the
+case of females as indecent the inspection of the person. Consequently
+by the promulgation of our sacred constitution we have enacted that
+puberty in males shall be considered to commence immediately on
+the completion of the fourteenth year, leaving unaltered the rule
+judiciously laid down by the ancients as to females, according to which
+they are held fit for marriage after completing their twelfth year.
+
+1 Again, tutelage is terminated by adrogation or deportation of the
+pupil before he attains the age of puberty, or by his being reduced to
+slavery or taken captive by the enemy.
+
+2 So too if a testamentary guardian be appointed to hold office until
+the occurrence of a condition, on this occurrence his office determines.
+
+3 Similarly tutelage is terminated by the death either of pupil or of
+guardian.
+
+4 If a guardian suffers such a loss of status as entails loss of either
+liberty or citizenship, his office thereby completely determines. It is,
+however, only the statutory kind of guardianship which is destroyed by
+a guardian's undergoing the least loss of status, for instance, by his
+giving himself in adoption. Tutelage is in every case put an end to by
+the pupil's suffering loss of status, even of the lowest order.
+
+5 Testamentary guardians appointed to serve until a certain time lay
+down their office when that time arrives.
+
+6 Finally, persons cease to be guardians who are removed from their
+office on suspicion, or who are enabled to lay down the burden of
+the tutelage by a reasonable ground of excuse, according to the rules
+presently stated.
+
+
+
+
+TITLE XXIII. OF CURATORS
+
+Males, even after puberty, and females after reaching marriageable
+years, receive curators until completing their twenty-fifth year,
+because, though past the age fixed by law as the time of puberty, they
+are not yet old enough to administer their own affairs.
+
+1 Curators are appointed by the same magistrates who appoint guardians.
+They cannot legally be appointed by will, though such appointment, if
+made, is usually confirmed by an order of the praetor or governor of the
+province.
+
+2 A person who has reached the age of puberty cannot be compelled
+to have a curator, except for the purpose of conducting a suit: for
+curators, unlike guardians, can be appointed for a particular matter.
+
+3 Lunatics and prodigals, even though more than twentyfive years of age,
+are by the statute of the Twelve Tables placed under their agnates as
+curators; but now, as a rule, curators are appointed for them at Rome
+by the prefect of the city or praetor, and in the provinces by the
+governor, after inquiry into the case.
+
+4 Curators should also be given to persons of weak mind, to the deaf,
+the dumb, and those suffering from chronic disease, because they are not
+competent to manage their own affairs.
+
+5 Sometimes even pupils have curators, as, for instance, when a
+statutory guardian is unfit for his office: for if a pupil already has
+one guardian, he cannot have another given him. Again, if a testamentary
+guardian, or one appointed by the praetor or governor, is not a good man
+of business, though perfectly honest in his management of the pupil's
+affairs, it is usual for a curator to be appointed to act with
+him. Again, curators are usually appointed in the room of guardians
+temporarily excused from the duties of their office.
+
+6 If a guardian is prevented from managing his pupil's affairs by
+illhealth or other unavoidable cause, and the pupil is absent or an
+infant, the praetor or governor of the province will, at the guardian's
+risk, appoint by decree a person selected by the latter to act as agent
+of the pupil.
+
+
+
+
+TITLE XXIV. OF THE SECURITY TO BE GIVEN BY GUARDIANS AND CURATORS
+
+To prevent the property of pupils and of persons under curators from
+being wasted or diminished by their curators or guardians the
+praetor provides for security being given by the latter against
+maladministration. This rule, however, is not without exceptions, for
+testamentary guardians are not obliged to give security, the testator
+having had full opportunities of personally testing their fidelity
+and carefulness, and guardians and curators appointed upon inquiry are
+similarly exempted, because they have been expressly chosen as the best
+men for the place.
+
+1 If two or more are appointed by testament, or by a magistrate upon
+inquiry, any one of them may offer security for indemnifying the pupil
+or person to whom he is curator against loss, and be preferred to his
+colleague, in order that he may either obtain the sole administration,
+or else induce his colleague to offer larger security than himself, and
+so become sole administrator by preference. Thus he cannot directly call
+upon his colleague to give security; he ought to offer it himself, and
+so give his colleague the option of receiving security on the one hand,
+or of giving it on the other. If none of them offer security, and the
+testator left directions as to which was to administer the property,
+this person must undertake it: in default of this, the office is cast
+by the praetor's edict on the person whom the majority of guardians or
+curators shall choose. If they cannot agree, the praetor must interpose.
+The same rule, authorizing a majority to elect one to administer the
+property, is to be applied where several are appointed after inquiry by
+a magistrate.
+
+2 It is to be noted that, besides the liability of guardians and
+curators to their pupils, or the persons for whom they act, for the
+management of their property, there is a subsidiary action against the
+magistrate accepting the security, which may be resorted to where
+all other remedies prove inadequate, and which lies against those
+magistrates who have either altogether omitted to take security from
+guardians or curators, or taken it to an insufficient amount. According
+to the doctrines stated by the jurists, as well as by imperial
+constitutions, this action may be brought against the magistrate's heirs
+as well as against him personally;
+
+3 and these same constitutions ordain that guardians or curators who
+make default in giving security may be compelled to do so by legal
+distraint of their goods.
+
+4 This action, however, will not lie against the prefect of the city,
+the praetor, or the governor of a province, or any other magistrate
+authorized to appoint guardians, but only against those to whose usual
+duties the taking of security belongs.
+
+
+
+
+TITLE XXV. OF GUARDIANS' AND CURATORS' GROUNDS OF EXEMPTION
+
+There are various grounds on which persons are exempted from serving the
+office of guardian or curator, of which the most common is their having
+a certain number of children, whether in power or emancipated. If, that
+is to say, a man has, in Rome, three children living, in Italy four, or
+in the provinces five, he may claim exemption from these, as from other
+public offices; for it is settled that the office of a guardian or
+curator is a public one. Adopted children cannot be reckoned for this
+purpose, though natural children given in adoption to others may:
+similarly grandchildren by a son may be reckoned, so as to represent
+their father, while those by a daughter may not. It is, however, only
+living children who avail to excuse their fathers from serving as
+guardian or curator; such as have died are of no account, though the
+question has arisen whether this rule does not admit of an exception
+where they have died in war; and it is agreed that this is so, but only
+where they have fallen on the field of battle: for these, because they
+have died for their country, are deemed to live eternally in fame.
+
+1 The Emperor Marcus, too, replied by rescript, as is recorded in his
+Semestria, that employment in the service of the Treasury is a valid
+excuse from serving as guardian or curator so long as that employment
+lasts.
+
+2 Again, those are excused from these offices who are absent in the
+service of the state; and a person already guardian or curator who has
+to absent himself on public business is excused from acting in either of
+these capacities during such absence, a curator being appointed to act
+temporarily in his stead. On his return, he has to resume the burden
+of tutelage, without being entitled to claim a year's exemption, as has
+been settled since the opinion of Papinian was delivered in the fifth
+book of his replies; for the year's exemption or vacation belongs only
+to such as are called to a new tutelage.
+
+3 By a rescript of the Emperor Marcus persons holding any magistracy may
+plead this as a ground of exemption, though it will not enable them to
+resign an office of this kind already entered upon.
+
+4 No guardian or curator can excuse himself on the ground of an action
+pending between himself and his ward, unless it relates to the latter's
+whole estate or to an inheritance.
+
+5 Again, a man who is already guardian or curator to three persons
+without having sought after the office is entitled to exemption from
+further burdens of the kind so long as he is actually engaged with
+these, provided that the joint guardianship of several pupils, or
+administration of an undivided estate, as where the wards are brothers,
+is reckoned as one only.
+
+6 If a man can prove that through poverty he is unequal to the burden of
+the office, this, according to rescripts of the imperial brothers and of
+the Emperor Marcus, is a valid ground of excuse.
+
+7 Illhealth again is a sufficient excuse if it be such as to prevent a
+man from attending to even his own affairs:
+
+8 and the Emperor Pius decided by a rescript that persons unable to read
+ought to be excused, though even these are not incapable of transacting
+business.
+
+9 A man too is at once excused if he can show that a father has
+appointed him testamentary guardian out of enmity, while conversely no
+one can in any case claim exemption who promised the ward's father that
+he would act as guardian to them:
+
+10 and it was settled by a rescript of M. Aurelius and L. Verus that the
+allegation that one was unacquainted with the pupil's father cannot be
+admitted as a ground of excuse.
+
+11 Enmity against the ward's father, if extremely bitter, and if there
+was no reconciliation, is usually accepted as a reason for exemption
+from the office of guardian;
+
+12 and similarly a person can claim to be excused whose status or civil
+rights have been disputed by the father of the ward in an action.
+
+13 Again, a person over seventy years of age can claim to be excused
+from acting as guardian or curator, and by the older law persons less
+than twentyfive were similarly exempted. But our constitution, having
+forbidden the latter to aspire to these functions, has made excuses
+unnecessary. The effect of this enactment is that no pupil or
+person under twentyfive years of age is to be called to a statutory
+guardianship; for it was most incongruous to place persons under the
+guardianship or administration of those who are known themselves to need
+assistance in the management of their own affairs, and are themselves
+governed by others.
+
+14 The same rule is to be observed with soldiers, who, even though they
+desire it, may not be admitted to the office of guardian:
+
+15 and finally grammarians, rhetoricians, and physicians at Rome, and
+those who follow these callings in their own country and are within the
+number fixed by law, are exempted from being guardians or curators.
+
+16 If a person who has several grounds of excuse wishes to obtain
+exemption, and some of them are not allowed, he is not prohibited from
+alleging others, provided he does this within the time prescribed. Those
+desirous of excusing themselves do not appeal, but ought to allege
+their grounds of excuse within fifty days next after they hear of their
+appointment, whatever the form of the latter, and whatever kind of
+guardians they may be, if they are within a hundred miles of the place
+where they were appointed: if they live at a distance of more than a
+hundred miles, they are allowed a day for every twenty miles, and thirty
+days in addition, but this time, as Scaevola has said, must never be so
+reckoned as to amount to less than fifty days.
+
+17 A person appointed guardian is deemed to be appointed to the whole
+patrimony;
+
+18 and after he has once acted as guardian he cannot be compelled
+against his will to become the same person's curator--not even if the
+father who appointed him testamentary guardian added in the will that
+he made him curator, too, as soon as the ward reached fourteen years of
+age--this having been decided by a rescript of the Emperors Severus and
+Antoninus.
+
+19 Another rescript of the same emperors settled that a man is
+entitled to be excused from becoming his own wife's curator, even after
+intermeddling with her affairs.
+
+20 No man is discharged from the burden of guardianship who has procured
+exemption by false allegations.
+
+
+
+
+TITLE XXVI. OF GUARDIANS OR CURATORS WHO ARE SUSPECTED
+
+The accusation of guardians or curators on suspicion originated in the
+statute of the Twelve Tables;
+
+1 the removal of those who are accused on suspicion is part of the
+jurisdiction, at Rome, of the praetor, and in the provinces of their
+governors and of the proconsul's legate.
+
+2 Having shown what magistrates can take cognizance of this subject, let
+us see what persons are liable to be accused on suspicion. All guardians
+are liable, whether appointed by testament or otherwise; consequently
+even a statutory guardian may be made the object of such an accusation.
+But what is to be said of a patron guardian? Even here we must reply
+that he too is liable; though we must remember that his reputation must
+be spared in the event of his removal on suspicion.
+
+3 The next point is to see what persons may bring this accusation; and
+it is to be observed that the action partakes of a public character,
+that is to say, is open to all. Indeed, by a rescript of Severus and
+Antoninus even women are made competent to bring it, but only those who
+can allege a close tie of affection as their motive; for instance, a
+mother, nurse, grandmother, or sister. And the praetor will allow any
+woman to prefer the accusation in whom he finds an affection real enough
+to induce her to save a pupil from suffering harm, without seeming to be
+more forward than becomes her sex.
+
+4 Persons below the age of puberty cannot accuse their guardians on
+suspicion; but by a rescript of Severus and Antoninus it has been
+permitted to those who have reached that age to deal thus with their
+curators, after taking the advice of their nearest relations.
+
+5 A guardian is 'suspected' who does not faithfully discharge his
+tutorial functions, though he may be perfectly solvent, as was the
+opinion also of Julian. Indeed, Julian writes that a guardian may be
+removed on suspicion before he commences his administration, and a
+constitution has been issued in accordance with this view.
+
+6 A person removed from office on suspicion incurs infamy if his offence
+was fraud, but not if it was merely negligence.
+
+7 As Papinian held, on a person being accused on suspicion he is
+suspended from the administration until the action is decided.
+
+8 If a guardian or curator who is accused on suspicion dies after the
+commencement of the action, but before it has been decided, the action
+is thereby extinguished;
+
+9 and if a guardian fails to appear to a summons of which the object is
+to fix by judicial order a certain rate of maintenance for the pupil,
+the rescript of the Emperors Severus and Antoninus provides that the
+pupil may be put in possession of the guardian's property, and orders
+the sale of the perishable portions thereof after appointment of a
+curator. Consequently, a guardian may be removed as suspected who does
+not provide his pupil with sufficient maintenance.
+
+10 If, on the other hand, the guardian appears, and alleges that the
+pupil's property is too inconsiderable to admit of maintenance being
+decreed, and it is shown that the allegation is false, the proper course
+is for him to be sent for punishment to the prefect of the city, like
+those who purchase a guardianship with bribery.
+
+11 So too a freedman, convicted of having acted fraudulently as guardian
+of the sons or grandsons of his patron, should be sent to the prefect of
+the city for punishment.
+
+12 Finally, it is to be noted, that guardians or curators who are guilty
+of fraud in their administration must be removed from their office even
+though they offer to give security, for giving security does not change
+the evil intent of the guardian, but only gives him a larger space of
+time wherein he may injure the pupil's property: 13 for a man's mere
+character or conduct may be such as to justify one's deeming him
+'suspected.' No guardian or curator, however, may be removed on
+suspicion merely because he is poor, provided he is also faithful and
+diligent.
+
+
+
+
+BOOK II.
+
+
+
+
+     TITLES
+     I. Of the different kinds of Things
+     II. Of incorporeal Things
+     III. Of servitudes
+     IV. Of usufruct
+     V. Of use and habitation
+     VI. Of usucapion and long possession
+     VII. Of gifts
+     VIII. Of persons who may, and who may
+     not alienate
+     IX. Of persons through whom we acquire
+     X. Of the execution of wills
+     XI. Of soldiers' wills
+     XII. Of persons incapable of making wills
+     XIII. Of the disinherison of children
+     XIV. Of the institution of the heir
+     XV. Of ordinary substitution
+     XVI. Of pupillary substitution
+     XVII. Of the modes in which wills become
+     void
+     XVIII.  Of an unduteous will
+     XIX. Of the kinds of and differences
+     between heirs
+     XX. Of legacies
+     XXI. Of the ademption and transference
+     of legacies
+     XXII. Of the lex Falcidia
+     XXIII. Of trust inheritances
+     XXIV. Of trust bequests of single things
+     XXV. Of codicils
+
+
+
+
+TITLE I. OF THE DIFFERENT KINDS OF THINGS
+
+In the preceding book we have expounded the law of Persons: now let us
+proceed to the law of Things. Of these, some admit of private ownership,
+while others, it is held, cannot belong to individuals: for some things
+are by natural law common to all, some are public, some belong to a
+society or corporation, and some belong to no one. But most things
+belong to individuals, being acquired by various titles, as will appear
+from what follows.
+
+1 Thus, the following things are by natural law common to all--the air,
+running water, the sea, and consequently the seashore. No one therefore
+is forbidden access to the seashore, provided he abstains from injury to
+houses, monuments, and buildings generally; for these are not, like the
+sea itself, subject to the law of nations.
+
+2 On the other hand, all rivers and harbours are public, so that all
+persons have a right to fish therein.
+
+3 The seashore extends to the limit of the highest tide in time of storm
+or winter.
+
+4 Again, the public use of the banks of a river, as of the river itself,
+is part of the law of nations; consequently every one is entitled to
+bring his vessel to the bank, and fasten cables to the trees growing
+there, and use it as a resting-place for the cargo, as freely as he may
+navigate the river itself. But the ownership of the bank is in the owner
+of the adjoining land, and consequently so too is the ownership of the
+trees which grow upon it.
+
+5 Again, the public use of the seashore, as of the sea itself, is part
+of the law of nations; consequently every one is free to build a cottage
+upon it for purposes of retreat, as well as to dry his nets and haul
+them up from the sea. But they cannot be said to belong to any one as
+private property, but rather are subject to the same law as the sea
+itself, with the soil or sand which lies beneath it.
+
+6 As examples of things belonging to a society or corporation, and not
+to individuals, may be cited buildings in cities--theatres, racecourses,
+and such other similar things as belong to cities in their corporate
+capacity.
+
+7 Things which are sacred, devoted to superstitious uses, or sanctioned,
+belong to no one, for what is subject to divine law is no one's
+property.
+
+8 Those things are sacred which have been duly consecrated to God by
+His ministers, such as churches and votive offerings which have been
+properly dedicated to His service; and these we have by our constitution
+forbidden to be alienated or pledged, except to redeem captives from
+bondage. If any one attempts to consecrate a thing for himself and by
+his own authority, its character is unaltered, and it does not become
+sacred. The ground on which a sacred building is erected remains sacred
+even after the destruction of the building, as was declared also by
+Papinian.
+
+9 Any one can devote a place to superstitious uses of his own free
+will, that is to say, by burying a dead body in his own land. It is not
+lawful, however, to bury in land which one owns jointly with some one
+else, and which has not hitherto been used for this purpose, without the
+other's consent, though one may lawfully bury in a common sepulchre
+even without such consent. Again, the owner may not devote a place to
+superstitious uses in which another has a usufruct, without the consent
+of the latter. It is lawful to bury in another man's ground, if he gives
+permission, and the ground thereby becomes religious even though he
+should not give his consent to the interment till after it has taken
+place.
+
+10 Sanctioned things, too, such as city walls and gates, are, in
+a sense, subject to divine law, and therefore are not owned by any
+individual. Such walls are said to be 'sanctioned,' because any offence
+against them is visited with capital punishment; for which reason
+those parts of the laws in which we establish a penalty for their
+transgressors are called sanctions.
+
+11 Things become the private property of individuals in many ways; for
+the titles by which we acquire ownership in them are some of them titles
+of natural law, which, as we said, is called the law of nations, while
+some of them are titles of civil law. It will thus be most convenient to
+take the older law first: and natural law is clearly the older, having
+been instituted by nature at the first origin of mankind, whereas
+civil laws first came into existence when states began to be founded,
+magistrates to be created, and laws to be written.
+
+12 Wild animals, birds, and fish, that is to say all the creatures which
+the land, the sea, and the sky produce, as soon as they are caught
+by any one become at once the property of their captor by the law of
+nations; for natural reason admits the title of the first occupant to
+that which previously had no owner. So far as the occupant's title is
+concerned, it is immaterial whether it is on his own land or on that of
+another that he catches wild animals or birds, though it is clear that
+if he goes on another man's land for the sake of hunting or fowling,
+the latter may forbid him entry if aware of his purpose. An animal thus
+caught by you is deemed your property so long as it is completely under
+your control; but so soon as it has escaped from your control, and
+recovered its natural liberty, it ceases to be yours, and belongs to the
+first person who subsequently catches it. It is deemed to have recovered
+its natural liberty when you have lost sight of it, or when, though it
+is still in your sight, it would be difficult to pursue it.
+
+13 It has been doubted whether a wild animal becomes your property
+immediately you have wounded it so severely as to be able to catch it.
+Some have thought that it becomes yours at once, and remains so as
+long as you pursue it, though it ceases to be yours when you cease
+the pursuit, and becomes again the property of any one who catches it:
+others have been of opinion that it does not belong to you till you have
+actually caught it. And we confirm this latter view, for it may happen
+in many ways that you will not capture it.
+
+14 Bees again are naturally wild; hence if a swarm settles on your tree,
+it is no more considered yours, until you have hived it, than the birds
+which build their nests there, and consequently if it is hived by
+some one else, it becomes his property. So too any one may take the
+honeycombs which bees may chance to have made, though, of course, if you
+see some one coming on your land for this purpose, you have a right,
+to forbid him entry before that purpose is effected. A swarm which has
+flown from your hive is considered to remain yours so long as it is in
+your sight and easy of pursuit: otherwise it belongs to the first person
+who catches it.
+
+15 Peafowl too and pigeons are naturally wild, and it is no valid
+objection that they are used to return to the same spots from which they
+fly away, for bees do this, and it is admitted that bees are wild by
+nature; and some people have deer so tame that they will go into the
+woods and yet habitually come back again, and still no one denies that
+they are naturally wild. With regard, however, to animals which have
+this habit of going away and coming back again, the rule has been
+established that they are deemed yours so long as they have the intent
+to return: for if they cease to have this intention they cease to be
+yours, and belong to the first person who takes them; and when they lose
+the habit they seem also to have lost the intention of returning.
+
+16 Fowls and geese are not naturally wild, as is shown by the fact that
+there are some kinds of fowls and geese which we call wild kinds. Hence
+if your geese or fowls are frightened and fly away, they are considered
+to continue yours wherever they may be, even though you have lost sight
+of them; and any one who keeps them intending thereby to make a profit
+is held guilty of theft.
+
+17 Things again which we capture from the enemy at once become ours
+by the law of nations, so that by this rule even free men become our
+slaves, though, if they escape from our power and return to their own
+people, they recover their previous condition.
+
+18 Precious stones too, and gems, and all other things found on the
+seashore, become immediately by natural law the property of the finder:
+
+19 and by the same law the young of animals of which you are the owner
+become your property also.
+
+20 Moreover, soil which a river has added to your land by alluvion
+becomes yours by the law of nations. Alluvion is an imperceptible
+addition; and that which is added so gradually that you cannot perceive
+the exact increase from one moment of time to another is added by
+alluvion.
+
+21 If, however, the violence of the stream sweeps away a parcel of
+your land and carries it down to the land of your neighbour it clearly
+remains yours; though of course if in the process of time it becomes
+firmly attached to your neighbour's land, they are deemed from that time
+to have become part and parcel thereof.
+
+22 When an island rises in the sea, though this rarely happens, it
+belongs to the first occupant; for, until occupied, it is held to belong
+to no one. If, however (as often occurs), an island rises in a river,
+and it lies in the middle of the stream, it belongs in common to the
+landowners on either bank, in proportion to the extent of their riparian
+interest; but if it lies nearer to one bank than to the other, it
+belongs to the landowners on that bank only. If a river divides into
+two channels, and by uniting again these channels transform a man's land
+into an island, the ownership of that land is in no way altered:
+
+23 but if a river entirely leaves its old channel, and begins to run in
+a new one, the old channel belongs to the landowners on either side of
+it in proportion to the extent of their riparian interest, while the new
+one acquires the same legal character as the river itself, and becomes
+public. But if after a while the river returns to its old channel, the
+new channel again becomes the property of those who possess the land
+along its banks.
+
+24 It is otherwise if one's land is wholly flooded, for a flood does not
+permanently alter the nature of the land, and consequently if the water
+goes back the soil clearly belongs to its previous owner.
+
+25 When a man makes a new object out of materials belonging to another,
+the question usually arises, to which of them, by natural reason, does
+this new object belong--to the man who made it, or to the owner of the
+materials? For instance, one man may make wine, or oil, or corn, out of
+another man's grapes, olives, or sheaves; or a vessel out of his gold,
+silver, or bronze; or mead of his wine and honey; or a plaster or
+eyesalve out of his drugs; or cloth out of his wool; or a ship, a chest,
+or a chair out of his timber. After many controversies between the
+Sabinians and Proculians, the law has now been settled as follows, in
+accordance with the view of those who followed a middle course between
+the opinions of the two schools. If the new object can be reduced to
+the materials out of which it was made, it belongs to the owner of the
+materials; if not, it belongs to the person who made it. For instance, a
+vessel can be melted down, and so reduced to the rude material--bronze,
+silver, or gold--of which it is made: but it is impossible to reconvert
+wine into grapes, oil into olives, or corn into sheaves, or even mead
+into the wine and honey out of which it was compounded. But if a man
+makes a new object out of materials which belong partly to him and
+partly to another--for instance, mead of his own wine and another's
+honey, or a plaster or eyesalve of drugs which are not all his own, or
+cloth of wool which belongs only in part to him--in this case there
+can be no doubt that the new object belongs to its creator, for he has
+contributed not only part of the material, but the labour by which it
+was made.
+
+26 If, however, a man weaves into his own cloth another man's purple,
+the latter, though the more valuable, becomes part of the cloth by
+accession; but its former owner can maintain an action of theft against
+the purloiner, and also a condiction, or action for reparative damages,
+whether it was he who made the cloth, or some one else; for although the
+destruction of property is a bar to a real action for its recovery,
+it is no bar to a condiction against the thief and certain other
+possessors.
+
+27 If materials belonging to two persons are mixed by consent--for
+instance, if they mix their wines, or melt together their gold or their
+silver--the result of the mixture belongs to them in common. And the law
+is the same if the materials are of different kinds, and their mixture
+consequently results in a new object, as where mead is made by mixing
+wine and honey, or electrum by mixing gold and silver; for even here it
+is not doubted that the new object belongs in common to the owners of
+the materials. And if it is by accident, and not by the intention of the
+owners, that materials have become mixed, the law is the same, whether
+they were of the same or of different kinds.
+
+28 But if the corn of Titius has become mixed with yours, and this by
+mutual consent, the whole will belong to you in common, because the
+separate bodies or grains, which before belonged to one or the other
+of you in severalty, have by consent on both sides been made your joint
+property. If, however, the mixture was accidental, or if Titius mixed
+the two parcels of corn without your consent, they do not belong to
+you in common, because the separate grains remain distinct, and their
+substance is unaltered; and in such cases the corn no more becomes
+common property than does a flock formed by the accidental mixture of
+Titius's sheep with yours. But if either of you keeps the whole of the
+mixed corn, the other can bring a real action for the recovery of such
+part of it as belongs to him, it being part of the province of the judge
+to determine the quality of the wheat which belonged to each.
+
+29 If a man builds upon his own ground with another's materials, the
+building is deemed to be his property, for buildings become a part
+of the ground on which they stand. And yet he who was owner of the
+materials does not cease to own them, but he cannot bring a real action
+for their recovery, or sue for their production, by reason of a clause
+in the Twelve Tables providing that no one shall be compelled to take
+out of his house materials (tignum), even though they belong to another,
+which have once been built into it, but that double their value may
+be recovered by the action called 'de tigno iniuncto.' The term tignum
+includes every kind of material employed in building, and the object
+of this provision is to avoid the necessity of having buildings pulled
+down; but if through some cause or other they should be destroyed, the
+owner of the materials, unless he has already sued for double value, may
+bring a real action for recovery, or a personal action for production.
+
+30 On the other hand, if one man builds a house on another's land with
+his own materials, the house belongs to the owner of the land. In this
+case, however, the right of the previous owner in the materials is
+extinguished, because he is deemed to have voluntarily parted with them,
+though only, of course, if he was aware that the land on which he was
+building belonged to another man. Consequently, though the house should
+be destroyed, he cannot claim the materials by real action. Of course,
+if the builder of the house has possession of the land, and the owner of
+the latter claims the house by real action, but refuses to pay for the
+materials and the workmen's wages, he can be defeated by the plea of
+fraud, provided the builder's possession is in good faith: for if he
+knew that the land belonged to some one else it may be urged against him
+that he was to blame for rashly building on land owned to his knowledge
+by another man.
+
+31 If Titius plants another man's shrub in land belonging to himself,
+the shrub will become his; and, conversely, if he plants his own shrub
+in the land of Maevius, it will belong to Maevius. In neither case,
+however, will the ownership be transferred until the shrub has taken
+root: for, until it has done this, it continues to belong to the
+original owner. So strict indeed is the rule that the ownership of
+the shrub is transferred from the moment it has taken root, that if a
+neighbour's tree grows so close to the land of Titius that the soil of
+the latter presses round it, whereby it drives its roots entirely into
+the same, we say the tree becomes the property of Titius, on the ground
+that it would be unreasonable to allow the owner of a tree to be a
+different person from the owner of the land in which it is rooted.
+Consequently, if a tree which grows on the boundaries of two estates
+drives its roots even partially into the neighbour's soil, it becomes
+the common property of the two landowners.
+
+32 On the same principle corn is reckoned to become a part of the soil
+in which it is sown. But exactly as (according to what we said) a man
+who builds on another's land can defend himself by the plea of fraud
+when sued for the building by the owner of the land, so here too one who
+has in good faith and at his own expense put crops into another man's
+soil can shelter himself behind the same plea, if refused compensation
+for labour and outlay.
+
+33 Writing again, even though it be in letters of gold, becomes a part
+of the paper or parchment, exactly as buildings and sown crops become
+part of the soil, and consequently if Titius writes a poem, or a
+history, or a speech on your paper and parchment, the whole will be held
+to belong to you, and not to Titius. But if you sue Titius to recover
+your books or parchments, and refuse to pay the value of the writing,
+he will be able to defend himself by the plea of fraud, provided that he
+obtained possession of the paper or parchment in good faith.
+
+34 Where, on the other hand, one man paints a picture on another's
+board, some think that the board belongs, by accession, to the painter,
+others, that the painting, however great its excellence, becomes part of
+the board. The former appears to us the better opinion, for it is absurd
+that a painting by Apelles or Parrhasius should be an accessory of a
+board which, in itself, is thoroughly worthless. Hence, if the owner
+of the board has possession of the picture, and is sued for it by the
+painter, who nevertheless refuses to pay the cost of the board, he will
+be able to repel him by the plea of fraud. If, on the other hand, the
+painter has possession, it follows from what has been said that the
+former owner of the board, [if he is to be able to sue at all], must
+claim it by a modified and not by a direct action; and in this case,
+if he refuses to pay the cost of the picture, he can be repelled by the
+plea of fraud, provided that the possession of the painter be in good
+faith; for it is clear, that if the board was stolen by the painter, or
+some one else, from its former owner, the latter can bring the action of
+theft.
+
+35 If a man in good faith buys land from another who is not its owner,
+though he believed he was, or acquires it in good faith by gift or some
+other lawful title, natural reason directs that the fruits which he has
+gathered shall be his, in consideration of his care and cultivation:
+consequently if the owner subsequently appears and claims the land by
+real action, he cannot sue for fruits which the possessor has consumed.
+This, however, is not allowed to one who takes possession of land which
+to his knowledge belongs to another person, and therefore he is obliged
+not only to restore the land, but to make compensation for fruits even
+though they have been consumed.
+
+36 A person who has a usufruct in land does not become owner of
+the fruits which grow thereon until he has himself gathered them;
+consequently fruits which, at the moment of his decease, though ripe,
+are yet ungathered, do not belong to his heir, but to the owner of the
+land. What has been said applies also in the main to the lessee of land.
+
+37 The term 'fruits,' when used of animals, comprises their young,
+as well as milk, hair, and wool; thus lambs, kids, calves, and foals,
+belong at once, by the natural law of ownership, to the fructuary.
+But the term does not include the offspring of a female slave, which
+consequently belongs to her master; for it seemed absurd to reckon human
+beings as fruits, when it is for their sake that all other fruits have
+been provided by nature.
+
+38 The usufructuary of a flock, as Julian held, ought to replace any of
+the animals which die from the young of the rest, and, if his usufruct
+be of land, to replace dead vines or trees; for it is his duty to
+cultivate according to law and use them like a careful head of a family.
+
+39 If a man found treasure in his own land, the Emperor Hadrian,
+following natural equity, adjudged to him the ownership of it, as he
+also did to a man who found one by accident in soil which was sacred or
+religious. If he found it in another man's land by accident, and without
+specially searching for it, he gave half to the finder, half to the
+owner of the soil; and upon this principle, if a treasure were found in
+land belonging to the Emperor, he decided that half should belong to
+the latter, and half to the finder; and consistently with this, if a man
+finds one in land which belongs to the imperial treasury or the people,
+half belongs to him, and half to the treasury or the State.
+
+40 Delivery again is a mode in which we acquire things by natural law;
+for it is most agreeable to natural equity that where a man wishes to
+transfer his property to another person his wish should be confirmed.
+Consequently corporeal things, whatever be their nature, admit of
+delivery, and delivery by their owner makes them the property of the
+alienee; this, for instance, is the mode of alienating stipendiary and
+tributary estates, that is to say, estates lying in provincial soil;
+between which, however, and estates in Italy there now exists, according
+to our constitution, no difference.
+
+41 And ownership is transferred whether the motive of the delivery
+be the desire to make a gift, to confer a dowry, or any other motive
+whatsoever. When, however, a thing is sold and delivered, it does not
+become the purchaser's property until he has paid the price to the
+vendor, or satisfied him in some other way, as by getting some one else
+to accept liability for him, or by pledge. And this rule, though laid
+down also in the statute of the Twelve Tables, is rightly said to be a
+dictate of the law of all nations, that is, of natural law. But if the
+vendor gives the purchaser credit, the goods sold belong to the latter
+at once.
+
+42 It is immaterial whether the person who makes delivery is the owner
+himself, or some one else acting with his consent.
+
+43 Consequently, if any one is entrusted by an owner with the management
+of his business at his own free discretion, and in the execution of his
+commission sells and delivers any article, he makes the receiver its
+owner.
+
+44 In some cases even the owner's bare will is sufficient, without
+delivery, to transfer ownership. For instance, if a man sells or makes
+you a present of a thing which he has previously lent or let to you or
+placed in your custody, though it was not from that motive he originally
+delivered it to you, yet by the very fact that he suffers it to be
+yours you at once become its owner as fully as if it had been originally
+delivered for the purpose of passing the property.
+
+45 So too if a man sells goods lying in a warehouse, he transfers the
+ownership of them to the purchaser immediately he has delivered to the
+latter the keys of the warehouse.
+
+46 Nay, in some cases the will of the owner, though directly only
+towards an uncertain person, transfers the ownership of the thing, as
+for instance when praetors and consuls throw money to a crowd: here they
+know not which specific coin each person will get, yet they make the
+unknown recipient immediately owner, because it is their will that each
+shall have what he gets.
+
+47 Accordingly, it is true that if a man takes possession of property
+abandoned by its previous owner, he at once becomes its owner himself:
+and a thing is said to be abandoned which its owner throws away with the
+deliberate intention that it shall no longer be part of his property,
+and of which, consequently, he immediately ceases to be the owner.
+
+48 It is otherwise with things which are thrown overboard during a
+storm, in order to lighten the ship; in the ownership of these things
+there is no change, because the reason for which they are thrown
+overboard is obviously not that the owner does not care to own them any
+longer, but that he and the ship besides may be more likely to escape
+the perils of the sea. Consequently any one who carries them off after
+they are washed on shore, or who picks them up at sea and keeps them,
+intending to make a profit thereby, commits a theft; for such things
+seem to be in much the same position as those which fall out of a
+carriage in motion unknown to their owners.
+
+
+
+
+TITLE II. OF INCORPOREAL THINGS
+
+Some things again are corporeal, and others incorporeal.
+
+1 Those are corporeal which in their own nature are tangible, such as
+land, slaves, clothing, gold, silver, and others innumerable.
+
+2 Things incorporeal are such as are intangible: rights, for instance,
+such as inheritance, usufruct, and obligations, however acquired. And it
+is no objection to this definition that an inheritance comprises things
+which are corporeal; for the fruits of land enjoyed by a usufructuary
+are corporeal too, and obligations generally relate to the conveyance of
+something corporeal, such as land, slaves, or money, and yet the right
+of succession, the right of usufruct, and the right existing in every
+obligation, are incorporeal.
+
+3 So too the rights appurtenant to land, whether in town or country,
+which are usually called servitudes, are incorporeal things.
+
+
+
+
+TITLE III. OF SERVITUDES
+
+The following are rights appurtenant to country estates: 'iter,'
+the right of passage at will for a man only, not of driving beast or
+vehicles; 'actus,' the right of driving beasts or vehicles (of which two
+the latter contains the former, though the former does not contain the
+latter, so that a man who has iter has not necessarily actus, while if
+he has actus he has also iter, and consequently can pass himself even
+though unaccompanied by cattle); 'via,' which is the right of going, of
+driving any thing whatsoever, and of walking, and which thus contains
+both iter and actus; and fourthly, 'aquaeductus,' the right of
+conducting water over another man's land.
+
+1 Servitudes appurtenant to town estates are rights which are attached
+to buildings; and they are said to appertain to town estates because all
+buildings are called 'town estates,' even though they are actually in
+the country. The following are servitudes of this kind--the obligation
+of a man to support the weight of his neighbour's house, to allow a beam
+to be let into his wall, or to receive the rain from his neighbour's
+roof on to his own either in drops or from a shoot, or from a gutter
+into his yard; the converse right of exemption from any of these
+obligations; and the right of preventing a neighbour from raising his
+buildings, lest thereby one's ancient lights be obstructed.
+
+2 Some think that among servitudes appurtenant to country estates ought
+properly to be reckoned the rights of drawing water, of watering cattle,
+of pasture, of burning lime, and of digging sand.
+
+3 These servitudes are called rights attached to estates, because
+without estates they cannot come into existence; for no one can acquire
+or own a servitude attached to a town or country estate unless he has an
+estate for it to be attached to.
+
+4 When a landowner wishes to create any of these rights in favour of
+his neighbour, the proper mode of creation is agreement followed by
+stipulation. By testament too one can impose on one's heir an obligation
+not to raise the height of his house so as to obstruct his neighbour's
+ancient lights, or bind him to allow a neighbour to let a beam into
+his wall, to receive the rain water from a neighbour's pipe, or allow a
+neighbour a right of way, of driving cattle or vehicles over his land,
+or conducting water over it.
+
+
+
+
+TITLE IV. OF USUFRUCT
+
+Usufruct is the right of using and taking the fruits of property not
+one's own, without impairing the substance of that property; for being
+a right over a corporeal thing, it is necessarily extinguished itself
+along with the extinction of the latter.
+
+1 Usufruct is thus a right detached from the aggregate of rights
+involved in ownership, and this separation can be effected in very many
+ways: for instance, if one man gives another a usufruct by legacy, the
+legatee has the usufruct, while the heir has merely the bare ownership;
+and, conversely, if a man gives a legacy of an estate, reserving
+the usufruct, the usufruct belongs to the heir, while only the bare
+ownership is vested in the legatee. Similarly, he can give to one man
+a legacy of the usufruct, to another one of the estate, subject to the
+other's usufruct. If it is wished to create a usufruct in favour of
+another person otherwise than by testament, the proper mode is agreement
+followed by stipulation. However, lest ownership should be entirely
+valueless through the permanent separation from it of the usufruct,
+certain modes have been approved in which usufruct may be extinguished,
+and thereby revert to the owner.
+
+2 A usufruct may be created not only in land or buildings, but also in
+slaves, cattle, and other objects generally, except such as are actually
+consumed by being used, of which a genuine usufruct is impossible by
+both natural and civil law. Among them are wine, oil, grain, clothing,
+and perhaps we may also say coined money; for a sum of money is in a
+sense extinguished by changing hands, as it constantly does in simply
+being used. For convenience sake, however, the senate enacted that a
+usufruct could be created in such things, provided that due security be
+given to the heir. Thus if a usufruct of money be given by legacy, that
+money, on being delivered to the legatee, becomes his property, though
+he has to give security to the heir that he will repay an equivalent
+sum on his dying or undergoing a loss of status. And all things of this
+class, when delivered to the legatee, become his property, though they
+are first appraised, and the legatee then gives security that if he dies
+or undergoes a loss of status he will ay the value which was put upon
+them. Thus in point of fact the senate did not introduce a usufruct
+of such things, for that was beyond its power, but established a right
+analogous to usufruct by requiring security.
+
+3 Usufruct determines by the death of the usufructuary, by his
+undergoing either of the greater kinds of loss of status, by its
+improper exercise, and by its nonexercise during the time fixed by
+law; all of which points are settled by our constitution. It is also
+extinguished when surrendered to the owner by the usufructuary (though
+transfer to a third person is inoperative); and again, conversely,
+by the fructuary becoming owner of the thing, this being called
+consolidation. Obviously, a usufruct of a house is extinguished by
+the house being burnt down, or falling through an earthquake or faulty
+construction; and in such case a usufruct of the site cannot be claimed.
+
+4 When a usufruct determines, it reverts to and is reunited with the
+ownership; and from that moment he who before was but bare owner of the
+thing begins to have full power over it.
+
+
+
+
+TITLE V. OF USE AND HABITATION
+
+A bare use, or right of using a thing, is created in the same mode as a
+usufruct, and the modes in which it may determine are the same as those
+just described.
+
+1 A use is a less right than a usufruct; for if a man has a bare use of
+an estate, he is deemed entitled to use the vegetables, fruit, flowers,
+hay, straw, and wood upon it only so far as his daily needs require:
+he may remain on the land only so long as he does not inconvenience its
+owner, or impede those who are engaged in its cultivation; but he
+cannot let or sell or give away his right to a third person, whereas a
+usufructuary may.
+
+2 Again, a man who has the use of a house is deemed entitled only to
+live in it himself; he cannot transfer his right to a third person, and
+it scarcely seems to be agreed that he may take in a guest; but besides
+himself he may lodge there his wife, children, and freedmen, and other
+free persons who form as regular a part of his establishment as his
+slaves. Similarly, if a woman has the use of a house, her husband may
+dwell there with her.
+
+3 When a man has the use of a slave, he has only the right of personally
+using his labour and services; in no way is he allowed to transfer his
+right to a third person, and the same applies to the use of beasts of
+burden.
+
+4 If a legacy be given of the use of a herd or of a flock of sheep, the
+usuary may not use the milk, lambs, or wool, for these are fruits; but
+of course he may use the animals for the purpose of manuring his land.
+
+5 If a right of habitation be given to a man by legacy or in some other
+mode, this seems to be neither a use nor a usufruct, but a distinct
+and as it were independent right; and by a constitution which we have
+published in accordance with the opinion of Marcellus, and in the
+interests of utility, we have permitted persons possessed of this right
+not only to live in the building themselves, but also to let it out to
+others.
+
+6 What we have here said concerning servitudes, and the rights of
+usufruct, use, and habitation, will be sufficient; of inheritance and
+obligations we will treat in their proper places respectively. And
+having now briefly expounded the modes in which we acquire things by the
+law of nations, let us turn and see in what modes they are acquired by
+statute or by civil law.
+
+
+
+
+TITLE VI. OF USUCAPION AND LONG POSSESSION
+
+It was a rule of the civil law that if a man in good faith bought a
+thing, or received it by way of gift, or on any other lawful ground,
+from a person who was not its owner, but whom he believed to be such, he
+should acquire it by usucapion--if a movable, by one year's possession,
+and by two years' possession if an immovable, though in this case
+only if it were in Italian soil;--the reason of the rule being the
+inexpediency of allowing ownership to be long unascertained. The
+ancients thus considered that the periods mentioned were sufficient to
+enable owners to look after their property; but we have arrived at a
+better opinion, in order to save people from being overquickly defrauded
+of their own, and to prevent the benefit of this institution from being
+confined to only a certain part of the empire. We have consequently
+published a constitution on the subject, enacting that the period of
+usucapion for movables shall be three years, and that ownership of
+immovables shall be acquired by long possession--possession, that is to
+say, for ten years, if both parties dwell in the same province, and for
+twenty years if in different provinces; and things may in these modes
+be acquired in full ownership, provided the possession commences on a
+lawful ground, not only in Italy but in every land subject to our sway.
+
+1 Some things, however, not withstanding the good faith of the
+possessor, and the duration of his possession, cannot be acquired by
+usucapion; as is the case, for instance, if one possesses a free man, a
+thing sacred or religious, or a runaway slave.
+
+2 Things again of which the owner lost possession by theft, or
+possession of which was gained by violence, cannot be acquired by
+usucapion, even by a person who has possessed them in good faith for the
+specified period: for stolen things are declared incapable of usucapion
+by the statute of the Twelve Tables and by the lex Atinia, and things
+taken with violence by the lex Iulia et Plautia.
+
+3 The statement that things stolen or violently possessed cannot, by
+statute, be acquired by usucapion, means, not that the thief or violent
+dispossessor is incapable of usucapion--for these are barred by another
+reason, namely the fact that their possession is not in good faith; but
+that even a person who has purchased the thing from them in good faith,
+or received it on some other lawful ground, is incapable of acquiring by
+usucapion. Consequently, in things movable even a person who possesses
+in good faith can seldom acquire ownership by usucapion, for he who
+sells, or on some other ground delivers possession of a thing belonging
+to another, commits a theft.
+
+4 However, this admits of exception; for if an heir, who believes a
+thing lent or let to, or deposited with, the person whom he succeeds,
+to be a portion of the inheritance, sells or gives it by way of dowry to
+another who receives it in good faith, there is no doubt that the latter
+can acquire the ownership of it by usucapion; for the thing is here not
+tainted with the flaw attaching to stolen property, because an heir does
+not commit a theft who in good faith conveys a thing away believing it
+to be his own.
+
+5 Again, the usufructuary of a female slave, who believes her offspring
+to be his property, and sells or gives it away, does not commit a theft:
+for theft implies unlawful intention.
+
+6 There are also other ways in which one man can transfer to another
+property which is not his own, without committing a theft, and thereby
+enable the receiver to acquire by usucapion.
+
+7 Usucapion of property classed among things immovable is an easier
+matter; for it may easily happen that a man may, without violence,
+obtain possession of land which, owing to the absence or negligence of
+its owner, or to his having died and left no successor, is presently
+possessed by no one. Now this man himself does not possess in good
+faith, because he knows the land on which he has seized is not his own:
+but if he delivers it to another who receives it in good faith, the
+latter can acquire it by long possession, because it has neither
+been stolen nor violently possessed; for the idea held by some of the
+ancients, that a piece of land or a place can be stolen, has now been
+exploded, and imperial constitutions have been enacted in the interests
+of persons possessing immovables, to the effect that no one ought to
+be deprived of a thing of which he has had long and unquestioned
+possession.
+
+8 Sometimes indeed even things which have been stolen or violently
+possessed can be acquired by usucapion, as for instance after they have
+again come under the power of their real owner: for by this they are
+relieved from the taint which had attached to them, and so become
+capable of usucapion.
+
+9 Things belonging to our treasury cannot be acquired by usucapion. But
+there is on record an opinion of Papinian, supported by the rescripts of
+the Emperors Pius, Severus, and Antoninus, that if, before the property
+of a deceased person who has left no heir is reported to the exchequer,
+some one has bought or received some part thereof, he can acquire it by
+usucapion.
+
+10 Finally, it is to be observed that things are incapable of being
+acquired through usucapion by a purchaser in good faith, or by one who
+possesses on some other lawful ground, unless they are free from all
+flaws which vitiate the usucapion.
+
+11 If there be a mistake as to the ground on which possession is
+acquired, and which it is wrongly supposed will support usucapion,
+usucapion cannot take place. Thus a man's possession may be founded on
+a supposed sale or gift, whereas in point of fact there has been no sale
+or gift at all.
+
+12 Long possession which has begun to run in favour of a deceased person
+continues to run on in favour of his heir or praetorian successor, even
+though he knows that the land belongs to another person. But if the
+deceased's possession had not a lawful inception, it is not available
+to the heir or praetorian successor, although ignorant of this. Our
+constitution has enacted that in usucapion too a similar rule shall
+be observed, and that the benefit of the possession shall continue in
+favour of the successor.
+
+13 The Emperors Severus and Antoninus have decided by a rescript that a
+purchaser too may reckon as his own the time during which his vendor has
+possessed the thing.
+
+14 Finally, it is provided by an edict of the Emperor Marcus that after
+an interval of five years a purchaser from the treasury of property
+belonging to a third person may repel the owner, if sued by him, by
+an exception. But a constitution issued by Zeno of sacred memory has
+protected persons who acquire things from the treasury by purchase,
+gift, or other title, affording them complete security from the moment
+of transfer, and guaranteeing their success in any action relating
+thereto, whether they be plaintiffs or defendants; while it allows those
+who claim any action in respect of such property as owners or pledges
+to sue the imperial treasury at any time within four years from the
+transaction. A divine constitution which we ourselves have lately issued
+has extended the operation of Zeno's enactment, respecting conveyances
+by the treasury, to persons who have acquired anything from our palace
+or that of the Empress.
+
+
+
+
+TITLE VII. OF GIFTS
+
+Another mode in which property is acquired is gift. Gifts are of two
+kinds; those made in contemplation of death, and those not so made.
+
+1 Gifts of the first kind are those made in view of approaching death,
+the intention of the giver being that in the event of his decease the
+thing given should belong to the donee, but that if he should survive or
+should desire to revoke the gift, or if the donee should die first, the
+thing should be restored to him. These gifts in contemplation of death
+now stand on exactly the same footing as legacies; for as in some
+respects they were more like ordinary gifts, in others more like
+legacies, the jurists doubted under which of these two classes
+they should be placed, some being for gift, others for legacy: and
+consequently we have enacted by constitution that in nearly every
+respect they shall be treated like legacies, and shall be governed by
+the rules laid down respecting them in our constitution. In a word, a
+gift in contemplation of death is where the donor would rather have the
+thing himself than that the donee should have it, and that the latter
+should rather have it than his own heir. An illustration may be found in
+Homer, where Telemachus makes a gift to Piraeus.
+
+2 Gifts which are made without contemplation of death, which we call
+gifts between the living, are of another kind, and have nothing in
+common with legacies. If the transaction be complete, they cannot be
+revoked at pleasure; and it is complete when the donor has manifested
+his intention, whether in writing or not. Our constitution has settled
+that such a manifestation of intention binds the donor to deliver,
+exactly as in the case of sale; so that even before delivery gifts
+are completely effectual, and the donor is under a legal obligation to
+deliver the object. Enactments of earlier emperors required that
+such gifts, if in excess of two hundred solidi, should be officially
+registered; but our constitution has raised this maximum to five hundred
+solidi, and dispensed with the necessity of registering gifts of this
+or of a less amount; indeed it has even specified some gifts which are
+completely valid, and require no registration, irrespective of their
+amount. We have devised many other regulations in order to facilitate
+and secure gifts, all of which may be gathered from the constitutions
+which we have issued on this topic. It is to be observed, however,
+that even where gifts have been completely executed we have by our
+constitution under certain circumstances enabled donors to revoke them,
+but only on proof of ingratitude on the part of the recipient of the
+bounty; the aim of this reservation being to protect persons, who have
+given their property to others, from suffering at the hands of the
+latter injury or loss in any of the modes detailed in our constitution.
+
+3 There is another specific kind of gift between the living, with which
+the earlier jurists were quite unacquainted, and which owed its
+later introduction to more recent emperors. It was called gift before
+marriage, and was subject to the implied condition that it should not
+be binding until the marriage had taken place; its name being due to the
+fact that it was always made before the union of the parties, and could
+never take place after the marriage had once been celebrated. The first
+change in this matter was made by our imperial father Justin, who, as
+it had been allowed to increase dowries even after marriage, issued a
+constitution authorizing the increase of gifts before marriage during
+the continuance of the marriage tie in cases where an increase had been
+made to the dowry. The name 'gift before marriage' was, however, still
+retained, though now inappropriate, because the increase was made to it
+after the marriage. We, however, in our desire to perfect the law, and
+to make names suit the things which they are used to denote, have by
+a constitution permitted such gifts to be first made, and not merely
+increased, after the celebration of the marriage, and have directed that
+they shall be called gifts 'on account of' (and not 'before') marriage,
+thereby assimilating them to dowries; for as dowries are not only
+increased, but actually constituted, during marriage, so now gifts
+on account of marriage may be not only made before the union of
+the parties, but may be first made as well as increased during the
+continuance of that union.
+
+4 There was formerly too another civil mode of acquisition, namely, by
+accrual, which operated in the following way: if a person who owned
+a slave jointly with Titius gave him his liberty himself alone by
+vindication or by testament, his share in the slave was lost, and went
+to the other joint owner by accrual. But as this rule was very bad as a
+precedent--for both the slave was cheated of his liberty, and the kinder
+masters suffered all the loss while the harsher ones reaped all the
+gain--we have deemed it necessary to suppress a usage which seemed so
+odious, and have by our constitution provided a merciful remedy, by
+discovering a means by which the manumitter, the other joint owner,
+and the liberated slave, may all alike be benefited. Freedom, in whose
+behalf even the ancient legislators clearly established many rules at
+variance with the general principles of law, will be actually acquired
+by the slave; the manumitter will have the pleasure of seeing the
+benefit of his kindness undisturbed; while the other joint owner, by
+receiving a money equivalent proportionate to his interest, and on the
+scale which we have fixed, will be indemnified against all loss.
+
+
+
+
+TITLE VIII. OF PERSONS WHO MAY, AND WHO MAY NOT ALIENATE
+
+It sometimes happens that an owner cannot alienate, and that a nonowner
+can. Thus the alienation of dowry land by the husband, without the
+consent of the wife, is prohibited by the lex Iulia, although, since
+it has been given to him as dowry, he is its owner. We, however, have
+amended the lex Iulia, and thus introduced an improvement; for that
+statute applied only to land in Italy, and though it prohibited a
+mortgage of the land even with the wife's consent, it forbade it to be
+alienated only without her concurrence. To correct these two defects we
+have forbidden mortgages as well as alienations of dowry land even when
+it is situated in the provinces, so that such land can now be dealt with
+in neither of these ways, even if the wife concurs, lest the weakness
+of the female sex should be used as a means to the wasting of their
+property.
+
+1 Conversely, a pledgee, in pursuance of his agreement, may alienate
+the pledge, though not its owner; this, however, may seem to rest on the
+assent of the pledgor given at the inception of the contract, in which
+it was agreed that the pledgee should have a power of sale in default of
+repayment. But in order that creditors may not be hindered from pursuing
+their lawful rights, or debtors be deemed to be overlightly deprived of
+their property, provisions have been inserted in our constitution and
+a definite procedure established for the sale of pledges, by which the
+interests of both creditors and debtors have been abundantly guarded.
+
+2 We must next observe that no pupil of either sex can alienate anything
+without his or her guardian's authority. Consequently, if a pupil
+attempts to lend money without such authority, no property passes, and
+he does not impose a contractual obligation; hence the money, if it
+exists, can be recovered by real action. If the money which he attempted
+to lend has been spent in good faith by the wouldbe borrower, it can
+be sued for by the personal action called condiction; if it has been
+fraudulently spent, the pupil can sue by personal action for its
+production. On the other hand, things can be validly conveyed to pupils
+of either sex without the guardian's authority; accordingly, if a debtor
+wishes to pay a pupil, he must obtain the sanction of the guardian to
+the transaction, else he will not be released. In a constitution
+which we issued to the advocates of Caesarea at the instance of the
+distinguished Tribonian, quaestor of our most sacred palace, it has with
+the clearest reason been enacted, that the debtor of a pupil may safely
+pay a guardian or curator by having first obtained permission by the
+order of a judge, for which no fee is to be payable: and if the judge
+makes the order, and the debtor in pursuance thereof makes payment, he
+is completely protected by this form of discharge. Supposing, however,
+that the form of payment be other than that which we have fixed, and
+that the pupil, though he still has the money in his possession, or has
+been otherwise enriched by it, attempts to recover the debt by action,
+he can be repelled by the plea of fraud. If on the other hand he has
+squandered the money or had it stolen from him, the plea of fraud will
+not avail the debtor, who will be condemned to pay again, as a penalty
+for having carelessly paid without the guardian's authority, and not
+in accordance with our regulation. Pupils of either sex cannot validly
+satisfy a debt without their guardian's authority, because the money
+paid does not become the creditor's property; the principle being that
+no pupil is capable of alienation without his guardian's sanction.
+
+
+
+
+TITLE IX. OF PERSONS THROUGH WHOM WE ACQUIRE
+
+We acquire property not only by our own acts, but also by the acts
+of persons in our power, of slaves in whom we have a usufruct, and of
+freemen and slaves belonging to another but whom we possess in good
+faith. Let us now examine these cases in detail.
+
+1 Formerly, whatever was received by a child in power of either sex,
+with the exception of military peculium, was acquired for the parent
+without any distinction; and the parent was entitled to give away or
+sell to one child, or to a stranger, what had been acquired through
+another, or dispose of it in any other way that he pleased. This,
+however, seemed to us to be a cruel rule, and consequently by a general
+constitution which we have issued we have improved the children's
+position, and yet reserved to parents all that was their due. This
+enacts that whatever a child gains by and through property, of which
+his father allows him the control, is acquired, according to the old
+practice, for the father alone; for what unfairness is there in property
+derived from the father returning to him? But of anything which the
+child derives from any source other than his father, though his father
+will have a usufruct therein, the ownership is to belong to the child,
+that he may not have the mortification of seeing the gains which he has
+made by his own toil or good fortune transferred to another.
+
+2 We have also made a new rule relating to the right which a father had
+under earlier constitutions, when he emancipated a child, of retaining
+absolutely, if he pleased, a third part of such property of the child
+as he himself had no ownership in, as a kind of consideration for
+emancipating him. The harsh result of this was that a son was by
+emancipation deprived of the ownership of a third of his property; and
+thus the honour which he got by being emancipated and made independent
+was balanced by the diminution of his fortune. We have therefore enacted
+that the parent, in such a case, shall no longer retain the ownership of
+a third of the child's property, but, in lieu thereof, the usufruct of
+one half; and thus the son will remain absolute owner of the whole of
+his fortune, while the father will reap a greater benefit than before,
+by being entitled to the enjoyment of a half instead of a third.
+
+3 Again, all rights which your slaves acquire by tradition, stipulation,
+or any other title, are acquired for you, even though the acquisition be
+without your knowledge, or even against your will; for a slave, who
+is in the power of another person, can have nothing of his own.
+Consequently, if he is instituted heir, he must, in order to be able to
+accept the inheritance, have the command of his master; and if he has
+that command, and accepts the inheritance, it is acquired for his master
+exactly as if the latter had himself been instituted heir; and it is
+precisely the same with a legacy. And not only is ownership acquired for
+you by those in your power, but also possession; for you are deemed to
+possess everything of which they have obtained detention, and thus
+they are to you instruments through whom ownership may be acquired by
+usucapion or long possession.
+
+4 Respecting slaves in whom a person has only a usufruct, the rule is,
+that what they acquire by means of the property of the usufructuary,
+or by their own work, is acquired for him; but what they acquire by
+any other means belongs to their owner, to whom they belong themselves.
+Accordingly, if such a slave is instituted heir, or made legatee
+or donee, the succession, legacy, or gift is acquired, not for the
+usufructuary, but for the owner. And a man who in good faith possesses a
+free man or a slave belonging to another person has the same rights as
+a usufructuary; what they acquire by any other mode than the two we have
+mentioned belongs in the one case to the free man, in the other to the
+slave's real master. After a possessor in good faith has acquired the
+ownership of a slave by usucapion, everything which the slave acquires
+belongs to him without distinction; but a fructuary cannot acquire
+ownership of a slave in this way, because in the first place he does not
+possess the slave at all, but has merely a right of usufruct in him,
+and because in the second place he is aware of the existence of another
+owner. Moreover, you can acquire possession as well as ownership through
+slaves in whom you have a usufruct or whom you possess in good faith,
+and through free persons whom in good faith you believe to be your
+slaves, though as regards all these classes we must be understood to
+speak with strict reference to the distinction drawn above, and to mean
+only detention which they have obtained by means of your property or
+their own work.
+
+5 From this it appears that free men not subject to your power, or whom
+you do not possess in good faith, and other persons' slaves, of whom
+you are neither usufructuaries nor just possessors, cannot under any
+circumstances acquire for you; and this is the meaning of the maxim
+that a man cannot be the means of acquiring anything for one who is
+a stranger in relation to him. To this maxim there is but one
+exception--namely, that, as is ruled in a constitution of the Emperor
+Severus, a free person, such as a general agent, can acquire possession
+for you, and that not only when you know, but even when you do not know
+of the fact of the acquisition: and through this possession ownership
+can be immediately acquired also, if it was the owner who delivered the
+thing; and if it was not, it can be acquired ultimately by usucapion or
+by the plea of long possession.
+
+6 So much at present concerning the modes of acquiring rights over
+single things: for direct and fiduciary bequests, which are also among
+such modes, will find a more suitable place in a later portion of our
+treatise. We proceed therefore to the titles whereby an aggregate of
+rights is acquired. If you become the successors, civil or praetorian,
+of a person deceased, or adopt an independent person by adrogation, or
+become assignees of a deceased's estate in order to secure their liberty
+to slaves manumitted by his will, the whole estate of those persons is
+transferred to you in an aggregate mass. Let us begin with inheritances,
+whose mode of devolution is twofold, according as a person dies testate
+or intestate; and of these two modes we will first treat of acquisition
+by will. The first point which here calls for exposition is the mode in
+which wills are made.
+
+
+
+
+TITLE X. OF THE EXECUTION OF WILLS
+
+The term testament is derived from two words which mean a signifying of
+intention.
+
+1 Lest the antiquities of this branch of law should be entirely
+forgotten, it should be known that originally two kinds of testaments
+were in use, one of which our ancestors employed in times of peace and
+quiet, and which was called the will made in the comitia calata, while
+the other was resorted to when they were setting out to battle, and was
+called procinctum. More recently a third kind was introduced, called the
+will by bronze and balance, because it was made by mancipation, which
+was a sort of fictitious sale, in the presence of five witnesses and a
+balance holder, all Roman citizens above the age of puberty, together
+with the person who was called the purchaser of the family. The two
+first-mentioned kinds of testament, however, went out of use even in
+ancient times, and even the third, or will by bronze and balance, though
+it has remained in vogue longer than they, has become partly disused.
+
+2 All these three kinds of will which we have mentioned belonged to the
+civil law, but later still a fourth form was introduced by the praetor's
+edict; for the new law of the praetor, or ius honorarium, dispensed
+with mancipation, and rested content with the seals of seven witnesses,
+whereas the seals of witnesses were not required by the civil law.
+
+3 When, however, by a gradual process the civil and praetorian
+laws, partly by usage, partly by definite changes introduced by the
+constitution, came to be combined into a harmonious whole, it was
+enacted that a will should be valid which was wholly executed at one
+time and in the presence of seven witnesses (these two points being
+required, in a way, by the old civil law), to which the witnesses
+signed their names--a new formality imposed by imperial legislation--and
+affixed their seals, as had been required by the praetor's edict. Thus
+the present law of testament seems to be derived from three distinct
+sources; the witnesses, and the necessity of their all being present
+continuously through the execution of the will in order that the
+execution may be valid, coming from the civil law: the signing of
+the document by the testator and the witnesses being due to imperial
+constitutions, and the exact number of witnesses, and the sealing of the
+will by them, to the praetor's edict.
+
+4 An additional requirement imposed by our constitution, in order to
+secure the genuineness of testaments and prevent forgery, is that
+the name of the heir shall be written by either the testator or the
+witnesses, and generally that everything shall be done according to the
+tenor of that enactment.
+
+5 The witnesses may all seal the testament with the same seal; for, as
+Pomponius remarks, what if the device on all seven seals were the same?
+It is also lawful for a witness to use a seal belonging to another
+person.
+
+6 Those persons only can be witnesses who are legally capable of
+witnessing a testament. Women, persons below the age of puberty, slaves,
+lunatics, persons dumb or deaf, and those who have been interdicted from
+the management of their property, or whom the law declares worthless and
+unfitted to perform this office, cannot witness a will.
+
+7 In cases where one of the witnesses to a will was thought free at the
+time of its execution, but was afterwards discovered to be a slave, the
+Emperor Hadrian, in his rescript to Catonius Verus, and afterwards the
+Emperors Severus and Antoninus declared that of their goodness they
+would uphold such a will as validly made; for, at the time when it was
+sealed, this witness was admitted by all to be free, and, as such, had
+had his civil position called in question by no man.
+
+8 A father and a son in his power, or two brothers who are both in the
+power of one father, can lawfully witness the same testament, for there
+can be no harm in several persons of the same family witnessing together
+the act of a man who is to them a stranger.
+
+9 No one, however, ought to be among the witnesses who is in the
+testator's power, and if a son in power makes a will of military
+peculium after his discharge, neither his father nor any one in his
+father's power is qualified to be a witness; for it is not allowed to
+support a will by the evidence of persons in the same family with the
+testator.
+
+10 No will, again, can be witnessed by the person instituted heir, or
+by any one in his power, or by a father in whose power he is, or by a
+brother under the power of the same father: for the execution of a will
+is considered at the present day to be purely and entirely a transaction
+between the testator and the heir. Through mistaken ideas on this matter
+the whole law of testamentary evidence fell into confusion: for the
+ancients, though they rejected the evidence of the purchaser of the
+family and of persons connected with him by the tie of power, allowed
+a will to be witnessed by the heir and persons similarly connected with
+him, though it must be admitted that they accompanied this privilege
+with urgent cautions against its abuse. We have, however, amended this
+rule, and enacted in the form of law what the ancients expressed in the
+form only of advice, by assimilating the heir to the old purchaser of
+the family, and have rightly forbidden the heir, who now represents that
+character, and all other persons connected with him by the tie referred
+to, to bear witness in a matter in which, in a sense, they would be
+witnesses in their own behalf. Accordingly, we have not allowed earlier
+constitutions on this subject to be inserted in our Code.
+
+11 Legatees, and persons who take a benefit under a will by way of
+trust, and those connected with them, we have not forbidden to be
+witnesses, because they are not universal successors of the deceased:
+indeed, by one of our constitutions we have specially granted this
+privilege to them, and, a fortiori, to persons in their power, or in
+whose power they are.
+
+12 It is immaterial whether the will be written on a tablet, paper,
+parchment, or any other substance: and a man may execute any number of
+duplicates of his will, for this is sometimes necessary, though in each
+of them the usual formalities must be observed. For instance, a person
+setting out upon a voyage may wish to take a statement of his last
+wishes along with him, and also to leave one at home; and numberless
+other circumstances which happen to a man, and over which he has no
+control, will make this desirable.
+
+14 So far of written wills. When, however, one wishes to make a will
+binding by the civil law, but not in writing, he may summon seven
+witnesses, and in their presence orally declare his wishes; this, it
+should be observed, being a form of will which has been declared by
+constitutions to be perfectly valid by civil law.
+
+
+
+
+TITLE XI. OF SOLDIERS' WILLS
+
+Soldiers, in consideration of their extreme ignorance of law, have
+been exempted by imperial constitutions from the strict rules for the
+execution of a testament which have been described. Neither the legal
+number of witnesses, nor the observance of the other rules which have
+been stated, is necessary to give force to their wills, provided, that
+is to say, that they are made by them while on actual service; this
+last qualification being a new though wise one introduced by our
+constitution. Thus, in whatever mode a soldier's last wishes are
+declared, whether in writing or orally, this is a binding will, by force
+of his mere intention. At times, however, when they are not employed
+on actual service, but are living at home or elsewhere, they are not
+allowed to claim this privilege: they may make a will, even though they
+be sons in power, in virtue of their service, but they must observe the
+ordinary rules, and are bound by the forms which we described above as
+requisite in the execution of wills of civilians.
+
+1 Respecting the testaments of soldiers the Emperor Trajan sent a
+rescript to Statilius Severus in the following terms: 'The privilege
+allowed to soldiers of having their wills upheld, in whatever manner
+they are made, must be understood to be limited by the necessity of
+first proving that a will has been made at all; for a will can be made
+without writing even by civilians. Accordingly, with reference to the
+inheritance which is the subject of the action before you, if it can be
+shown that the soldier who left it, did in the presence of witnesses,
+collected expressly for this purpose, declare orally who he wished to be
+his heir, and on what slaves he wished to confer liberty, it may well
+be maintained that in this way he made an unwritten testament, and his
+wishes therein declared ought to be carried out. But if, as is so common
+in ordinary conversation, he said to some one, I make you my heir, or, I
+leave you all my property, such expressions cannot be held to amount to
+a testament, and the interest of the very soldiers, who are privileged
+in the way described, is the principal ground for rejecting such a
+precedent. For if it were admitted, it would be easy, after a soldier's
+death, to procure witnesses to affirm that they had heard him say he
+left his property to any one they pleased to name, and in this way it
+would be impossible to discover the true intentions of the deceased.'
+
+2 A soldier too may make a will though dumb and deaf.
+
+3 This privilege, however, which we have said soldiers enjoy, is allowed
+them by imperial constitutions only while they are engaged on actual
+service, and in camp life. Consequently, if veterans wish to make a will
+after their discharge, or if soldiers actually serving wish to do this
+away from camp, they must observe the forms prescribed for all
+citizens by the general law; and a testament executed in camp without
+formalities, that is to say, not according to the form prescribed by
+law, will remain valid only for one year after the testator's discharge.
+Supposing then that the testator died within a year, but that a
+condition, subject to which the heir was instituted, was not fulfilled
+within the year, would it be feigned that the testator was a soldier at
+the date of his decease, and the testament consequently upheld? and this
+question we answer in the affirmative.
+
+4 If a man, before going on actual service, makes an invalid will,
+and then during a campaign opens it, and adds some new disposition, or
+cancels one already made, or in some other way makes it clear that he
+wishes it to be his testament, it must be pronounced valid, as being, in
+fact, a new will made by the man as a soldier.
+
+5 Finally, if a soldier is adrogated, or, being a son in power, is
+emancipated, his previously executed will remains good by the fiction
+of a new expression of his wishes as a soldier, and is not deemed to be
+avoided by his loss of status.
+
+6 It is, however, to be observed that earlier statutes and imperial
+constitutions allowed to children in power in certain cases a civil
+peculium after the analogy of the military peculium, which for that
+reason was called quasimilitary, and of which some of them were
+permitted to dispose by will even while under power. By an extension
+of this principle our constitution has allowed all persons who have a
+peculium of this special kind to dispose of it by will, though subject
+to the ordinary forms of law. By a perusal of this constitution the
+whole law relating to this privilege may be ascertained.
+
+
+
+
+TITLE XII. OF PERSONS INCAPABLE OF MAKING WILLS
+
+Certain persons are incapable of making a lawful will. For instance,
+those in the power of others are so absolutely incapable that they
+cannot make a testament even with the permission of their parents, with
+the exception of those whom we have enumerated, and particularly of
+children in power who are soldiers, and who are permitted by imperial
+constitution to dispose by will of all they may acquire while on actual
+service. This was allowed at first only to soldiers on active service,
+by the authority of the Emperors Augustus and Nerva, and of the
+illustrious Emperor Trajan; afterwards, it was extended by an enactment
+of the Emperor Hadrian to veterans, that is, soldiers who had received
+their discharge. Accordingly, if a son in power makes a will of his
+military peculium, it will belong to the person whom he institutes
+as heir: but if he dies intestate, leaving no children or brothers
+surviving him, it will go to the parent in whose power he is, according
+to the ordinary rule. From this it can be understood that a parent
+has no power to deprive a son in his power of what he has acquired on
+service, nor can the parent's creditors sell or otherwise touch it; and
+when the parent dies it is not shared between the soldier's son and
+his brothers, but belongs to him alone, although by the civil law the
+peculium of a person in power is always reckoned as part of the property
+of the parent, exactly as that of a slave is deemed part of the property
+of his master, except of course such property of the son as by imperial
+constitutions, and especially our own, the parent is unable to acquire
+in absolute ownership. Consequently, if a son in power, not having a
+military or quasimilitary peculium, makes a will, it is invalid, even
+though he is released from power before his decease.
+
+1 Again, a person under the age of puberty is incapable of making a
+will, because he has no judgement, and so too is a lunatic, because he
+has lost his reason; and it is immaterial that the one reaches the age
+of puberty, and the other recovers his faculties, before his decease.
+If, however, a lunatic makes a will during a lucid interval, the will
+is deemed valid, and one is certainly valid which he made before he
+lost his reason: for subsequent insanity never avoids a duly executed
+testament or any other disposition validly made.
+
+2 So too a spendthrift, who is interdicted from the management of his
+own affairs, is incapable of making a valid will, though one made by him
+before being so interdicted holds good.
+
+3 The deaf, again, and the dumb cannot always make a will, though here
+we are speaking not of persons merely hard of hearing, but of total
+deafness, and similarly by a dumb person is meant one totally dumb, and
+not one who merely speaks with difficulty; for it often happens that
+even men of culture and learning by some cause or other lose the
+faculties of speech and hearing. Hence relief has been afforded them by
+our constitution, which enables them, in certain cases and in certain
+modes therein specified, to make a will and other lawful dispositions.
+If a man, after making his will, becomes deaf or dumb through ill health
+or any other cause, it remains valid notwithstanding.
+
+4 A blind man cannot make a will, except by observing the forms
+introduced by a law of our imperial father Justin.
+
+5 A will made by a prisoner while in captivity with the enemy is
+invalid, even though he subsequently returns. One made, however,
+while he was in his own state is valid, if he returns, by the law of
+postliminium; if he dies in captivity it is valid by the lex Cornelia.
+
+
+
+
+TITLE XIII. OF THE DISINHERISON OF CHILDREN
+
+The law, however, is not completely satisfied by the observance of the
+rules hereinbefore explained. A testator who has a son in his power must
+take care either to institute him heir, or to specially disinherit him,
+for passing him over in silence avoids the will; and this rule is so
+strict, that even if the son die in the lifetime of the father no heir
+can take under the will, because of its original nullity. As regards
+daughters and other descendants of either sex by the male line, the
+ancients did not observe this rule in all its strictness; for if these
+persons were neither instituted nor disinherited, the will was not
+avoided, but they were entitled to come in with the instituted heirs,
+and to take a certain portion of the inheritance. And these persons the
+ascendant was not obliged to specially disinherit; he could disinherit
+them collectively by a general clause.
+
+1 Special disinherison may be expressed in these terms--'Be Titius
+my son disinherited,' or in these, 'Be my son disinherited,' without
+inserting the name, supposing there is no other son. Children born
+after the making of the will must also be either instituted heirs or
+disinherited, and in this respect are similarly privileged, that if a
+son or any other family heir, male or female, born after the making of
+the will, be passed over in silence, the will, though originally valid,
+is invalidated by the subsequent birth of the child, and so becomes
+completely void. Consequently, if the woman from whom a child was
+expected to have an abortive delivery, there is nothing to prevent the
+instituted heirs from taking the inheritance. It was immaterial
+whether the female family heirs born after the making of the will were
+disinherited specially or by a general clause, but if the latter mode be
+adopted, some legacy must be left them in order that they may not seem
+to have been passed over merely through inadvertence: but male
+family heirs born after the making of the will, sons and other lineal
+descendants, are held not to be properly disinherited unless they are
+disinherited specially, thus: 'Be any son that shall be born to me
+disinherited.'
+
+2 With children born after the making of the will are classed children
+who succeed to the place of a family heir, and who thus, by an event
+analogous to subsequent birth, become family heirs to an ancestor.
+For instance, if a testator have a son, and by him a grandson or
+granddaughter in his power, the son alone, being nearer in degree,
+has the right of a family heir, although the grandchildren are in the
+testator's power equally with him. But if the son die in the testator's
+lifetime, or is in some other way released from his power, the
+grandson and granddaughter succeed to his place, and thus, by a kind of
+subsequent birth, acquire the rights of family heirs. To prevent this
+subsequent avoidance of one's will, grandchildren by a son must be
+either instituted heirs or disinherited, exactly as, to secure the
+original validity of a testament, a son must be either instituted or
+specially disinherited; for if the son die in the testator's lifetime,
+the grandson and granddaughter take his place, and avoid the will just
+as if they were children born after its execution. And this disinherison
+was first allowed by the lex Iunia Vallaea, which explains the form
+which is to be used, and which resembles that employed in disinheriting
+family heirs born after the making of a will.
+
+3 It is not necessary, by the civil law, to either institute or
+disinherit emancipated children, because they are not family heirs. But
+the praetor requires all, females as well as males, unless instituted,
+to be disinherited, males specially, females collectively; and if they
+are neither appointed heirs nor disinherited as described, the praetor
+promises them possession of goods against the will.
+
+4 Adopted children, so long as they are in the power of their adoptive
+father, are in precisely the same legal position as children born
+in lawful wedlock; consequently they must be either instituted or
+disinherited according to the rules stated for the disinherison of
+natural children. When, however, they have been emancipated by their
+adoptive father, they are no longer regarded as his children either
+by the civil law or by the praetor's edict. Conversely, in relation to
+their natural father, so long as they remain in the adoptive family they
+are strangers, so that he need neither institute nor disinherit them:
+but when emancipated by their adoptive father, they have the same rights
+in the succession to their natural father as they would have had if it
+had been he by whom they were emancipated. Such was the law introduced
+by our predecessors.
+
+5 Deeming, however, that between the sexes, to each of which nature
+assigns an equal share in perpetuating the race of man, there is in this
+matter no real ground of distinction, and marking that, by the ancient
+statute of the Twelve Tables, all were called equally to the succession
+on the death of their ancestor intestate (which precedent the praetors
+also seem to have subsequently followed), we have by our constitution
+introduced a simple system of the same kind, applying uniformly to sons,
+daughters, and other descendants by the male line, whether born before
+or after the making of the will. This requires that all children,
+whether family heirs or emancipated, shall be specially disinherited,
+and declares that their pretermission shall have the effect of avoiding
+the will of their parent, and depriving the instituted heirs of the
+inheritance, no less than the pretermission of children who are family
+heirs or who have been emancipated, whether already born, or born after,
+though conceived before the making of the will. In respect of adoptive
+children we have introduced a distinction, which is explained in our
+constitution on adoptions.
+
+6 If a soldier engaged on actual service makes a testament without
+specially disinheriting his children, whether born before or after the
+making of the will, but simply passing over them in silence, though he
+knows that he has children, it is provided by imperial constitutions
+that his silent pretermission of them shall be equivalent to special
+disinherison.
+
+7 A mother or maternal grandfather is not bound to institute her or his
+children or grandchildren; they may simply omit them, for silence on the
+part of a mother, or of a maternal grandfather or other ascendant, has
+the same effect as actual disinherison by a father. For neither by the
+civil law, nor by that part of the praetor's edict in which he promises
+children who are passed over possession of goods against the will, is
+a mother obliged to disinherit her son or daughter if she does not
+institute them heirs, or a maternal grandfather to be equally precise
+with reference to grandchildren by a daughter: though such children and
+grandchildren, if omitted, have another remedy, which will shortly be
+explained.
+
+
+
+
+TITLE XIV. OF THE INSTITUTION OF THE HEIR
+
+A man may institute as his heirs either free men or slaves, and either
+his own slaves or those of another man. If he wished to institute
+his own slave it was formerly necessary, according to the more common
+opinion, that he should expressly give him his liberty in the will:
+but now it is lawful, by our constitution, to institute one's own slave
+without this express manumission--a change not due to any spirit of
+innovation, but to a sense of equity, and one whose principle was
+approved by Atilicinus, as it is stated by Seius in his books on
+Masurius Sabinus and on Plautius. Among a testator's own slaves is to be
+reckoned one of whom he is bare owner, the usufruct being vested in some
+other person. There is, however, one case in which the institution of a
+slave by his mistress is void, even though freedom be given him in
+the will, as is provided by a constitution of the Emperors Severus and
+Antoninus in these terms: 'Reason demands that no slave, accused of
+criminal intercourse with his mistress, shall be capable of being
+manumitted, before his sentence is pronounced, by the will of the woman
+who is accused of participating in his guilt: accordingly if he be
+instituted heir by that mistress, the institution is void.' Among 'other
+persons' slaves' is reckoned one in whom the testator has a usufruct.
+
+1 If a slave is instituted heir by his own master, and continues in that
+condition until his master's decease, he becomes by the will both free,
+and necessary heir. But if the testator himself manumits him in his
+lifetime, he may use his own discretion about acceptance; for he is not
+a necessary heir, because, though he is named heir to the testament, it
+was not by that testament that he became free. If he has been alienated,
+he must have the order of his new master to accept, and then his master
+becomes heir through him, while he personally becomes neither heir nor
+free, even though his freedom was expressly given him in the testament,
+because by alienating him his former master is presumed to have
+renounced the intention of enfranchising him. When another person's
+slave is instituted heir, if he continues in the same condition he
+must have the order of his master to accept; if alienated by him in
+the testator's lifetime, or after the testator's death but before
+acceptance, he must have the order of the alienee to accept; finally, if
+manumitted in the testator's lifetime, or after the testator's death but
+before acceptance, he may accept or not at his own discretion.
+
+2 A slave who does not belong to the testator may be instituted heir
+even after his master's decease, because slaves who belong to an
+inheritance are capable of being instituted or made legatees; for an
+inheritance not yet accepted represents not the future heir but the
+person deceased. Similarly, the slave of a child conceived but not yet
+born may be instituted heir.
+
+3 If a slave belonging to two or more joint owners, both or all of whom
+are legally capable of being made heirs or legatees, is instituted heir
+by a stranger, he acquires the inheritance for each and all of the joint
+owners by whose orders he accepts it in proportion to the respective
+shares in which they own him.
+
+4 A testator may institute either a single heir, or as many as he
+pleases.
+
+5 An inheritance is usually divided into twelve ounces, and is denoted
+in the aggregate by the term as, and each fraction of this aggregate,
+ranging from the ounce up to the as or pound, has its specific name, as
+follows: sextans (1/6), quadrans (1/4), triens (1/3), quincunx (5/12),
+semis (1/2), septunx (7/12), bes (2/3), dodrans (3/4), dextans (5/6),
+deunx (11/12), and as it is not necessary, however, that there
+should always be twelve ounces, for for the purposes of testamentary
+distribution an as may consist of as many ounces as the testator
+pleases; for instance, if a testator institutes only a single heir,
+but declares that he is to be heir ex semisse, or to one half of the
+inheritance, this half will really be the whole, for no one can die
+partly testate and partly intestate, except soldiers, in the carrying
+out of whose wills the intention is the only thing regarded. Conversely,
+a testator may divide his inheritance into as large a number of ounces
+as he pleases.
+
+6 If more heirs than one are instituted, it is unnecessary for the
+testator to assign a specific share in the inheritance to each, unless
+he intends that they shall not take in equal portions; for it is obvious
+that if no shares are specified they divide the inheritance equally
+between them. Supposing, however, that specific shares are assigned to
+all the instituted heirs except one, who is left without any express
+share at all, this last heir will be entitled to any fraction of the as
+which has not been disposed of; and if there are two or more heirs
+to whom no specific shares have been assigned, they will divide this
+unassigned fraction equally between them. Finally, if the whole as has
+been assigned in specific shares to some of the heirs, the one or more
+who have no specific shares take half of the inheritance, while the
+other half is divided among the rest according to the shares assigned to
+them; and it is immaterial whether the heir who has no specified share
+come first or last in the institution, or occupies some intermediate
+place; for such share is presumed to be given to him as is not in some
+other way disposed of.
+
+7 Let us now see how the law stands if some part remains undisposed of,
+and yet each heir has his share assigned to him--if, for instance
+there are three heirs instituted, and each is assigned a quarter of the
+inheritance. It is evident that in this case the part undisposed of will
+go to them in proportion to the share each has assigned to him by
+the will, and it will be exactly as if they had each been originally
+instituted to a third. Conversely, if each heir is given so large a
+fraction that the as will be exceeded, each must suffer a proportionate
+abatement; thus if four heirs are instituted, and to each is assigned
+a third of the inheritance, it will be the same as if each had been
+originally instituted to a quarter.
+
+8 If more than twelve ounces are distributed among some of the heirs
+only, one being left without a specific share, he will have what is
+wanting to complete the second as; and the same will be done if more
+than twenty-four ounces are distributed, leaving him shareless; but all
+these ideal sums are afterwards reduced to the single as, whatever be
+the number of ounces they comprise.
+
+9 The institution of the heir may be either absolute or conditional, but
+no heir can be instituted from, or up to, some definite date, as, for
+instance, in the following form--'be so and so my heir after five years
+from my decease,' or 'after the calends of such a month,' or 'up to and
+until such calends'; for a time limitation in a will is considered a
+superfluity, and an heir instituted subject to such a time limitation is
+treated as heir absolutely.
+
+10 If the institution of an heir, a legacy, a fiduciary bequest, or a
+testamentary manumission is made to depend on an impossible condition,
+the condition is deemed unwritten, and the disposition absolute.
+
+11 If an institution is made to depend on two or more conditions,
+conjunctively expressed,--as, for instance, 'if this and that shall be
+done'--all the conditions must be satisfied: if they are expressed
+in the alternative, or disjunctively--as 'if this or that shall be
+done'--it is enough if one of them alone is satisfied.
+
+12 A testator may institute as his heir a person whom he has never seen,
+for instance, nephews who have been born abroad and are unknown to him:
+for want of this knowledge does not invalidate the institution.
+
+
+
+
+TITLE XV. OF ORDINARY SUBSTITUTION
+
+A testator may institute his heirs, if he pleases, in two or more
+degrees, as, for instance, in the following form: 'If A shall not be
+my heir, then let B be my heir'; and in this way he can make as many
+substitutions as he likes, naming in the last place one of his own
+slaves as necessary heir, in default of all others taking.
+
+1 Several may be substituted in place of one, or one in place of
+several, or to each heir may be substituted a new and distinct person,
+or, finally, the instituted heirs may be substituted reciprocally in
+place of one another.
+
+2 If heirs who are instituted in equal shares are reciprocally
+substituted to one another, and the shares which they are to have in
+the substitution are not specified, it is presumed (as was settled by
+a rescript of the Emperor Pius) that the testator intended them to take
+the same shares in the substitution as they took directly under the
+will.
+
+3 If a third person is substituted to one heir who himself is
+substituted to his coheir, the Emperors Severus and Antoninus decided
+by rescript that this third person is entitled to the shares of both
+without distinction.
+
+4 If a testator institutes another man's slave, supposing him to be an
+independent person, and substitutes Maevius in his place to meet the
+case of his not taking the inheritance, then, if the slave accepts
+by the order of his master, Maevius is entitled to a half. For, when
+applied to a person whom the testator knows to be in the power of
+another, the words 'if he shall not be my heir' are taken to mean 'if
+he shall neither be heir himself nor cause another to be heir'; but when
+applied to a person whom the testator supposes to be independent, they
+mean 'if he shall not acquire the inheritance either for himself, or for
+that person to whose power he shall subsequently become subject,' and
+this was decided by Tiberius Caesar in the case of his slave Parthenius.
+
+
+
+
+TITLE XVI. OF PUPILLARY SUBSTITUTION
+
+To children below the age of puberty and in the power of the testator,
+not only can such a substitute as we have described be appointed, that
+is, one who shall take on their failing to inherit, but also one who
+shall be their heir if, after inheriting, they die within the age of
+puberty; and this may be done in the following terms, 'Be my son Titius
+my heir; and if he does not become my heir, or, after becoming my heir,
+die before becoming his own master (that is, before reaching puberty),
+then be Seius my heir.' In which case, if the son fails to inherit,
+the substitute is the heir of the testator; but if the son, after
+inheriting, dies within the age of puberty, he is the heir of the son.
+For it is a rule of customary law, that when our children are too young
+to make wills for themselves, their parents may make them for them.
+
+1 The reason of this rule has induced us to assert in our Code a
+constitution, providing that if a testator has children, grandchildren,
+or greatgrandchildren who are lunatics or idiots, he may, after the
+analogy of pupillary substitution, substitute certain definite persons
+to them, whatever their sex or the nearness of their relationship to
+him, and even though they have reached the age of puberty; provided
+always that on their recovering their faculties such substitution shall
+at once become void, exactly as pupillary substitution proper ceases to
+have any operation after the pupil has reached puberty.
+
+2 Thus, in pupillary substitution effected in the form described, there
+are, so to speak, two wills, the father's and the son's, just as if the
+son had personally instituted an heir to himself; or rather, there is
+one will dealing with two distinct matters, that is, with two distinct
+inheritances.
+
+3 If a testator be apprehensive that, after his own death, his son,
+while still a pupil, may be exposed to the danger of foul play, because
+another person is openly substituted to him, he ought to make the
+ordinary substitution openly, and in the earlier part of the testament,
+and write the other substitution, wherein a man is named heir on the
+succession and death of the pupil, separately on the lower part of the
+will; and this lower part he should tie with a separate cord and fasten
+with a separate seal, and direct in the earlier part of the will that it
+shall not be opened in the lifetime of the son before he attains the age
+of puberty. Of course a substitution to a son under the age of puberty
+is none the less valid because it is a integral part of the very will
+in which the testator has instituted him his heir, though such an open
+substitution may expose the pupil to the danger of foul play.
+
+4 Not only when we leave our inheritance to children under the age
+of puberty can we make such a substitution, that if they accept the
+inheritance, and then die under that age, the substitute is their heir,
+but we can do it when we disinherit them, so that whatever the pupil
+acquires by way of inheritance, legacy or gift from his relatives or
+friends, will pass to the substitute. What has been said of
+substitution to children below the age of puberty, whether instituted or
+disinherited, is true also of substitution to afterborn children.
+
+5 In no case, however, may a man make a will for his children unless
+he makes one also for himself; for the will of the pupil is but a
+complementary part of the father's own testament; accordingly, if the
+latter is void, the former will be void also.
+
+6 Substitution may be made either to each child separately, or only to
+such one of them as shall last die under the age of puberty. The first
+is the proper plan, if the testator's intention is that none of them
+shall die intestate: the second, if he wishes that, as among them, the
+order of succession prescribed by the Twelve Tables shall be strictly
+preserved.
+
+7 The person substituted in the place of a child under the age of
+puberty may be either named individually--for instance, Titius--or
+generally prescribed, as by the words 'whoever shall be my heir'; in
+which latter case, on the child dying under the age of puberty,
+those are called to the inheritance by the substitution who have been
+instituted heirs and have accepted, their shares in the substitution
+being proportionate to the shares in which they succeeded the father.
+
+8 This kind of substitution may be made to males up to the age of
+fourteen, and to females up to that of twelve years; when this age is
+once passed, the substitution becomes void.
+
+9 To a stranger, or a child above the age of puberty whom a man has
+instituted heir, he cannot appoint a substitute to succeed him if he
+take and die within a certain time: he has only the power to bind him by
+a trust to convey the inheritance to another either wholly or in part;
+the law relating to which subject will be explained in its proper place.
+
+
+
+
+TITLE XVII. OF THE MODES IN WHICH WILLS BECOME VOID
+
+A duly executed testament remains valid until either revoked or
+rescinded.
+
+1 A will is revoked when, though the civil condition of the testator
+remains unaltered, the legal force of the will itself is destroyed, as
+happens when, after making his will, a man adopts as his son either an
+independent person, in which case the adoption is effected by imperial
+decree, or a person already in power, when it is done through the agency
+of the praetor according to our constitution. In both these cases the
+will is revoked, precisely as it would be by the subsequent birth of a
+family heir.
+
+2 Again, a subsequent will duly executed is a revocation of a prior
+will, and it makes no difference whether an heir ever actually takes
+under it or not; the only question is whether one might conceivably have
+done so. Accordingly, whether the person instituted declines to be heir,
+or dies in the lifetime of the testator, or after his death but before
+accepting the inheritance, or is excluded by failure of the condition
+under which he was instituted--in all the cases the testator dies
+intestate; for the earlier will is revoked by the later one, and the
+later one is inoperative, as no heir takes under it.
+
+3 If, after duly making one will, a man executes a second one which is
+equally valid, the Emperors Severus and Antoninus decided by rescript
+that the first is revoked by the second, even though the heir instituted
+in the second is instituted to certain things only. The terms of this
+enactment we have ordered to be inserted here, because it contains
+another provision. 'The Emperors Severus and Antoninus to Cocceius
+Campanus. A second will, although the heir named therein be instituted
+to certain things only, is just as valid as if no mention of the things
+had been made: but the heir is bound to content himself with the things
+given him, or with such further portion of the inheritance as will make
+up the fourth part to which he is entitled under the lex Falcidia, and
+(subject thereto) to transfer the inheritance to the persons instituted
+in the earlier will: for the words inserted in the later will
+undoubtedly contain the expression of a wish that the earlier one shall
+remain valid.' This accordingly is a mode in which a testament may be
+revoked.
+
+4 There is another event by which a will duly executed may be
+invalidated, namely, the testator's undergoing a loss of status: how
+this may happen was explained in the preceding Book.
+
+5 In this case the will may be said to be rescinded, though both those
+that are revoked, and those that are not duly executed, may be said to
+become or be rescinded; and similarly too those which are duly executed
+but subsequently rescinded by loss of status may be said to be revoked.
+However, as it is convenient that different grounds of invalidity should
+have different names to distinguish them, we say that some wills are
+unduly executed from the commencement, while others which are duly
+executed are either revoked or rescinded.
+
+6 Wills, however, which, though duly executed, are subsequently
+rescinded by the testator's undergoing loss of status are not altogether
+inoperative: for if the seals of seven witnesses are attached, the
+instituted heir is entitled to demand possession in accordance with the
+will, if only the testator were a citizen of Rome and independent at
+the time of his decease; but if the cause of the rescission was
+the testator's subsequent loss of citizenship or of freedom, or his
+adoption, and he dies an alien, or slave, or subject to his adoptive
+father's power, the instituted heir is barred from demanding possession
+in accordance with the will.
+
+7 The mere desire of a testator that a will which he has executed shall
+no longer have any validity is not, by itself, sufficient to avoid
+it; so that, even if he begins to make a later will, which he does not
+complete because he either dies first, or changes his mind, the first
+will remains good; it being provided in an address of the Emperor
+Pertinax to the Senate that one testament which is duly executed is not
+revoked by a later one which is not duly and completely executed; for an
+incomplete will is undoubtedly null.
+
+8 In the same address the Emperor declared that he would accept no
+inheritance to which he was made heir on account of a suit between the
+testator and some third person, nor would he uphold a will in which he
+was instituted in order to screen some legal defect in its execution,
+or accept an inheritance to which he was instituted merely by word of
+mouth, or take any testamentary benefit under a document defective in
+point of law. And there are numerous rescripts of the Emperors Severus
+and Antoninus to the same purpose: 'for though,' they say, 'the laws do
+not bind us, yet we live in obedience to them.'
+
+
+
+
+TITLE XVIII. OF AN UNDUTEOUS WILL
+
+Inasmuch as the disinherison or omission by parents of their children
+has generally no good reason, those children who complain that they have
+been wrongfully disinherited or passed over have been allowed to bring
+an action impeaching the will as unduteous, under the pretext that the
+testator was of unsound mind at the time of its execution. This does
+not mean that he was really insane, but that the will, though legally
+executed, bears no mark of that affection to which a child is entitled
+from a parent: for if a testator is really insane, his will is void.
+
+1 Parents may impeach the wills of their children as unduteous, as well
+as children those of their parents. Brothers and sisters of the testator
+are by imperial constitutions preferred to infamous persons who are
+instituted to their exclusion, so that it is in these cases only that
+they can bring this action. Persons related to the testator in a further
+degree than as brothers or sisters can in no case bring the action, or
+at any rate succeed in it when brought.
+
+2 Children fully adopted, in accordance with the distinction drawn in
+our constitution, can bring this action as well as natural children, but
+neither can do so unless there is no other mode in which they can obtain
+the property of the deceased: for those who can obtain the inheritance
+wholly or in part by any other title are barred from attacking a will as
+unduteous. Afterborn children too can employ this remedy, if they can by
+no other means recover the inheritance.
+
+3 That they may bring the action must be understood to mean, that
+they may bring it only if absolutely nothing has been left them by the
+testator in his will: a restriction introduced by our constitution out
+of respect for a father's natural rights. If, however, a part of the
+inheritance, however small, or even a single thing is left them, the
+will cannot be impeached, but the heir must, if necessary, make up what
+is given them to a fourth of what they would have taken had the testator
+died intestate, even though the will does not direct that this fourth is
+to be made up by the assessment of an honest and reliable man.
+
+4 If a guardian accepts, under his own father's will, a legacy on behalf
+of the pupil under his charge, the father having left nothing to him
+personally, he is in no way debarred from impeaching his father's will
+as unduteous on his own account.
+
+5 On the other hand, if he impeaches the will of his pupil's father on
+the pupil's behalf, because nothing has been left to the latter, and is
+defeated in the action, he does not lose a legacy given in the same will
+to himself personally.
+
+6 Accordingly, that a person may be barred from the action impeaching
+the will, it is requisite that he should have a fourth of what he would
+have taken on intestacy, either as heir, legatee direct or fiduciary,
+donee in contemplation of death, by gift from the testator in his
+lifetime (though gift of this latter kind bars the action only if made
+under any of the circumstances mentioned in our constitution) or in any
+of the other modes stated in the imperial legislation.
+
+7 In what we have said of the fourth we must be understood to mean that
+whether there be one person only, or more than one, who can impeach the
+will as unduteous, onefourth of the whole inheritance may be given them,
+to be divided among them all proportionately, that is to say, to each
+person a fourth of what he would have had if the testator had died
+intestate.
+
+
+
+
+TITLE XIX. OF THE KINDS AND DIFFERENCES BETWEEN HEIRS
+
+Heirs are of three kinds, that is to say, they are either necessary,
+family heirs and necessary, or external.
+
+1 A necessary heir is a slave of the testator, whom he institutes as
+heir: and he is so named because, willing or unwilling, and without
+any alternative, he becomes free and necessary heir immediately on the
+testator's decease. For when a man's affairs are embarrassed, it is
+common for one of his slaves to be instituted in his will, either in
+the first place, or as a substitute in the second or any later place, so
+that, if the creditors are not paid in full, the heir may be insolvent
+rather than the testator, and his property, rather than the testator's,
+may be sold by the creditors and divided among them. To balance this
+disadvantage he has this advantage, that his acquisitions after the
+testator's decease are for his own sole benefit; and although the estate
+of the deceased is insufficient to pay the creditors in full, the heir's
+subsequent acquisitions are never on that account liable to a second
+sale.
+
+2 Heirs who are both family heirs and necessary are such as a son or a
+daughter, a grandchild by a son, and further similar lineal descendants,
+provided that they are in the ancestor's power at the time of his
+decease. To make a grandson or granddaughter a family heir it is,
+however, not sufficient for them to be in the grandfather's power at
+the moment of his decease: it is further requisite that their own father
+shall, in the lifetime of the grandfather, have ceased to be the family
+heir himself, whether by death or by any other mode of release from
+power: for by this event the grandson and granddaughter succeed to the
+place of their father. They are called family heirs, because they are
+heirs of the house, and even in the lifetime of the parent are to a
+certain extent deemed owners of the inheritance: wherefore in intestacy
+the first right of succession belongs to the children. They are called
+necessary heirs because they have no alternative, but, willing or
+unwilling, both where there is a will and where there is not, they
+become heirs. The praetor, however, permits them, if they wish, to
+abstain from the inheritance, and leave the parent to become insolvent
+rather than themselves.
+
+3 Those who are not subject to the testator's power are called external
+heirs. Thus children of ours who are not in our power, if instituted
+heirs by us, are deemed external heirs; and children instituted by their
+mother belong to this class, because women never have children in
+their power. Slaves instituted heirs by their masters, and manumitted
+subsequently to the execution of the will, belong to the same class.
+
+4 It is necessary that external heirs should have testamentary capacity,
+whether it is an independent person, or some one in his power, who is
+instituted: and this capacity is required at two times; at the same time
+of the making of the will, when, without it, the institution would be
+void; and at the same time of the testator's decease, when, without
+it, the institution would have no effect. Moreover, the instituted
+heir ought to have this capacity also at the time when he accepts
+the inheritance, whether he is instituted absolutely or subject to a
+condition; and indeed it is especially at this time that his capacity to
+take ought to be looked to. If, however, the instituted heir undergoes
+a loss of status in the interval between the making of the will and
+the testator's decease, or the satisfaction of the condition subject to
+which he was instituted, he is not thereby prejudiced: for, as we
+said, there are only three points of time which have to be regarded.
+Testamentary capacity thus does not mean merely capacity to make a will;
+it also means capacity to take for oneself, or for the father or master
+in whose power one is, under the will of another person: and this latter
+kind of testamentary capacity is quite independent of the capacity to
+make a will oneself. Accordingly, even lunatics, deaf persons, afterborn
+children, infants, children in power, and other persons' slaves are said
+to have testamentary capacity; for though they cannot make a valid will,
+they can acquire for themselves or for another under a will made by
+someone else.
+
+5 External heirs have the privilege of deliberating whether they will
+accept or disclaim an inheritance. But if a person who is entitled
+to disclaim interferes with the inheritance, or if one who has the
+privilege of deliberation accepts it, he no longer has the power of
+relinquishing it, unless he is a minor under the age of twentyfive
+years, for minors obtain relief from the praetor when they incautiously
+accept a disadvantageous inheritance, as well as when they take any
+other injudicious step.
+
+6 It is, however, to be observed that the Emperor Hadrian once relieved
+even a person who had attained his majority, when, after his accepting
+the inheritance, a great debt, unknown at the time of acceptance, had
+come to light. This was but the bestowal of an especial favour on
+a single individual; the Emperor Gordian subsequently extended the
+privilege, but only to soldiers, to whom it was granted as a class. We,
+however, in our benevolence have placed this benefit within the reach of
+all our subjects, and drafted a constitution as just as it is splendid,
+under which, if heirs will but observe its terms, they can accept an
+inheritance without being liable to creditors and legatees beyond the
+value of the property. Thus so far as their liability is concerned there
+is no need for them to deliberate on acceptance, unless they fail to
+observe the procedure of our constitution, and prefer deliberation, by
+which they will remain liable to all the risks of acceptance under the
+older law.
+
+7 An external heir, whether his right accrue to him under a will or
+under the civil law of intestate succession, can take the inheritance
+either by acting as heir, or by the mere intention to accept. By acting
+as heir is mean, for instance, using things belonging to the inheritance
+as one's own, or selling them, or cultivating or giving leases of the
+deceased's estates, provided only one expresses in any way whatsoever,
+by deed or word, one's intention to accept the inheritance, so long as
+one knows that the person with whose property one is thus dealing has
+died testate or intestate, and that one is that person's heir. To act as
+heir, in fact, is to act as owner, and the ancients often used the term
+'heir' as equivalent to the term 'owner.' And just as the mere intention
+to accept makes an external heir heir, so too the mere determination not
+to accept bars him from the inheritance. Nothing prevents a person who
+is born deaf or dumb, or who becomes so after birth, from acting as heir
+and thus acquiring the inheritance, provided only he knows what he is
+doing.
+
+
+
+
+TITLE XX. OF LEGACIES
+
+Let us now examine legacies:--a kind of title which seems foreign to
+the matter at hand, for we are expounding titles whereby aggregates of
+rights are acquired; but as we have treated in full of wills and heirs
+appointed by will, it was natural in close connexion therewith to
+consider this mode of acquisition.
+
+1 Now a legacy is a kind of gift left by a person deceased;
+
+2 and formerly they were of four kinds, namely, legacy by vindication,
+by condemnation, by permission, and by preception, to each of which a
+definite form of words was appropriated by which it was known, and which
+served to distinguish it from legacies of the other kinds. Solemn
+forms of words of this sort, however, have been altogether abolished by
+imperial constitutions; and we, desiring to give greater effect to the
+wishes of deceased persons, and to interpret their expressions with
+reference rather to those wishes than to their strict literal meaning,
+have issued a constitution, composed after great reflection, enacting
+that in future there shall be but one kind of legacy, and that, whatever
+be the terms in which the bequest is couched, the legatee may sue for
+it no less by real or hypothecary than by personal action. How carefully
+and wisely this constitution is worded may be ascertained by a perusal
+of its contents.
+
+3 We have determined, however, to go even beyond this enactment; for,
+observing that the ancients subjected legacies to strict rules, while
+the rules which they applied to fiduciary bequests, as springing more
+directly from the deceased person's wishes, were more liberal, we have
+deemed it necessary to assimilate the former completely to the latter,
+so that any future features in which legacies are inferior to fiduciary
+bequests may be supplied to them from the latter, and the latter
+themselves may in future possess any superiority which has hitherto
+been enjoyed by legacies only. In order, however, to avoid perplexing
+students in their first essays in the law by discussing these two forms
+of bequests together, we have thought it worth while to treat them
+separately, dealing first with legacies, and then with fiduciary
+bequests, so that the reader, having first learnt their respective
+natures in a separate treatment, may, when his legal education is more
+advanced, be able easily to comprehend their treatment in combination.
+
+4 A legacy may be given not only of things belonging to the testator
+or heir, but also of things belonging to a third person, the heir being
+bound by the will to buy and deliver them to the legatee, or to give him
+their value if the owner is unwilling to sell them. If the thing given
+be one of those of which private ownership is impossible, such, for
+instance, as the Campus Martius, a basilica, a church, or a thing
+devoted to public use, not even its value can be claimed, for the legacy
+is void. In saying that a thing belonging to a third person may be given
+as a legacy we must be understood to mean that this may be done if the
+deceased knew that it belonged to a third person, and not if he was
+ignorant of this: for perhaps he would never have given the legacy if
+he had known that the thing belonged neither to him nor to the heir, and
+there is a rescript of the Emperor Pius to this effect. It is also the
+better opinion that the plaintiff, that is the legatee, must prove that
+the deceased knew he was giving as a legacy a thing which was not his
+own, rather than that the heir must prove the contradictory: for the
+general rule of law is that the burden of proof lies on the plaintiff.
+
+5 If the thing which a testator bequests is in pledge to a creditor,
+the heir is obliged to redeem it, subject to the same distinction as has
+been drawn with reference to a legacy of a thing not belonging to
+the testator; that is to say, the heir is bound to redeem only if the
+deceased knew the thing to be in pledge: and the Emperors Severus and
+Antoninus have decided this by rescript. If, however, the deceased
+expresses his intention that the legatee should redeem the thing
+himself, the heir is under no obligation to do it for him.
+
+6 If a legacy is given of a thing belonging to another person, and the
+legatee becomes its owner during the testator's lifetime by purchase,
+he can obtain its value from the heir by action on the will: but if he
+gives no consideration for it, that is to say, gets it by way of gift or
+by some similar title, he cannot sue; for it is settled law that where
+a man has already got a thing, giving no consideration in return, he
+cannot get its value by a second title of the same kind. Accordingly, if
+a man is entitled to claim a thing under each of two distinct wills, it
+is material whether he gets the thing, or merely its value, under the
+earlier one: for if he gets the thing itself, he cannot sue under
+the second will, because he already has the thing without giving any
+consideration, whereas he has a good right of action if he has merely
+got its value.
+
+7 A thing which does not yet exist, but will exist, may be validly
+bequeathed:--for instance, the produce of such and such land, or the
+child of such and such female slave.
+
+8 If the same thing is given as a legacy to two persons, whether jointly
+or severally, and both claim it, each is entitled to only a half; if one
+of them does not claim it, because either he does not care for it, or
+has died in the testator's lifetime, or for some other reason, the whole
+goes to his colegatee. A joint legacy is given in such words as the
+following: 'I give and bequeath my slave Stichus to Titius and Seius': a
+several legacy thus, 'I give and bequeath my slave Stichus to Titius: I
+give and bequeath Stichus to Seius': and even if the testator says 'the
+same slave Stichus' the legacy is still a several one.
+
+9 If land be bequeathed which belongs to some one other than the
+testator, and the intended legatee, after purchasing the bare ownership
+therein, obtains the usufruct without consideration, and then sues under
+the will, Julian says that this action for the land is well grounded,
+because in a real action for land a usufruct is regarded merely as a
+servitude; but it is part of the duty of the judge to deduct the value
+of the usufruct from the sum which he directs to be paid as the value of
+the land.
+
+10 A legacy by which something already belonging to the legatee is given
+him is void, for what is his own already cannot become more his own
+than it is: and even though he alienates it before the testator's death,
+neither it nor its value can be claimed.
+
+11 If a testator bequeaths something belonging to him, but which he
+thought belonged to another person, the legacy is good, for its validity
+depends not on what he thought, but on the real facts of the case: and
+it is clearly good if he thought it already belonged to the legatee,
+because his expressed wish can thus be carried out.
+
+12 If, after making his will, a testator alienates property which he has
+therein given away as a legacy, Celsus is of opinion that the legatee
+may still claim it unless the testator's intention was thereby to
+revoke the bequest, and there is a rescript of the Emperors Severus
+and Antoninus to this effect, as well as another which decides that
+if, after making his will, a testator pledges land which he had therein
+given as a legacy, the part which has not been alienated can in any case
+be claimed, and the alienated part as well if the alienator's intention
+was not to revoke the legacy.
+
+13 If a man bequeaths to his debtor a discharge from his debt, the
+legacy is good, and the testator's heir cannot sue either the debtor
+himself, or his heir, or any one who occupies the position of heir to
+him, and the debtor can even compel the testator's heir to formally
+release him. Moreover, a testator can also forbid his heir to claim
+payment of a debt before a certain time has elapsed.
+
+14 Contrariwise, if a debtor leaves his creditor a legacy of what he
+owes him, the legacy is void, if it includes no more than the debt,
+for the creditor is thus in no way benefited; but if the debtor
+unconditionally bequeaths a sum of money which the creditor cannot claim
+until a definite date has arrived or a condition has been satisfied, the
+legacy is good, because it confers on the creditor a right to earlier
+payment. And, even if the day arrives, or the condition is satisfied,
+during the testator's lifetime, Papinian decides, and rightly, that
+the legacy is nevertheless a good one, because it was good when first
+written; for the opinion that a legacy becomes void, because something
+happens to deprive it of all material effect, is now rejected.
+
+15 If a man leaves his wife a legacy of her dowry, the gift is good,
+because the legacy is worth more than a mere right of action for the
+dowry. If, however, he has never received the dowry which he bequeaths,
+the Emperors Severus and Antoninus have decided by rescript that the
+legacy is void, provided the general term 'dowry' is used, but good,
+if in giving it to the wife a definite sum or thing is specified, or
+described generally by reference to the dowry deed.
+
+16 If a thing bequeathed perishes through no act of the heir, the loss
+falls on the legatee: thus if a slave belonging to another person, who
+is given in this way, is manumitted through no act of the heir, the
+latter is not bound. If, however, the slave belongs to the heir, who
+manumits him, Julian says that he is bound, and it is immaterial whether
+he knew or not that the slave had been bequeathed away from him.
+
+17 If a testator gives a legacy of female slaves along with their
+offspring, the legatee can claim the latter even if the mothers are
+dead, and so again if a legacy is given of ordinary slaves along with
+their vicarii or subordinates, the latter can be claimed even if
+the former are dead. But if the legacy be of a slave along with his
+peculium, and the slave is dead, or has been manumitted or alienated,
+the legacy of the peculium is extinguished; and similarly, if the legacy
+be of land with everything upon it, or with all its instruments of
+tillage, by the alienation of the land the legacy of the instruments of
+tillage is extinguished.
+
+18 If a flock be given as a legacy, which is subsequently reduced to a
+single sheep, this single survivor can be claimed; and Julian says that
+in a legacy of a flock are comprised sheep which are added to it after
+the making of the will, a flock being but one aggregate composed of
+distinct members, just as a house is but one aggregate composed of
+distinct stones built together. So if the legacy consists of a house,
+we hold that pillars or marbles added to it after the making of the will
+pass under the bequest.
+
+20 If a slave's peculium be given as a legacy, the legatee undoubtedly
+profits by what is added to it, and is a loser by what is taken from
+it, during the testator's lifetime. Whatever the slave acquires in
+the interval between the testator's death and the acceptance of the
+inheritance belongs, according to Julian, to the legatee, if that
+legatee be the slave himself who is manumitted by the will, because a
+legacy of this kind vests from the acceptance of the inheritance: but
+if the legatee be a stranger, he is not entitled to such acquisitions,
+unless they are made by means of the peculium itself. A slave manumitted
+by a will is not entitled to his peculium unless it is expressly
+bequeathed to him, though, if the master manumits him in his lifetime,
+it is enough if it be not expressly taken from him, and to this effect
+the Emperors Severus and Antoninus have decided by rescript: as also,
+that a legacy of his peculium to a slave does not carry with it the
+right to sue for money which he has expended on his master's account,
+and that a legacy of a peculium may be inferred from directions in a
+will that a slave is to be free so soon as he has made a statement of
+his accounts and made up any balance, which may be against him, from his
+peculium.
+
+21 Incorporeal as well as corporeal things can be bequeathed: thus a man
+can leave a legacy even of a debt which is owed to him, and the heir can
+be compelled to transfer to the legatee his rights of action, unless the
+testator has exacted payment in his lifetime, in which case the legacy
+is extinguished. Again, such a legacy as the following is good: 'be my
+heir bound to repair so and so's house, or to pay so and so's debts.'
+
+22 If a legacy be a general one, as of a slave or some other thing not
+specifically determined, the legatee is entitled to choose what slave,
+or what thing, he will have, unless the testator has expressed a
+contrary intention.
+
+23 A legacy of selection, that is, when a testator directs the legatee
+to select one from among his slaves, or any other class of things, was
+held to be given subject to an implied condition that the legatee should
+make the choice in person; so that if he died before doing so the legacy
+did not pass to his heir. By our constitution, however, we have made an
+improvement in this matter, and allowed the legatee's heir to exercise
+the right of selection, although the legatee has not done so personally
+in his lifetime; which enactment, through our careful attention to
+the subject, contains the further provision, that if there are either
+several colegatees to whom a right of selection has been bequeathed,
+and who cannot agree in their choice, or several coheirs of a single
+legatee, who differ through some wishing to choose this thing and others
+that, the question shall be decided by fortune--the legacy not being
+extinguished, which many of the jurists in an ungenerous spirit wished
+to make the rule--; that is to say, that lots shall be drawn, and he on
+whom the lot falls shall have a priority of choice over the rest.
+
+24 Three persons only can be legatees who have testamentary capacity,
+that is, who are legally capable of taking under a will.
+
+25 Formerly it was not allowed to leave either legacies or fiduciary
+bequests to uncertain persons, and even soldiers, as the Emperor Hadrian
+decided by rescript, were unable to benefit uncertain persons in this
+way. An uncertain person was held to be one of whom the testator had
+no certain conception, as the legatee in the following form: 'Whoever
+bestows his daughter in marriage on my son, do thou, my heir, give him
+such or such land.' So too a legacy left to the first consuls designate
+after the writing of the will was held to be given to an uncertain
+person, and many others that might be instanced: and so it was held that
+freedom could not be bequeathed to an uncertain person, because it was
+settled that slaves ought to be enfranchised by name, and an uncertain
+person could not be appointed guardian. But a legacy given with a
+certain demonstration, that is, to an uncertain member of a certain
+class, was valid, for instance, the following: 'Whoever of all my
+kindred now alive shall first marry my daughter, do thou, my heir,
+give him such and such thing.' It was, however, provided by imperial
+constitutions that legacies or fiduciary bequests left to uncertain
+persons and paid by mistake could not be recovered back.
+
+26 An afterborn stranger again could not take a legacy; an afterborn
+stranger being one who on his birth will not be a family heir to the
+testator; thus a grandson by an emancipated son was held to be an
+afterborn stranger to his grandfather.
+
+27 These parts of the law, however, have not been left without due
+alteration, a constitution having been inserted in our Code by which
+we have in these respects amended the rules relating to legacies and
+fiduciary bequests no less than to inheritances, as will be made clear
+by a perusal of the enactment, which, however, still maintains the old
+rule that an uncertain person cannot be appointed guardian: for when a
+testator is appointing a guardian for his issue, he ought to be quite
+clear as to the person and character of the party he selects.
+
+28 An afterborn stranger could and still can be instituted heir, unless
+conceived of a woman who cannot by law be a man's wife.
+
+29 If a testator makes a mistake in any of the names of the legatee, the
+legacy is nevertheless valid provided there is no doubt as to the person
+he intended, and the same rule is very properly observed as to heirs as
+well as legatees; for names are used only to distinguish persons, and
+if the person can be ascertained in other ways a mistake in the name is
+immaterial.
+
+30 Closely akin to this rule is another, namely, that an erroneous
+description of the thing bequeathed does not invalidate the bequest;
+for instance, if a testator says, 'I give and bequeath Stichus my born
+slave,' the legacy is good, if it quite clear who is meant by Stichus,
+even though it turn out that he was not born the testator's slave, but
+was purchased by him. Similarly, if he describe Stichus as 'the slave
+I bought from Seius,' whereas in fact he bought him from some one else,
+the legacy is good, if it is clear what slave he intended to give.
+
+31 Still less is a legacy invalidated from a wrong motive being assigned
+by the testator for giving it: if, for instance, he says, 'I give and
+bequeath Stichus to Titius, because he looked after my affairs while I
+was away,' or 'because I was acquitted on a capital charge through his
+undertaking my defence,' the legacy is still good, although in point of
+fact Titius never did look after the testator's affairs, or never did,
+through his advocacy, procure his acquittal. But the law is different
+if the testator expresses his motive in the guise of a condition, as: 'I
+give and bequeath such and such land to Titius, if he has looked after
+my affairs.' 32 It is questioned whether a legacy to a slave of the
+heir is valid. It is clear that such a legacy is void if given
+unconditionally, even though the slave ceases to belong to the heir
+during the testator's lifetime: for a legacy which would be void if
+the testator died immediately after making his will ought not to become
+valid by the simple fact of the testator's living longer. Such a legacy,
+however, is good if given subject to a condition, the question then
+being, whether at the vesting of the legacy the slave has ceased to
+belong to the heir.
+
+33 On the other hand, there is no doubt that even an absolute legacy
+to the master of a slave who is instituted heir is good: for, even
+supposing that the testator dies immediately after making the will, the
+right to the legacy does not necessarily belong to the person who is
+heir; for the inheritance and the legacy are separable, and a different
+person from the legatee may become heir through the slave; as happens
+if, before the slave accepts the inheritance at his master's bidding,
+he is conveyed to another person, or is manumitted and thus becomes heir
+himself; in both of which cases the legacy is valid. But if he remains
+in the same condition, and accepts at his master's bidding, the legacy
+is extinguished.
+
+34 A legacy given before an heir was appointed was formerly void,
+because a will derives its operation from the appointment of an heir,
+and accordingly such appointment is deemed the beginning and foundation
+of the whole testament, and for the same reason a slave could not be
+enfranchised before an heir was appointed. Yet even the old lawyers
+themselves disapproved of sacrificing the real intentions of the
+testator by too strictly following the order of the writing: and we
+accordingly have deemed these rules unreasonable, and amended them by
+our constitution, which permits a legacy, and much more freedom, which
+is always more favoured, to be given before the appointment of an heir,
+or in the middle of the appointments, if there are several.
+
+35 Again, a legacy to take effect after the death of the heir or
+legatee, as in the form: 'After my heir's death I give and bequeath,'
+was formerly void, as also was one to take effect on the day preceding
+the death of the heir or legatee. This too, however, we have corrected,
+by making such legacies as valid as they would be were they fiduciary
+bequests, lest in this point the latter should be found to have some
+superiority over the former.
+
+36 Formerly too the gift, revocation, and transference of legacies by
+way of penalty was void. A penal legacy is one given in order to coerce
+the heir into doing or not doing something; for instance, the following:
+'If my heir gives his daughter in marriage to Titius,' or, conversely,
+'if he does not give her in marriage to Titius, let him pay ten aurei
+to Seius'; or again, 'if my heir parts with my slave Stichus,' or,
+conversely, 'if he does not part with him, let him pay ten aurei to
+Titius.' And so strictly was this rule observed, that it is declared
+in a large number of imperial constitutions that even the Emperor will
+accept no legacy by which a penalty is imposed on some other person: and
+such legacies were void even when given by a soldier's will, in which
+as a rule so much trouble was taken to carry out exactly the testator's
+wishes. Moreover, Sabinus was of opinion that a penal appointment of a
+coheir was void, as exemplified in the following: 'Be Titius my heir: if
+Titius gives his daughter in marriage to Seius, be Seius my heir also';
+the ground of the invalidity being that it made no difference in what
+way Titius was constrained, whether by a legacy being left away from
+him, or by some one being appointed coheir. Of these refinements,
+however, we disapproved, and have consequently enacted generally
+that bequests, even though given, revoked, or transferred in order to
+penalize the heir, shall be treated exactly like other legacies, except
+where the event on which the penal legacy is contingent is either
+impossible, illegal, or immoral: for such testamentary dispositions as
+these the opinion of my times will not permit.
+
+
+
+
+TITLE XXI. OF THE ADEMPTION AND TRANSFERENCE OF LEGACIES
+
+Legacies may be revoked either in a later clause of the will or by
+codicils, and the revocation may be made either in words contrary
+to those of the gift, as the gift thus 'I give and bequeath,' the
+revocation thus 'I do not give and bequeath,' or in words not contrary,
+that is to say, in any words whatsoever.
+
+1 A legacy may also be transferred from one person to another, as thus:
+'I give and bequeath to Seius the slave Stichus whom I. bequeathed to
+Titius,' and this may be done either by a later clause of the will or by
+codicils; the result being that the legacy is taken away from Titius and
+simultaneously given to Seius.
+
+
+
+
+TITLE XXII. OF THE LEX FALCIDIA
+
+We have finally to consider the lex Falcidia, the most recent enactment
+limiting the amount which can be given in legacies. The statute of the
+Twelve Tables had conferred complete liberty of bequest on testators, by
+which they were enabled to give away their whole patrimony in legacies,
+that statute having enacted: 'let a man's testamentary disposition of
+his property be regarded as valid.' This complete liberty of bequest,
+however, it was thought proper to limit in the interest of testators
+themselves, for intestacy was becoming common through the refusal of
+instituted heirs to accept inheritances from which they received
+little or no advantage at all. The lex Furia and the lex Voconia
+were enactments designed to remedy the evil, but as both were found
+inadequate to the purpose, the lex Falcidia was finally passed,
+providing that no testator should be allowed to dispose of more than
+three-quarters of his property in legacies, or in other words, that
+whether there was a single heir instituted, or two or more, he or they
+should always be entitled to at least a quarter of the inheritance.
+
+1 If two heirs, say Titius and Seius, are instituted, and Titius's share
+of the inheritance is either wholly exhausted in legacies specifically
+charged thereon, or burdened beyond the limit fixed by the statute,
+while no legacies at all are charged on Seius, or at any rate legacies
+which exhaust it only to the extent of one half or less, the question
+arose whether, as Seius has at least a quarter of the whole inheritance,
+Titius was or was not entitled to retain anything out of the legacies
+which had been charged upon him: and it was settled that he could keep
+an entire fourth of his share of the inheritance; for the calculation
+of the lex Falcidia is to be applied separately to the share of each of
+several heirs in the inheritance.
+
+2 The amount of the property upon which the calculation is brought to
+bear is its amount at the moment of the testator's decease. Thus, to
+illustrate by an example, a testator who is worth a hundred aurei at his
+decease gives the whole hundred away in legacies: here, if before the
+heir accepts, the inheritance is so much augmented through slaves who
+belong to it, or by births of children from such of them as are females,
+or by the young of cattle that, even after paying away a hundred aurei
+in legacies, the heir will still have a clear fourth of the inheritance,
+the legatee's position is in no way improved, but a quarter of the
+sum given in legacies may still be deducted for himself by the heir.
+Conversely, if only seventyfive aurei are given in legacies, and before
+acceptance the inheritance is so much diminished in value, say by
+fire, shipwreck, or death of slaves, that no more or even less than
+seventyfive aurei are left, the legatees can claim payment of their
+legacies in full. In this latter case, however, the heir is not
+prejudiced, for he is quite free to refused the inheritance:
+consequently, the legatees must come to terms with him, and content
+themselves with a portion of their legacies, lest they lose all through
+no one's taking under the will.
+
+3 When the calculation of the lex Falcidia is made, the testator's debts
+and funeral expenses are first deducted, and the value of slaves whom he
+has manumitted in the will or directed to be manumitted is not reckoned
+as part of the inheritance; the residue is then divided so as to leave
+the heirs a clear fourth, the other three quarters being distributed
+among the legatees in proportion to the amount of the legacies given
+them respectively in the will. Thus, if we suppose four hundred aurei
+to have been given in legacies, and the value of the inheritance, out
+of which they are to be paid, to be exactly that sum, each legatee must
+have his legacy abated by onefourth; if three hundred and fifty have
+been given in legacies, each legacy will be diminished by one-eighth; if
+five hundred, first a fifth, then a fourth, must be deducted: for
+when the amount given in legacies actually exceeds the sum of the
+inheritance, there must be struck off first the excess, and then the
+share which the heir is entitled to retain.
+
+
+
+
+TITLE XXIII. OF TRUST INHERITANCES
+
+We now proceed to fiduciary bequests or trusts; and let us begin with
+trust inheritances.
+
+1 Legacies or inheritances given by trust had originally no binding
+legal force, because no one could be compelled against his will to do
+what he was merely asked to do. As there were certain classes of persons
+to whom testators were unable to leave inheritances or legacies, when
+they wished to effect these objects they used to trust to the good faith
+of some one who had this kind of testamentary capacity, and whom
+they asked to give the inheritance, or the legacy, to the intended
+beneficiary; hence the name 'trusts,' because they were not enforced
+by legal obligation, but only by the transferor's sense of honesty.
+Subsequently the Emperor Augustus, either out of regard for various
+favourites of his own, or because the request was said to have been made
+in the name of the Emperor's safety, or moved thereto by individual
+and glaring cases of perfidy, commanded the consuls in certain cases to
+enforce the duty by their authority. And this being deemed equitable,
+and being approved by the people, there was gradually developed a new
+and permanent jurisdiction, and trusts became so popular that soon a
+special praetor was appointed to hear suits relating to them, who was
+called the trust praetor.
+
+2 The first requisite is an heir directly instituted, in trust to
+transfer the inheritance to another, for the will is void without an
+instituted heir in the first instance. Accordingly, when a testator has
+written: 'Lucius Titius, be thou my heir,' he may add: 'I request you,
+Lucius Titius, as soon as you can accept my inheritance, to convey and
+transfer it to Gaius Seius'; or he can request him to transfer a part.
+So a trust may be either absolute or conditional, and to be performed
+either immediately or on a specified future day.
+
+3 After the transfer of the inheritance the transferor continues heir,
+the transferee being sometimes regarded as quasi-heir, sometimes as
+quasi-legatee.
+
+4 But during the reign of Nero, in the consulate of Trebellius Maximus
+and Annaeus Seneca, a senatusconsult was passed providing that, when
+an inheritance is transferred in pursuance of a trust, all the actions
+which the civil law allows to be brought by or against the heir shall be
+maintainable by and against the transferee: and after this enactment the
+praetor used to give indirect or fictitious actions to and against the
+transferee as quasiheir.
+
+5 However, as the instituted heirs, when (as so often was the case)
+they were requested to transfer the whole or nearly the whole of an
+inheritance, declined to accept for what was no benefit, or at most a
+very slight benefit, to themselves, and this caused a failure of the
+trusts, afterwards, in the time of the Emperor Vespasian, and during the
+consulate of Pegasus and Pusio, the senate decreed that an heir who
+was requested to transfer the inheritance should have the same right
+to retain a fourth thereof as the lex Falcidia gives to an heir charged
+with the payment of legacies, and gave a similar right of retaining the
+fourth of any specific thing left in trust. After the passing of this
+senatusconsult the heir, wherever it came into operation, was sole
+administrator, and the transferee of the residue was in the position of
+a partiary legatee, that is, of a legatee of a certain specified portion
+of the estate under the kind of bequest called participation, so that
+the stipulations which had been usual between an heir and a partiary
+legatee were now entered into by the heir and transferee, in order to
+secure a rateable division of the gains and losses arising out of the
+inheritance.
+
+6 Accordingly, after this, if no more than threefourths of the
+inheritance was in trust to be transferred, then the SC. Trebellianum
+governed the transfer, and both were liable to be sued for the debts
+of the inheritance in rateable portions, the heir by civil law,
+the transferee, as quasiheir, by that enactment. But if more than
+threefourths, or even the whole was left in trust to be transferred, the
+SC. Pegasianum came into operation, and when once the heir had accepted,
+of course voluntarily, he was the sole administrator whether he retained
+onefourth or declined to retain it: but if he did, he entered into
+stipulations with the transferee similar to those usual between the heir
+and a partiary legatee, while if he did not, but transferred the whole
+inheritance, he covenanted with him as quasi-purchaser. If an instituted
+heir refuse to accept an inheritance from a suspicion that the
+liabilities exceed the assets, it is provided by the SC. Pegasianum
+that, on the petition of the person to whom he is requested to transfer,
+he shall be ordered by the praetor to accept and transfer it, whereupon
+the transferee shall be as capable of suing and being sued as the
+transferee under the SC. Trebellianum. In this case no stipulations are
+necessary, because by a concurrent operation of the two senatusconsults
+both the transferor is protected, and all actions relating to the
+inheritance pass to and against the transferee.
+
+7 As, however, the covenants which had become necessary through the SC.
+Pegasianum were disliked even by the older lawyers, and are in certain
+cases considered injurious by the eminent jurist Papinian, and it being
+our desire that our statute book should be clear and simple rather than
+complicated, we have, after placing these two senatusconsults side by
+side and examining their points of resemblance and difference, resolved
+to repeal the SC. Pegasianum, as the later enactment, and to give
+exclusive authority to the SC. Trebellianum, under which in future
+all trust inheritances are to be transferred, whether the testator has
+freely given his heir a fourth of the property, or more or less, or even
+nothing at all: provided always, that when the heir has either nothing
+or less than a fourth, it shall be lawful for him, under our authority
+expressed in this statute, to retain a fourth, or to recover it by
+action if he has already paid it over, the heir and the transferee being
+capable both of suing and being sued in proportion to their shares in
+the inheritance, after the analogy of the SC. Trebellianum; and provided
+also, that if the heir voluntarily transfers the whole inheritance, the
+transferee shall be able to sue and be sued on all actions relating to
+the inheritance whatsoever. Moreover, we have transferred to the SC.
+Trebellianum the leading provision of the SC. Pegasianum, whereby it was
+enacted that when an instituted heir refused to accept an inheritance
+offered to him, he could be compelled to accept and transfer the whole
+inheritance if the intended transferee so desired, and that all actions
+should pass to and against the latter: so that it is under the SC.
+Trebellianum alone that the heir, if unwilling to accept, is now obliged
+to do so, if the intended transferee desire the inheritance, though to
+him personally no loss or profit can accrue under the transaction.
+
+8 It makes no difference whether it is a sole or part heir who is under
+a trust to another, or whether what he is requested to transfer is the
+whole or only a part of that to which he is heir; for we direct that the
+same rules shall be applied in the case of a part being transferred as
+we have said are observed in the transference of a whole inheritance.
+
+9 If the request addressed to the heir is to transfer the inheritance
+after deducting or reserving some specific thing which is equal in value
+to a fourth part thereof, such as land or anything else, the conveyance
+will be made under the SC. Trebellianum, exactly as if he had been
+asked after retaining a fourth part of the inheritance to transfer the
+residue. There is, however, some difference between the two cases; for
+in the first, where the inheritance is transferred after deducting or
+reserving some specific thing, the senatusconsult has the effect of
+making the transferee the only person who can sue or be sued in respect
+of the inheritance, and the part retained by the heir is free from all
+encumbrances, exactly as if he had received it under a legacy; whereas
+in the second, where the heir, after retaining a fourth part of the
+inheritance, transfers the rest as requested, the actions are divided,
+the transferee being able to sue and be sued in respect of threefourths
+of the inheritance, and the heir in respect of the rest. Moreover, if
+the heir is requested to transfer the inheritance after deducting or
+reserving only a single specific thing, which, however, in value is
+equivalent to the greater part of the inheritance, the transferee is
+still the only person who can sue and be sued, so that he ought well
+to weigh whether it is worth his while to take it: and the case is
+precisely the same, whether what the heir is directed to deduct or
+reserve before transferring is two or more specific things, or a
+definite sum which in fact is equivalent to a fourth or even the greater
+part of the inheritance. What we have said of a sole heir is equally
+true of one who is instituted only to a part.
+
+10 Moreover, a man about to die intestate can charge the person to whom
+he knows his property will go by either the civil or praetorian law to
+transfer to some one else either his whole inheritance, or a part of it,
+or some specific thing, such as land, a slave, or money: but legacies
+have no validity unless given by will.
+
+11 The transferee may himself be charged by the deceased with a trust
+to transfer to some other person either the whole or a part of what he
+receives, or even something different.
+
+12 As has been already observed, trusts in their origin depended solely
+on the good faith of the heir, from which early history they derived
+both their name and their character: and it was for that reason that the
+Emperor Augustus made them legally binding obligations. And we, in
+our desire to surpass that prince, have recently made a constitution,
+suggested by a matter brought before us by the eminent Tribonian,
+quaestor of our sacred palace, by which it is enacted, that if a
+testator charges his heir with a trust to transfer the whole inheritance
+or some specific thing, and the trust cannot be proved by writing or
+by the evidence of five witnesses--five being, as is known, the number
+required by law for the proof of oral trusts--through there having been
+fewer witnesses than five, or even none at all, and if the heir, whether
+it be his own son or some one else whom the testator has chosen to
+trust, and by whom he desired the transfer to be made, perfidiously
+refuses to execute the trust, and in fact denies that he was ever
+charged with it, the alleged beneficiary, having previously sworn to his
+own good faith, may put the heir upon his oath: whereupon the heir may
+be compelled to swear that no trust was ever charged upon him, or, in
+default, to transfer the inheritance or the specific thing, as the case
+may be, in order that the last wishes of the testator, the fulfilment
+of which he has left to the honour of his heir, may not be defeated. We
+have also prescribed the same procedure where the person charged with a
+trust is a legatee or already himself a transferee under a prior trust.
+Finally, if the person charged admits the trust, but tries to shelter
+himself behind legal technicalities, he may most certainly be compelled
+to perform his obligation.
+
+
+
+
+TITLE XXIV. OF TRUST BEQUESTS OF SINGLE THINGS
+
+Single things can be left in trust as well as inheritances; land, for
+instance, slaves, clothing, gold, silver, and coined money; and the
+trust may be imposed either on an heir or on a legatee, although a
+legatee cannot be charged with a legacy.
+
+1 Not only the testator's property, but that of an heir, or legatee, or
+person already benefited by a trust, or any one else may be given by
+a trust. Thus a legatee, or a person in whose favour the testator has
+already created a trust, may be asked to transfer either a thing left
+to him, or any other thing belonging to himself or a stranger, provided
+always that he is not charged with a trust to transfer more than he
+takes by the will, for in respect of such excess the trust would be
+void. When a person is charged by a trust to transfer a thing belonging
+to some one else, he must either purchase and deliver it, or pay its
+value.
+
+2 Liberty can be left to a slave by a trust charging an heir, legatee,
+or other person already benefited by a trust of the testator's, with
+his manumission, and it makes no difference whether the slave is the
+property of the testator, of the heir, of the legatee or of a stranger:
+for a stranger's slave must be purchased and manumitted; and on his
+master's refusal to sell (which refusal is allowable only if the master
+has taken nothing under the will) the trust to enfranchise the slave is
+not extinguished, as though its execution had become impossible, but its
+execution is merely postponed; because it may become possible to free
+him at some future time, whenever an opportunity of purchasing him
+presents itself. A trust of manumission makes the slave the freedman,
+not of the testator, though he may have been his owner, but of the
+manumitter, whereas a direct bequest of liberty makes a slave the
+freedman of the testator, whence too he is called 'orcinus.' But a
+direct bequest of liberty can be made only to a slave who belongs to the
+testator both at the time of making his will and at that of his decease;
+and by a direct bequest of liberty is to be understood the case where
+the testator desires him to become free in virtue, as it were, of his
+own testament alone, and so does not ask some one else to manumit him.
+
+3 The words most commonly used to create a trust are I beg, I. request,
+I wish, I commission, I trust to your good faith; and they are just as
+binding when used separately as when united.
+
+
+
+
+TITLE XXV. OF CODICILS
+
+It is certain that codicils were not in use before the time of Augustus,
+for Lucius Lentulus, who was also the originator of trusts, was the
+first to introduce them, in the following manner. Being on the point of
+death in Africa, he executed codicils, confirmed by his will, by which
+he begged Augustus to do something for him as a trust; and on the
+Emperor's fulfilling his wishes, other persons followed the precedent
+and discharged trusts created in this manner, and the daughter of
+Lentulus paid legacies which could not have been legally claimed from
+her. It is said that Augustus called a council of certain jurists, among
+them Trebatius, who at that time enjoyed the highest reputation, and
+asked them whether the new usage could be sanctioned, or did not rather
+run counter to the received principles of law, and that Trebatius
+recommended their admission, remarking 'how convenient and even
+necessary the practice was to citizens,' owing to the length of the
+journeys which were taken in those early days, and upon which a man
+might often be able to make codicils when he could not make a will.
+And subsequently, after codicils had been made by Labeo, nobody doubted
+their complete validity.
+
+1 Not only can codicils be made after a will, but a man dying intestate
+can create trusts by codicils, though Papinian says that codicils
+executed before a will are invalid unless confirmed by a later express
+declaration that they shall be binding. But a rescript of the Emperors
+Severus and Antoninus decides that the performance of a trust imposed
+by codicils written before a will may in any case be demanded, if it
+appears that the testator had not abandoned the intention expressed in
+them.
+
+2 An inheritance can neither be given nor taken away by codicils, nor,
+accordingly, can a child be disinherited in this way: for, if it were
+otherwise, the law of wills and of codicils would be confounded. By this
+it is meant that an inheritance cannot directly be given or taken away
+by codicils; for indirectly, by means of a trust, one can very well
+be given in this manner. Nor again can a condition be imposed on an
+instituted heir, or a direct substitution be effected, by codicils.
+
+3 A man can make any number of codicils, and no solemnities are required
+for their execution.
+
+
+
+
+BOOK III.
+
+
+
+
+TITLE I. OF THE DEVOLUTION OF INHERITANCES ON INTESTACY
+
+A man is said to die intestate who either has made no will at all, or
+has made one which is invalid, or if one which has been duly executed
+has been subsequently revoked, or rescinded, or finally, if no one
+accepts as heir under the testament.
+
+1 The inheritances of intestate persons go first, by the statute of the
+Twelve Tables, to family heirs;
+
+2 and family heirs, as we said above, are those who were in the power
+of the deceased at the time of his death, such as a son or daughter, a
+grandchild by a son, or a greatgrandchild by such grandchild if a male,
+and this whether the relationship be natural or adoptive. Among them
+must also be reckoned children who, though not born in lawful wedlock,
+have been inscribed members of the curia according to the tenor of the
+imperial constitutions relating to them, and thus acquire the rights of
+family heirs, or who come within the terms of our constitutions by which
+we have enacted that, if any one shall cohabit with a woman whom he
+might have lawfully married, but for whom he did not at first feel
+marital affection, and shall after begetting children by her begin to
+feel such affection and formally marry her, and then have by her sons or
+daughters, not only shall those be lawful children and in their father's
+power who were born after the settlement of the dowry, but also
+those born before, to whom in reality the later born ones owed their
+legitimacy; and we have provided that this rule shall hold even though
+no children are born after the execution of the dowry deed, or if,
+having been born, they are dead. It is to be observed, however, that a
+grandchild or greatgrandchild is not a family heir, unless the person in
+the preceding degree has ceased to be in the power of the parent, either
+through having died, or by some other means, such as emancipation; for
+if at the time of a man's decease a son is in his power, a grandson by
+that son cannot be a family heir, and the case is exactly the same with
+more remote descendants. Children too who are born after the ancestor's
+death, and who would have been in his power had they been born during
+his lifetime, are family heirs.
+
+3 Family heirs succeed even though ignorant of their title, and they
+can take upon an intestacy even though insane, because whenever the law
+vests property in a person, even when he is ignorant of his title, it
+equally vests it in him if insane. Thus, immediately on the parent's
+death, the ownership is as it were continued without any break, so that
+pupils who are family heirs do not require their guardian's sanction in
+order to succeed, for inheritances go to such heirs even though ignorant
+of their title; and similarly an insane family heir does not require his
+curator's consent in order to succeed, but takes by operation of law.
+
+4 Sometimes, however, a family heir succeeds in this way to his parent,
+even though not in the latter's power at the time of his decease, as
+where a person returns from captivity after his father's death, this
+being the effect of the law of postliminium.
+
+5 And sometimes conversely a man is not a family heir although in the
+power of the deceased at the time of his death, as where the latter
+after his death is adjudged to have been guilty of treason, and his
+memory is thereby branded with infamy: such a person is unable to have a
+family heir, for his property is confiscated to the treasury, though one
+who would otherwise have succeeded him may be said to have in law been a
+family heir, and ceased to be such.
+
+6 Where there is a son or daughter, and a grandchild by another son,
+these are called together to the inheritance, nor does the nearer in
+degree exclude the more remote, for it seems just that grandchildren
+should represent their father and take his place in the succession.
+Similarly a grandchild by a son, and a greatgrandchild by a grandson
+are called to the inheritance together. And as it was thought just that
+grandchildren and greatgrandchildren should represent their father, it
+seemed consistent that the inheritance should be divided by the number
+of stems, and not by the number of individuals, so that a son should
+take onehalf, and grandchildren by another son the other: or, if two
+sons left children, that a single grandchild, or two grandchildren by
+one son, should take onehalf, and three or four grandchildren by the
+other son the other.
+
+7 In ascertaining whether, in any particular case, so and so is a family
+heir, one ought to regard only that moment of time at which it first was
+certain that the deceased died intestate, including hereunder the
+case of no one's accepting under the will. For instance, if a son be
+disinherited and a stranger instituted heir, and the son die after the
+decease of his father, but before it is certain that the heir instituted
+in the will either will not or cannot take the inheritance, a grandson
+will take as family heir to his grandfather, because he is the only
+descendant in existence when first it is certain that the ancestor died
+intestate; and of this there can be no doubt.
+
+8 A grandson born after, though conceived before, his grandfather's
+death, whose father dies in the interval between the grandfather's
+decease and desertion of the latter's will through failure of the
+instituted heir to take, is family heir to his grandfather; though it is
+obvious that if (other circumstances remaining the same) he is conceived
+as well as born after the grandfather's decease, he is no family heir,
+because he was never connected with his grandfather by any tie of
+relationship; exactly as a person adopted by an emancipated son is
+not among the children of, and therefore cannot be family heir to, the
+latter's father. And such persons, not being children in relation to
+the inheritance, cannot apply either for possession of the goods of the
+deceased as next of kin. So much for family heirs.
+
+9 As to emancipated children, they have, by the civil law, no rights to
+succeed to an intestate; for having ceased to be in the power of their
+parent, they are not family heirs, nor are they called by any other
+title in the statute of the Twelve Tables. The praetor, however,
+following natural equity, gives them possession of the goods of the
+deceased merely as children, exactly as if they had been in his power
+at the time of his death, and this whether they stand alone or whether
+there are family heirs as well. Consequently, if a man die leaving two
+children, one emancipated, and the other in his power at the time of
+his decease, the latter is sole heir by the civil law, as being the
+only family heir; but through the former's being admitted to part of the
+inheritance by the indulgence of the praetor, the family heir becomes
+heir to part of the inheritance only.
+
+10 Emancipated children, however, who have given themselves in adoption
+are not thus admitted, under the title of children, to share the
+property of their natural father, if at the time of his decease they are
+in their adoptive family; though it is otherwise if they are emancipated
+during his lifetime by their adoptive father, for then they are admitted
+as if they had been emancipated by him and had never been in an adoptive
+family, while, conversely, as regards their adoptive father, they are
+henceforth regarded as strangers. If, however, they are emancipated
+by the adoptive after the death of the natural father, as regards the
+former they are strangers all the same, and yet do not acquire the rank
+of children as regards succession to the property of the latter; the
+reason of this rule being the injustice of putting it within the power
+of an adoptive father to determine to whom the property of the natural
+father shall belong, whether to his children or to his agnates.
+
+11 Adoptive are thus not so well off as natural children in respect of
+rights of succession: for by the indulgence of the praetor the latter
+retain their rank as children even after emancipation, although they
+lose it by the civil law; while the former, if emancipated, are not
+assisted even by the praetor. And there is nothing wrong in their
+being thus differently treated, because civil changes can affect rights
+annexed to a civil title, but not rights annexed to a natural title,
+and natural descendants, though on emancipation they cease to be family
+heirs, cannot cease to be children or grandchildren; whereas on
+the other hand adoptive children are regarded as strangers after
+emancipation, because they lose the title and name of son or daughter,
+which they have acquired by a civil change, namely adoption, by another
+civil change, namely emancipation.
+
+12 And the rule is the same in the possession of goods against the will
+which the praetor promises to children who are passed over in their
+parent's testament, that is to say, are neither instituted nor duly
+disinherited; for the praetor calls to this possession children who were
+in their parent's power at the time of his decease, or emancipated, but
+excludes those who at that time were in an adoptive family: still less
+does he here admit adoptive children emancipated by their adoptive
+father, for by emancipation they cease entirely to be children of his.
+
+13 We should observe, however, that though children who are in an
+adoptive family, or who are emancipated by their adoptive after the
+decease of their natural father, are not admitted on the death of the
+latter intestate by that part of the edict by which children are called
+to the possession of goods, they are called by another part, namely that
+which admits the cognates of the deceased, who, however, come in only
+if there are no family heirs, emancipated children, or agnates to take
+before them: for the praetor prefers children, whether family heirs
+or emancipated, to all other claimants, ranking in the second degree
+statutory successors, and in the third cognates, or next of kin.
+
+14 All these rules, however, which to our predecessors were sufficient,
+have received some emendation by the constitution which we have enacted
+relative to persons who have been given in adoption to others by
+their natural fathers; for we found cases in which sons by entering
+an adoptive family forfeited their right of succeeding their natural
+parents, and then, the tie of adoption being easily broken by
+emancipation, lost all title to succeed their adoptive parents as well.
+We have corrected this, in our usual manner, by a constitution which
+enacts that, when a natural father gives his son in adoption to another
+person, the son's rights shall remain the same in every particular as
+if he had continued in the power of his natural father, and the adoption
+had never taken place, except only that he shall be able to succeed his
+adoptive father should he die intestate. If, however, the latter makes
+a will, the son cannot obtain any part of the inheritance either by the
+civil or by the praetorian law, that is to say, either by impeaching the
+will as unduteous or by applying for possession against the will; for,
+being related by no tie of blood, the adoptive father is not bound
+either to institute him heir or to disinherit him, even though he has
+been adopted, in accordance with the SC. Afinianum, from among three
+brothers; for, even under these circumstances, he is not entitled to a
+fourth of what he might have taken on intestacy, nor has he any action
+for its recovery. We have, however, by our constitution excepted persons
+adopted by natural ascendants, for between them and their adopters there
+is the natural tie of blood as well as the civil tie of adoption, and
+therefore in this case we have preserved the older law, as also in that
+of an independent person giving himself in adrogation: all of which
+enactment can be gathered in its special details from the tenor of the
+aforesaid constitution.
+
+15 By the ancient law too, which favoured the descent through males,
+those grandchildren only were called as family heirs, and preferred to
+agnates, who were related to the grandfather in this way: grandchildren
+by daughters, and greatgrandchildren by granddaughters, whom it regarded
+only as cognates, being called after the agnates in succession to
+their maternal grandfather or greatgrandfather, or their grandmother or
+greatgrandmother, whether paternal or maternal. But the Emperors would
+not allow so unnatural a wrong to endure without sufficient correction,
+and accordingly, as people are, and are called, grandchildren and
+greatgrandchildren of a person whether they trace their descent through
+males or through females, they placed them altogether in the same rank
+and order of succession. In order, however, to bestow some privilege on
+those who had in their favour the provisions of the ancient law as
+well as natural right, they determined that grandchildren,
+greatgrandchildren, and others who traced their descent through a female
+should have their portion of the inheritance diminished by receiving
+less by onethird than their mother or grandmother would have taken,
+or than their father or grandfather, paternal or maternal, when the
+deceased, whose inheritance was in question, was a woman; and they
+excluded the agnates, if such descendants claimed the inheritance, even
+though they stood alone. Thus, exactly as the statute of the Twelve
+Tables calls the grandchildren and greatgrandchildren to represent their
+deceased father in the succession to their grandfather, so the imperial
+legislation substitutes them for their deceased mother or grandmother,
+subject to the aforesaid deduction of a third part of the share which
+she personally would have taken.
+
+16 As, however, there was still some question as to the relative rights
+of such grandchildren and of the agnates, who on the authority of a
+certain constitution claimed a fourth part of the deceased's estate, we
+have repealed the said enactment, and not permitted its insertion in
+our Code from that of Theodosius. By the constitution which we have
+published, and by which we have altogether deprived it of validity,
+we have provided that in case of the survival of grandchildren by
+a daughter, greatgrandchildren by a granddaughter, or more remote
+descendants related through a female, the agnates shall have no claim to
+any part of the estate of the deceased, that collaterals may no longer
+be preferred to lineal descendants; which constitution we hereby reenact
+with all its force from the date originally determined: provided always,
+as we direct, that the inheritance shall be divided between sons and
+grandchildren by a daughter, or between all the grandchildren, and other
+more remote descendants, according to stocks, and not by counting heads,
+on the principle observed by the ancient law in dividing an inheritance
+between sons and grandchildren by a son, the issue obtaining without
+any diminution the portion which would have belonged to their mother or
+father, grandmother or grandfather: so that if, for instance, there be
+one or two children by one stock, and three or four by another, the
+one or two, and the three or four, shall together take respectively one
+moiety of the inheritance.
+
+
+
+
+TITLE II. OF THE STATUTORY SUCCESSION OF AGNATES
+
+If there is no family heir, nor any of those persons called to the
+succession along with family heirs by the praetor or the imperial
+legislation, to take the inheritance in any way, it devolves, by the
+statute of the Twelve Tables, on the nearest agnate.
+
+1 Agnates, as we have observed in the first book, are those cognates
+who trace their relationship through males, or, in other words, who are
+cognate through their respective fathers. Thus, brothers by the same
+father are agnates, whether by the same mother or not, and are called
+'consanguinei'; an uncle is agnate to his brother's son, and vice
+versa; and the children of brothers by the same father, who are called
+'consobrini, are one another's agnates, so that it is easy to arrive at
+various degrees of agnation. Children who are born after their father's
+decease acquire the rights of kinship exactly as if they had been born
+before that event. But the law does not give the inheritance to all the
+agnates, but only to those who were nearest in degree at the moment when
+it was first certain that the deceased died intestate.
+
+2 The relation of agnation can also be established by adoption, for
+instance, between a man's own sons and those whom he has adopted, all
+of whom are properly called consanguinei in relation to one another.
+So, too, if your brother, or your paternal uncle, or even a more remote
+agnate, adopts any one, that person undoubtedly becomes one of your
+agnates.
+
+3 Male agnates have reciprocal rights of succession, however remote the
+degree of relationship: but the rule as regards females, on the other
+hand, was that they could not succeed as agnates to any one more
+remotely related to them than a brother, while they themselves could
+be succeeded by their male agnates, however distant the connexion: thus
+you, if a male, could take the inheritance of a daughter either of your
+brother or of your paternal uncle, or of your paternal aunt, but she
+could not take yours; the reason of this distinction being the seeming
+expediency of successions devolving as much as possible on males. But as
+it was most unjust that such females should be as completely excluded
+as if they were strangers, the praetor admits them to the possession of
+goods promised in that part of the edict in which mere natural kinship
+is recognised as a title to succession, under which they take provided
+there is no agnate, or other cognate of a nearer degree of relationship.
+Now these distinctions were in no way due to the statute of the Twelve
+Tables, which, with the simplicity proper to all legislation, conferred
+reciprocal rights of succession on all agnates alike, whether males
+or females, and excluded no degree by reason merely of its remoteness,
+after the analogy of family heirs; but it was introduced by the jurists
+who came between the Twelve Tables and the imperial legislation, and who
+with their legal subtleties and refinements excluded females other
+than sisters altogether from agnatic succession. And no other scheme of
+succession was in those times heard of, until the praetors, by gradually
+mitigating to the best of their ability the harshness of the civil law,
+or by filling up voids in the old system, provided through their edicts
+a new one. Mere cognation was thus in its various degrees recognised
+as a title to succession, and the praetors gave relief to such females
+through the possession of goods, which they promised to them in that
+part of the edict by which cognates are called to the succession. We,
+however, have followed the Twelve Tables in this department of law,
+and adhered to their principles: and, while we commend the praetors for
+their sense of equity, we cannot hold that their remedy was adequate;
+for when the degree of natural relationship was the same, and when the
+civil title of agnation was conferred by the older law on males and
+females alike, why should males be allowed to succeed all their agnates,
+and women (except sisters) be debarred from succeeding any? Accordingly,
+we have restored the old rules in their integrity, and made the law on
+this subject an exact copy of the Twelve Tables, by enacting, in our
+constitution, that all 'statutory' successors, that is, persons tracing
+their descent from the deceased through males, shall be called alike
+to the succession as agnates on an intestacy, whether they be males or
+females, according to their proximity of degree; and that no females
+shall be excluded on the pretence that none but sisters have the right
+of succeeding by the title of kinship.
+
+4 By an addition to the same enactment we have deemed it right to
+transfer one, though only one, degree of cognates into the ranks of
+those who succeed by a statutory title, in order that not only the
+children of a brother may be called, as we have just explained, to the
+succession of their paternal uncle, but that the children of a sister
+too, even though only of the half blood on either side (but not her more
+remote descendants), may share with the former the inheritance of their
+uncle; so that, on the decease of a man who is paternal uncle to his
+brother's children, and maternal uncle to those of his sister, the
+nephews and nieces on either side will now succeed him alike, provided,
+of course, that the brother and sister do not survive, exactly as if
+they all traced their relationship through males, and thus all had a
+statutory title. But if the deceased leaves brothers and sisters who
+accept the inheritance, the remoter degrees are altogether excluded,
+the division in this case being made individually, that is to say, by
+counting heads, not stocks.
+
+5 If there are several degrees of agnates, the statute of the Twelve
+Tables clearly calls only the nearest, so that if, for instance, the
+deceased leaves a brother, and a nephew by another brother deceased, or
+a paternal uncle, the brother is preferred. And although that statute,
+in speaking of the nearest agnate, uses the singular number, there is
+no doubt that if there are several of the same degree they are all
+admitted: for though properly one can speak of 'the nearest degree'
+only when there are several, yet it is certain that even though all the
+agnates are in the same degree the inheritance belongs to them.
+
+6 If a man dies without having made a will at all, the agnate who takes
+is the one who was nearest at the time of the death of the deceased. But
+when a man dies, having made a will, the agnate who takes (if one is
+to take at all) is the one who is nearest when first it becomes certain
+that no one will accept the inheritance under the testament; for until
+that moment the deceased cannot properly be said to have died intestate
+at all, and this period of uncertainty is sometimes a long one, so that
+it not unfrequently happens that through the death, during it, of a
+nearer agnate, another becomes nearest who was not so at the death of
+the testator.
+
+7 In agnatic succession the established rule was that the right of
+accepting the inheritance could not pass from a nearer to a more remote
+degree; in other words, that if the nearest agnate, who, as we have
+described, is called to the inheritance, either refuses it or dies
+before acceptance, the agnates of the next grade have no claim to
+admittance under the Twelve Tables. This hard rule again the praetors
+did not leave entirely without correction, though their remedy, which
+consisted in the admission of such persons, since they were excluded
+from the rights of agnation, in the rank of cognates, was inadequate.
+But we, in our desire to have the law as complete as possible, have
+enacted in the constitution which in our clemency we have issued
+respecting the rights of patrons, that in agnatic succession the
+transference of the rights to accept from a nearer to a remoter degree
+shall not be refused: for it was most absurd that agnates should
+be denied a privilege which the praetor had conferred on cognates,
+especially as the burden of guardianship fell on the second degree of
+agnates if there was a failure of the first, the principle which we have
+now sanctioned being admitted so far as it imposed burdens, but rejected
+so far as it conferred a boon.
+
+8 To statutory succession the ascendant too is none the less called who
+emancipates a child, grandchild, or remoter descendant under a
+fiduciary agreement, which by our constitution is now implied in every
+emancipation. Among the ancients the rule was different, for the parent
+acquired no rights of succession unless he had entered into a special
+agreement of trust to that effect prior to the emancipation.
+
+
+
+
+TITLE III. OF THE SENATUSCONSULTUM TERTULLIANUM
+
+So strict were the rules of the statute of the Twelve Tables in
+preferring the issue of males, and excluding those who traced their
+relationship through females, that they did not confer reciprocal rights
+of inheritance even on a mother and her children, though the praetors
+called them to succeed one another as next of kin by promising them the
+possession of goods in the class of cognates.
+
+1 But this narrowness of the law was afterwards amended, the Emperor
+Claudius being the first to confer on a mother, as a consolation for the
+loss of her children, a statutory right to their inheritance,
+
+2 and afterwards, very full provisions were made by the SC.
+Tertullianum, enacted in the time of the Emperor Hadrian, and relating
+to the melancholy succession of children by their mothers, though not
+by their grandmothers, whereby it was provided that a freeborn woman who
+had three or a freedwoman who had four children should be entitled to
+succeed to the goods of her children who died intestate, even though
+herself under paternal power; though, in this latter case, she cannot
+accept the inheritance except by the direction of the person in whose
+power she is.
+
+3 Children of the deceased who are or who rank as family heirs, whether
+in the first or any other degree, are preferred to the mother, and even
+where the deceased is a woman her children by imperial constitutions
+have a prior claim to the mother, that is, to their own grandmother.
+Again, the father of the deceased is preferred to the mother, but not
+so the paternal grandfather or greatgrandfather, at least when it is
+between them only that the question arises who is entitled. A brother by
+the same father excluded the mother from the succession to both sons
+and daughters, but a sister by the same father came in equally with the
+mother; and where there were both a brother and a sister by the same
+father, as well as a mother who was entitled by number of children,
+the brother excluded the mother, and divided the inheritance in equal
+moieties with the sister.
+
+4 By a constitution, however, which we have placed in the Code made
+illustrious by our name, we have deemed it right to afford relief to the
+mother, in consideration of natural justice, of the pains of childbirth,
+and of the danger and even death which mothers often incur in this
+manner; for which reason we have judged it a sin that they should be
+prejudiced by a circumstance which is entirely fortuitous. For if a
+freeborn woman had not borne three, or a freedwoman four children, she
+was undeservedly defrauded of the succession to her own offspring;
+and yet what fault had she committed in bearing few rather than many
+children? Accordingly, we have conferred on mothers a full statutory
+right of succession to their children, and even if they have had no
+other child than the one in question deceased.
+
+5 The earlier constitutions, in their review of statutory rights of
+succession, were in some points favourable, in others unfavourable,
+to mothers; thus in some cases they did not call them to the whole
+inheritance of their children, but deducted a third in favour of certain
+other persons with a statutory title, while in others they did exactly
+the opposite. We, however, have determined to follow a straightforward
+and simple path, and, preferring the mother to all other persons with a
+statutory title, to give her the entire succession of her sons, without
+deduction in favour of any other persons except a brother or sister,
+whether by the same father as the deceased, or possessing rights of
+cognation only; so that, as we have preferred the mother to all with
+a statutory title, so we call to the inheritance, along with her, all
+brothers and sisters of the deceased, whether statutorily entitled or
+not: provided that, if the only surviving relatives of the deceased
+are sisters, agnatic or cognatic, and a mother, the latter shall have
+onehalf, and all the sisters together the other half of the inheritance;
+if a mother and a brother or brothers, with or without sisters agnatic
+or cognatic, the inheritance shall be divided among mother, brothers,
+and sisters in equal portions.
+
+6 But, while we are legislating for mothers, we ought also to bestow
+some thought on their offspring; and accordingly mothers should
+observe that if they do not apply within a year for guardians for their
+children, either originally or in lieu of those who have been removed or
+excused, they will forfeit their title to succeed such children if they
+die under the age of puberty.
+
+7 A mother can succeed her child under the SC. Tertullianum even though
+the child be illegitimate.
+
+
+
+
+TITLE IV. OF THE SENATUSCONSULTUM ORFITIANUM
+
+Conversely, children were admitted to succeed their mother on her death
+intestate by the SC. Orfitianum, passed in the time of the Emperor
+Marcus, when Orfitus and Rufus were consuls: by which a statutory right
+of succession was conferred on both sons and daughters, even though in
+the power of another, in preference to their deceased mother's brothers
+and sisters and other agnates.
+
+1 As, however, grandsons were not called by this senatusconsult with a
+statutory title to the succession of their grandmothers,
+
+2 this was subsequently amended by imperial constitutions, providing
+that grandchildren should be called to inherit exactly like children. It
+is to be observed that rights of succession such as those conferred
+by the SC. Tertullianum and Orfitianum are not extinguished by loss of
+status, owing to the rule that rights of succession conferred by later
+statutes are not destroyed in this way, but only such as are conferred
+by the statute of the Twelve Tables;
+
+3 and finally that under the latter of these two enactments even
+illegitimate children are admitted to their mother's inheritance.
+
+4 If there are several heirs with a statutory title, some of whom do
+not accept, or are prevented from doing so by death or some other cause,
+their shares accrue in equal proportions to those who do accept the
+inheritance, or to their heirs, supposing they die before the failure of
+the others to take.
+
+
+
+
+TITLE V. OF THE SUCCESSION OF COGNATES
+
+After family heirs, and persons who by the praetor and the imperial
+legislation are ranked as such, and after persons statutorily entitled,
+among whom are the agnates and those whom the aforesaid senatusconsults
+and our constitution have raised to the rank of agnates, the praetor
+calls the nearest cognates.
+
+1 In this class or order natural or blood relationship alone is
+considered: for agnates who have undergone loss of status and their
+children, though not regarded as having a statutory title under the
+statute of the Twelve Tables, are called by the praetor in the
+third order of the succession. The sole exceptions to this rule are
+emancipated brothers and sisters, though not in equal shares with them,
+but with some deduction, the amount of which can easily be ascertained
+from the terms of the constitution itself. But to other agnates of
+remoter degrees, even though they have not undergone loss of status, and
+still more to cognates, they are preferred by the aforesaid statute.
+
+2 Again, collateral relations connected with the deceased only by the
+female line are called to the succession by the praetor in the third
+order as cognates;
+
+3 and children who are in an adoptive family are admitted in this order
+to the inheritance of their natural parent.
+
+4 It is clear that illegitimate children can have no agnates, for in
+law they have no father, and it is through the father that agnatic
+relationship is traced, while cognatic relationship is traced through
+the mother as well. On the same principle they cannot be held to be
+consanguinei of one another, for consanguinei are in a way agnatically
+related: consequently, they are connected with one another only as
+cognates, and in the same way too with the cognates of their mother.
+Accordingly, they can succeed to the possession of goods under that part
+of the Edict in which cognates are called by the title of mere kinship.
+
+5 In this place too we should observe that a person who claims as an
+agnate can be admitted to the inheritance, even though ten degrees
+removed from the deceased, both by the statute of the Twelve Tables, and
+by the Edict in which the praetor promises the possession of goods to
+heirs statutorily entitled: but on the ground of mere natural kinship
+the praetor promises possession of goods to those cognates only who are
+within the sixth degree; the only persons in the seventh degree whom
+he admits as cognates being the children of a second cousin of the
+deceased.
+
+
+
+
+TITLE VI. OF THE DEGREES OF COGNATION
+
+It is here necessary to explain the way in which the degrees of natural
+relationship are reckoned. In the first place it is to be observed that
+they can be counted either upwards, or downwards, or crosswise, that is
+to say, collaterally. Relations in the ascending line are parents, in
+the descending line, children, and similarly uncles and aunts paternal
+and maternal. In the ascending and descending lines a man's nearest
+cognate may be related to him in the first degree; in the collateral
+line he cannot be nearer to him than the second.
+
+1 Relations in the first degree, reckoning upwards, are the father and
+mother; reckoning downwards, the son and daughter.
+
+2 Those in the second degree, upwards, are grandfather and grandmother;
+downwards, grandson and granddaughter;
+
+3 and in the collateral line brother and sister. In the third degree,
+upwards, are the greatgrandfather and greatgrandmother; downwards, the
+greatgrandson and greatgranddaughter; in the collateral line, the sons
+and daughters of a brother or sister, and also uncles and aunts paternal
+and maternal. The father's brother is called 'patruus,' in Greek
+'patros', the mother's brother avunculus, in Greek specifically
+'matros,' though the term theios is used indifferently to indicate
+either. The father's sister is called 'amita,' the mother's 'matertera';
+both go in Greek by the name 'theia,' or, with some, 'tithis.'
+
+4 In the fourth degree, upwards, are the greatgreatgrandfather and
+the greatgreatgrandmother; downwards, the greatgreatgrandson and the
+great-great-granddaughter; in the collateral line, the paternal greatuncle
+and greataunt, that is to say, the grandfather's brother and sister: the
+same relations on the grandmother's side, that is to say, her brother
+and sister: and first cousins male and female, that is, children of
+brothers and sisters in relation to one another. The children of two
+sisters, in relation to one another, are properly called 'consobrini,'
+a corruption of 'consororini'; those of two brothers, in relation to one
+another, 'fratres patrueles,' if males, 'sorores patrueles,' if females;
+and those of a brother and a sister, in relation to one another,
+'amitini'; thus the sons of your father's sister call you 'consobrinus,'
+and you call them 'amitini.'
+
+5 In the fifth degree, upwards, are the grandfather's great-grandfather
+and great-grandmother, downwards, the great-grandchildren of one's own
+grandchildren, and in the collateral line the grandchildren of a brother
+or sister, a great-grandfather's or great-grandmother's brother or sister,
+the children of one's first cousins, that is, of a 'frater-' or 'soror
+patruelis,' of a 'consobrinus' or 'consobrina,' of an 'amitinus' or
+'amitina,' and first cousins once removed, that is to say, the children
+of a great-uncle or great-aunt paternal or maternal.
+
+6 In the sixth degree, upwards, are the great-grandfather's
+great-grandfather and great-grandmother; downwards, the great-grandchildren
+of a great-grandchild, and in the collateral line the great-grandchildren
+of a brother or sister, as also the brother and sister of a
+great-great-grandfather or great-great-grandmother, and second cousins,
+that is to say, the children of 'fratres-' or 'sorores patrueles,' of
+'consobrini,' or of 'amitini.'
+
+7 This will be enough to show how the degrees of relationship are
+reckoned; for from what has been said it is easy to understand how we
+ought to calculate the remoter degrees also, each generation always
+adding one degree: so that it is far easier to say in what degree any
+one is related to some one else than to indicate his relationship by the
+proper specific term.
+
+8 The degrees of agnation are also reckoned in the same manner;
+
+9 but as truth is fixed in the mind of man much better by the eye than
+by the ear, we have deemed it necessary, after giving an account of the
+degree of relationship, to have a table of them inserted in the present
+book, that so the youth may be able by both ears and eyes to gain a most
+perfect knowledge of them. [Note:--the pedagogical table is omitted in
+the present edition.]
+
+10 It is certain that the part of the Edict in which the possession
+of goods is promised to the next of kin has nothing to do with the
+relationships of slaves with one another, nor is there any old
+statute by which such relationships were recognised. However, in
+the constitution which we have issued with regard to the rights of
+patrons--a subject which up to our times had been most obscure, and
+full of difficulties and confusion--we have been prompted by humanity
+to grant that if a slave shall beget children by either a free woman
+or another slave, or conversely if a slave woman shall bear children of
+either sex by either a freeman or a slave, and both the parents and the
+children (if born of a slave woman) shall become free, or if the mother
+being free, the father be a slave, and subsequently acquire his freedom,
+the children shall in all these cases succeed their father and mother,
+and the patron's rights lie dormant. And such children we have called
+to the succession not only of their parents, but also of one another
+reciprocally, by this enactment, whether those born in slavery and
+subsequently manumitted are the only children, or whether there be
+others conceived after their parents had obtained their freedom, and
+whether they all have the same father and mother, or the same father and
+different mothers, or vice versa; the rules applying to children born in
+lawful wedlock being applied here also.
+
+11 To sum up all that we have said, it appears that persons related
+in the same degree of cognation to the deceased are not always called
+together, and that even a remoter is sometimes preferred to a nearer
+cognate. For as family heirs and those whom we have enumerated as
+equivalent to family heirs have a priority over all other claimants, it
+is clear that a great-grandson or great-great-grandson is preferred to a
+brother, or the father or mother of the deceased; and yet the father and
+mother, as we have remarked above, are in the first degree of
+cognation, and the brother is in the second, while the great-grandson and
+great-great-grandson are only in the third and fourth respectively. And it
+is immaterial whether the descendant who ranks among family heirs was in
+the power of the deceased at the time of his death, or out of it through
+having been emancipated or through being the child of an emancipated
+child or a child of the female sex.
+
+12 When there are no family heirs, and none of those persons who we have
+said rank as such, an agnate who has lost none of his agnatic rights,
+even though very many degrees removed from the deceased, is usually
+preferred to a nearer cognate; for instance, the grandson or
+great-grandson of a paternal uncle has a better title than a maternal
+uncle or aunt. Accordingly, in saying that the nearest cognate is
+preferred in the succession, or that, if there are several cognates in
+the nearest degree, they are called equally, we mean that this is the
+case if no one is entitled to priority, according to what we have said,
+as either being or ranking as a family heir, or as being an agnate; the
+only exceptions to this being emancipated brothers and sisters of the
+deceased who are called to succeed him, and who, in spite of their loss
+of status, are preferred to other agnates in a remoter degree than
+themselves.
+
+
+
+
+TITLE VII. OF THE SUCCESSION TO FREEDMEN
+
+Let us now turn to the property of freedmen. These were originally
+allowed to pass over their patrons in their wills with impunity: for by
+the statute of the Twelve Tables the inheritance of a freedman devolved
+on his patron only when he died intestate without leaving a family
+heir. If he died intestate, but left a family heir, the patron was not
+entitled to any portion of this property, and this, if the family
+heir was a natural child, seemed to be no grievance; but if he was an
+adoptive child, it was clearly unfair that the patron should be debarred
+from all right to the succession.
+
+1 Accordingly this injustice of the law was at a later period corrected
+by the praetor's Edict, by which, if a freedman made a will, he was
+commanded to leave his patron half his property; and, if he left him
+nothing at all, or less than a half, possession of such half was given
+to him against the testament. If, on the other hand, he died intestate,
+leaving as family heir an adoptive son, the patron could obtain even
+against the latter possession of the goods of the deceased to the extent
+of onehalf. But the freedman was enabled to exclude the patron if he
+left natural children, whether in his power at the time of his death, or
+emancipated or given in adoption, provided that he made a will in which
+he instituted them heirs to any part of the succession, or that, being
+passed over, they demanded possession against the will under the Edict:
+
+2 if disinherited, they did not avail to bar the patron. At a still
+later period the lex Papia Poppaea augmented the rights of patrons
+who had more wealthy freedmen. By this it was enacted that, whenever
+a freedman left property amounting in value to a hundred thousand
+sesterces and upwards, and not so many as three children, the patron,
+whether he died testate or intestate, should be entitled to a portion
+equal to that of a single child. Accordingly, if the freedman left
+a single son or daughter as heir, the patron could claim half the
+property, exactly as if he had died without leaving any children: if he
+left two children as heirs, the patron could claim a third: if he left
+three, the patron was excluded altogether.
+
+3 In our constitution, however, which we have drawn up in a convenient
+form and in the Greek language, so as to be known by all, we have
+established the following rules for application to such cases. If the
+freedman or freedwoman is less than a 'centenarius', that is, has
+a fortune of less than a hundred aurei (which we have reckoned as
+equivalent to the sum of a hundred thousand sesterces fixed by the lex
+Papia), the patron shall have no right to any share in the succession
+if they make a will; while, if they die intestate without leaving any
+children, we have retained unimpaired the rights conferred on the patron
+by the Twelve Tables. If they are possessed of more than a hundred
+aurei, and leave a descendant or descendants of either sex and any
+degree to take the inheritance civil or praetorian, we have given to
+such child or children the succession to their parents, to the exclusion
+of every patron and his issue. If, however, they leave no children, and
+die intestate, we have called the patron or patroness to their whole
+inheritance: while if they make a will, passing over their patron or
+patroness, and leaving no children, or having disinherited such as they
+have, or (supposing them to be mothers or maternal grandfathers) having
+passed them over without leaving them the right to impeach the testament
+as unduteous, then, under our constitution, the patron shall succeed,
+by possession against the will, not, as before, to onehalf of the
+freedman's estate, but to onethird, or, if the freedman or freedwoman
+has left him less than this third in his or her will, to so much as will
+make up the difference. But this third shall be free from all charges,
+even from legacies or trust bequests in favour of the children of
+the freedman or freedwoman, all of which are to fall on the patron's
+coheirs. In the same constitution we have gathered together the rules
+applying to many other cases, which we deemed necessary for the
+complete settlement of this branch of law: for instance, a title to the
+succession of freedmen is conferred not only on patrons and patronesses,
+but on their children and collateral relatives to the fifth degree: all
+of which may be ascertained by reference to the constitution itself. If,
+however, there are several descendants of a patron or patroness, or of
+two or several, the nearest in degree is to take the succession of the
+freedman or freedwoman, which is to be divided, not among the stocks,
+but by counting the heads of those nearest in degree. And the same
+rule is to be observed with collaterals: for we have made the law of
+succession to freedmen almost identical with that relating to freeborn
+persons.
+
+4 All that has been said relates nowadays to freedmen who are Roman
+citizens, for dediticii and Latini Iuniani having been together
+abolished there are now no others. As to a statutory right of succession
+to a Latin, there never was any such thing; for men of this class,
+though during life they lived as free, yet as they drew their last
+breath they lost their liberty along with their life, and under the lex
+Iunia their manumitters kept their property, like that of slaves, as a
+kind of peculium. It was subsequently provided by the SC. Largianum
+that the manumitter's children, unless expressly disinherited, should be
+preferred to his external heirs in succession to the goods of a Latin;
+and this was followed by the edict of the Emperor Trajan, providing that
+a Latin who contrived, without the knowledge or consent of his patron,
+to obtain by imperial favour a grant of citizenship should live
+a citizen, but die a Latin. Owing, however, to the difficulties
+accompanying these changes of condition, and others as well, we have
+determined by our constitution to repeal for ever the lex Iunia, the SC.
+Largianum, and the edict of Trajan, and to abolish them along with the
+Latins themselves, so as to enable all freedmen to enjoy the citizenship
+of Rome: and we have converted in a wonderful manner the modes in which
+persons became Latins, with some additions, into modes of attaining
+Roman citizenship.
+
+
+
+
+TITLE VIII. OF THE ASSIGNMENT OF FREEDMEN
+
+Before we leave the subject of succession to freedmen, we should observe
+a resolution of the Senate, to the effect that, though the property of
+freedmen belongs in equal portions to all the patron's children who
+are in the same degree, it shall yet be lawful for a parent to assign
+a freedman to one of his children, so that after his own death the
+assignee shall be considered his sole patron, and the other children
+who, had it not been for such assignment, would be admitted equally with
+him, shall have no claim to the succession whatever: though they recover
+their original rights if the assignee dies without issue.
+
+1 It is lawful to assign freedwomen as well as freedmen, and to
+daughters and granddaughters no less than to sons and grandsons;
+
+2 and the power of assignment is conferred on all who have two or
+more children in their power, and enables them to assign a freedman or
+freedwoman to such children while so subject to them. Accordingly the
+question arose, whether the assignment becomes void, if the parent
+subsequently emancipates the assignee? and the affirmative opinion,
+which was held by Julian and many others, has now become settled law.
+
+3 It is immaterial whether the assignment is made in a testament or
+not, and indeed patrons are enabled to exercise this power in any terms
+whatsoever, as is provided by the senatusconsult passed in the time of
+Claudius, when Suillus Rufus and Ostorius Scapula were consuls.
+
+
+
+
+TITLE IX. OF POSSESSION OF GOODS
+
+The law as to possession of goods was introduced by the praetor by way
+of amending the older system, and this not only in intestate succession,
+as has been described, but also in cases where deceased persons have
+made a will. For instance, although the posthumous child of a
+stranger, if instituted heir, could not by the civil law enter upon the
+inheritance, because his institution would be invalid, he could with
+the assistance of the praetor be made possessor of the goods by the
+praetorian law. Such a one can now, however, by our constitution be
+lawfully instituted, as being no longer unrecognised by the civil law.
+
+1 Sometimes, however, the praetor promises the possession of goods
+rather in confirmation of the old law than for the purpose of correcting
+or impugning it; as, for instance, when he gives possession in
+accordance with a duly executed will to those who have been instituted
+heirs therein. Again, he calls family heirs and agnates to the
+possession of goods on an intestacy; and yet, even putting aside the
+possession of goods, the inheritance belongs to them already by the
+civil law.
+
+2 Those whom the praetor calls to a succession do not become heirs in
+the eye of the law, for the praetor cannot make an heir, because persons
+become heirs by a statute only, or some similar ordinance such as a
+senatusconsult or an imperial constitution: but as the praetor gives
+them the possession of goods they become quasiheirs, and are called
+'possessors of goods.' And several additional grades of grantees of
+possession were recognised by the praetor in his anxiety that no
+one might die without a successor; the right of entering upon an
+inheritance, which had been confined by the statute of the Twelve Tables
+within very narrow limits, having been conferred more extensively by him
+in the spirit of justice and equity.
+
+3 The following are the kinds of testamentary possession of goods.
+First, the socalled 'contratabular' possession, given to children who
+are merely passed over in the will. Second, that which the praetor
+promises to all duly instituted heirs, and which is for that reason
+called secundum tabulas. Then, having spoken of wills, the praetor
+passes on to cases of intestacy, in which, firstly, he gives the
+possession of goods which is called unde liberi to family heirs and
+those who in his Edict are ranked as such. Failing these, he gives it,
+secondly, to successors having a statutory title: thirdly, to the ten
+persons whom he preferred to the manumitter of a free person, if a
+stranger in relation to the latter, namely the latter's father and
+mother, grandparents paternal and maternal, children, grandchildren by
+daughters as well as by sons, and brothers and sisters whether of the
+whole or of the half blood only. The fourth degree of possession is
+that given to the nearest cognates: the fifth is that called tum quam
+ex familia: the sixth, that given to the patron and patroness, their
+children and parents: the seventh, that given to the husband or wife of
+the deceased: the eighth, that given to cognates of the manumitter.
+
+4 Such was the system established by the praetorian jurisdiction. We,
+however, who have been careful to pass over nothing, but correct
+all defects by our constitutions, have retained, as necessary, the
+possession of goods called contra tabulas and secundum tabulas, and also
+the kinds of possession upon intestacy known as unde liberis and unde
+legitimi.
+
+5 The possession, however, which in the praetor's Edict occupied the
+fifth place, and was called unde decem personae, we have with benevolent
+intentions and with a short treatment shown to be superfluous. Its
+effect was to prefer to the extraneous manumitter the ten persons
+specified above; but our constitution, which we have made concerning the
+emancipation of children, has in all cases made the parent implicitly
+the manumitter, as previously under a fiduciary contract, and has
+attached this privilege to every such manumission, so as to render
+superfluous the aforesaid kind of possession of goods. We have therefore
+removed it, and put in its place the possession which the praetor
+promises to the nearest cognates, and which we have thus made the fifth
+kind instead of the sixth.
+
+6 The possession of goods which formerly stood seventh in the list,
+which was called tum quam ex familia, and that which stood eighth,
+namely, the possession entitled unde liberi patroni patronaeque et
+parentes eorum, we have altogether suppressed by our constitution
+respecting the rights of patrons. For, having assimilated the succession
+to freedmen to the succession to freeborn persons, with this sole
+exception--in order to preserve some difference between the two
+classes--that no one has any title to the former who is related more
+distantly than the fifth degree, we have left them sufficient remedies
+in the 'contratabular' possession, and in those called unde legitimi and
+unde cognati, wherewith to vindicate their rights, so that thus all the
+subtleties and inextricable confusion of these two kinds of possession
+of goods have been abolished.
+
+7 We have preserved in full force another possession of goods, which is
+called unde vir et uxor, and which occupied the ninth place in the old
+classification, and have given it a higher place, namely, the sixth.
+The tenth kind, which was called unde cognati manumissoris, we have
+very properly abolished for reasons which have been already stated:
+thus leaving in full operation only six ordinary kinds of possession of
+goods.
+
+8 The seventh, which follows them, was introduced with most excellent
+reason by the praetors, whose Edict finally promised the possession
+of goods to those persons expressly entitled to it by any statute,
+senatusconsult, or imperial constitution; but this was not permanently
+incorporated by the praetor with either the intestate or the
+testamentary kinds of possession, but was accorded by him, as
+circumstances demanded, as an extreme and extraordinary remedy to
+those persons who claim, either under a will or on an intestacy,
+under statutes, senatusconsults, or the more recent legislation of the
+emperors.
+
+9 The praetor, having thus introduced many kinds of successions, and
+arranged them in a system, fixed a definite time within which the
+possession of goods must be applied for, as there are often several
+persons entitled in the same kind of succession, though related in
+different degrees to the deceased, in order to save the creditors of
+the estate from delay in their suits, and to provide them with a proper
+defendant to sue; and with the object also of making it less easy
+for them to obtain possession of the property of the deceased, as in
+bankruptcy, wherein they consulted their own advantage only. He allowed
+to children and parents, adoptive no less than natural, an interval of
+a year, and to all other persons one hundred days, within which to make
+the application.
+
+10 If a person entitled does not apply for the possession of goods
+within the time specified, his portion goes by accrual to those in the
+same degree or class with himself: or, if there be none, the praetor
+promises by his successory edict the possession to those in the next
+degree, exactly as if the person in the preceding one were nonexistent.
+If any one refuses the possession of goods which he has the opportunity
+of accepting, it is not unusual to wait until the aforesaid interval,
+within which possession must be applied for, has elapsed, but the next
+degree is admitted immediately under the same edict.
+
+11 In reckoning the interval, only those days are considered upon which
+the persons entitled could have made application.
+
+12 Earlier emperors, however, have judiciously provided that no one
+need trouble himself expressly to apply for the possession of goods,
+but that, if he shall within the prescribed time in any manner have
+signified his intention to accept, he shall have the full benefit of
+such tacit acceptance.
+
+
+
+
+TITLE X. OF ACQUISITION BY ADROGATION
+
+There is another kind of universal succession which owes its
+introduction neither to the statute of the Twelve Tables nor to the
+praetor's Edict, but to the law which is based upon custom and consent.
+
+1 When an independent person gives himself in adrogation, all his
+property, corporeal and incorporeal, and all debts due to him formerly
+passed in full ownership to the adrogator, except such rights as are
+extinguished by loss of status, for instance, bounden services of
+freedmen and rights of agnation. Use and usufruct, though formerly
+enumerated among such rights, have now been saved by our constitution
+from extinction by the least loss of status.
+
+2 But we have now confined acquisition by adrogation within the same
+limits as acquisition through their children by natural parents; that is
+to say, adoptive as well as natural parents acquire no greater right
+in property which comes to children in their power from any extraneous
+source than a mere usufruct; the ownership is vested in the children
+themselves. But if a son who has been adrogated dies in his adoptive
+family, the whole of his property vests in the adrogator, failing those
+persons who, under our constitution, are preferred to the father in
+succession to property which is not acquired immediately from him.
+
+3 Conversely, the adrogator is not, by strict law, suable for the debts
+of his adoptive son, but an action may be brought against him as his
+representative; and if he declines to defend the latter, the creditors
+are allowed, by an order of the magistrates having jurisdiction in such
+cases, to take possession of the property of which the usufruct as well
+as the ownership would have belonged to the son, had he not subjected
+himself to the power of another, and to dispose of it in the mode
+prescribed by law.
+
+
+
+
+TITLE XI. OF THE ADJUDICATION OF A DECEASED PERSON'S ESTATE TO PRESERVE
+THE GIFTS OF LIBERTY
+
+A new form of succession was added by a constitution of the Emperor
+Marcus, which provided that if slaves, who have received a bequest of
+liberty from their master in a will under which no heir takes, wish
+to have his property adjudged to them, their application shall be
+entertained.
+
+1 Such is the substance of a rescript addressed by the Emperor Marcus to
+Popilius Rufus, which runs as follows: 'If there is no successor to
+take on the intestacy of Virginius Valens, who by his will has conferred
+freedom on certain of his slaves, and if, consequently, his property
+is in danger of being sold, the magistrate who has cognizance of such
+matters shall on application entertain your desire to have the property
+adjudged to you, in order to give effect to the bequests of liberty,
+direct and fiduciary, provided you give proper security to the creditors
+for payment of their claims in full. Slaves to whom liberty has been
+directly bequeathed shall become free exactly as if the inheritance had
+been actually accepted, and those whom the heir was requested to manumit
+shall obtain their liberty from you; provided that if you will have the
+property adjudged to you only upon the condition, that even the
+slaves who have received a direct bequest of liberty shall become your
+freedmen, and if they, whose status is now in question, agree to this,
+we are ready to authorize compliance with your wishes. And lest the
+benefit afforded by this our rescript be rendered ineffectual in another
+way, by the Treasury laying claim to the property, be it hereby known
+to those engaged in our service that the cause of liberty is to be
+preferred to pecuniary advantage, and that they must so effect such
+seizures as to preserve the freedom of those who could have obtained it
+had the inheritance been accepted under the will.'
+
+2 This rescript was a benefit not only to slaves thus liberated, but
+also to the deceased testators themselves, by saving their property from
+being seized and sold by their creditors; for it is certain that such
+seizure and sale cannot take place if the property has been adjudged on
+this account, because some one has come forward to defend the deceased,
+and a satisfactory defender too, who gives the creditors full security
+for payment.
+
+3 Primarily, the rescript is applicable only where freedom is conferred
+by a will. How then will the case stand, if a man who dies intestate
+makes gifts of freedom by codicils, and on the intestacy no one accepts
+the inheritance? We answer, that the boon conferred by the constitution
+ought not here to be refused. No one can doubt that liberty given, in
+codicils, by a man who dies having made a will, is effectual.
+
+4 The terms of the constitution show that it comes into application when
+there is no successor on an intestacy; accordingly, it is of no use so
+long as it is uncertain whether there will be one or not; but, when this
+has been determined in the negative, it at once becomes applicable.
+
+5 Again, it may be asked whether, if a person who abstains from
+accepting an inheritance can claim a judicial restoration of rights, the
+constitution can still be applied, and the goods adjudged under it? And
+what, if such person obtains a restoration after they have been actually
+adjudged in order to give effect to the bequest of freedom? We reply
+that gifts of liberty to which effect has once been given cannot
+possibly be recalled.
+
+6 The object with which this constitution was enacted was to give effect
+to bequests of liberty, and accordingly it is quite inapplicable where
+no such bequests are made. Supposing, however, that a man manumits
+certain slaves in his lifetime, or in contemplation of death, and
+in order to prevent any questions arising whether the creditors have
+thereby been defrauded, the slaves are desirous of having the property
+adjudged to them, should this be permitted? and we are inclined to say
+that it should, though the point is not covered by the terms of the
+constitution.
+
+7 Perceiving, however, that the enactment was wanting in many minute
+points of this kind, we have ourselves issued a very full constitution,
+in which have been collected many conceivable cases by which the law
+relating to this kind of succession has been completed, and with which
+any one can become acquainted by reading the constitution itself.
+
+
+
+
+TITLE XII. OF UNIVERSAL SUCCESSIONS, NOW OBSOLETE, IN SALE OF GOODS UPON
+BANKRUPTCY, AND UNDER THE SC. CLAUDIANUM
+
+There were other kinds of universal succession in existence prior to
+that last before mentioned; for instance, the 'purchase of goods' which
+was introduced with many prolixities of form for the sale of insolvent
+debtors' estates, and which remained in use under the socalled
+'ordinary' system of procedure. Later generations adopted the
+'extraordinary' procedure, and accordingly sales of goods became
+obsolete along with the ordinary procedure of which they were a part.
+Creditors are now allowed to take possession of their debtor's property
+only by the order of a judge, and to dispose of it as to them seems most
+advantageous; all of which will appear more perfectly from the larger
+books of the Digest.
+
+1 There was too a miserable form of universal acquisition under the SC.
+Claudianum, when a free woman, through indulgence of her passion for a
+slave, lost her freedom by the senatusconsult, and with her freedom her
+property. But this enactment we deemed unworthy of our times, and have
+ordered its abolition in our Empire, nor allowed it to be inserted in
+our Digest.
+
+
+
+
+TITLE XIII. OF OBLIGATIONS
+
+Let us now pass on to obligations. An obligation is a legal bond, with
+which we are bound by a necessity of performing some act according to
+the laws of our State.
+
+1 The leading division of obligations is into two kinds, civil and
+praetorian. Those obligations are civil which are established by
+statute, or at least are sanctioned by the civil law; those are
+praetorian which the praetor has established by his own jurisdiction,
+and which are also called honorary.
+
+2 By another division they are arranged in four classes, contractual,
+quasicontractual, delictal, and quasidelictal. And first, we must
+examine those which are contractual, and which again fall into four
+species, for contract is concluded either by delivery, by a form of
+words, by writing, or by consent: each of which we will treat in detail.
+
+
+
+
+TITLE XIV. OF REAL CONTRACTS, OR THE MODES IN WHICH OBLIGATIONS ARE
+CONTRACTED BY DELIVERY
+
+Real contracts, or contracts concluded by delivery, are exemplified
+by loan for consumption, that is to say, loan of such things as are
+estimated by weight, number, or measure, for instance, wine, oil, corn,
+coined money, copper, silver, or gold: things in which we transfer
+our property on condition that the receiver shall transfer to us, at a
+future time, not the same things, but other things of the same kind and
+quality: and this contract is called mutuum, because thereby meum or
+mine becomes tuum or thine. The action to which it gives rise is called
+a condiction.
+
+1 Again, a man is bound by a real obligation if he takes what is not
+owed him from another who pays him by mistake; and the latter can, as
+plaintiff, bring a condiction against him for its recovery, after the
+analogy of the action whose formula ran 'if it be proved that he ought
+to convey,' exactly as if the defendant had received a loan from him.
+Consequently a pupil who, by mistake, is paid something which is not
+really owed him without his guardian's authority, will no more be bound
+by a condiction for the recovery of money not owed than by one for money
+received as a loan: though this kind of liability does not seem to be
+founded on contract; for a payment made in order to discharge a debt is
+intended to extinguish, not to create, an obligation.
+
+2 So too a person to whom a thing is lent for use is laid under a
+real obligation, and is liable to the action on a loan for use. The
+difference between this case and a loan for consumption is considerable,
+for here the intention is not to make the object lent the property of
+the borrower, who accordingly is bound to restore the same identical
+thing. Again, if the receiver of a loan for consumption loses what he
+has received by some accident, such as fire, the fall of a building,
+shipwreck, or the attack of thieves or enemies, he still remains bound:
+but the borrower for use, though responsible for the greatest care in
+keeping what is lent him--and it is not enough that he has shown as much
+care as he usually bestows on his own affairs, if only some one else
+could have been more diligent in the charge of it--has not to answer for
+loss occasioned by fire or accident beyond his control, provided it
+did not occur through any fault of his own. Otherwise, of course, it is
+different: for instance, if you choose to take with you on a journey a
+thing which has been lent to you for use, and lose it by being attacked
+by enemies or thieves, or by a shipwreck, it is beyond question that you
+will be liable for its restoration. A thing is not properly said to
+be lent for use if any recompense is received or agreed upon for the
+service; for where this is the case, the use of the thing is held to be
+hired, and the contract is of a different kind, for a loan for use ought
+always to be gratuitous.
+
+3 Again, the obligation incurred by a person with whom a thing is
+deposited for custody is real, and he can be sued by the action of the
+deposit; he too being responsible for the restoration of the identical
+thing deposited, though only where it is lost through some positive
+act of commission on his part: for for carelessness, that is to say,
+inattention and negligence, he is not liable. Thus a person from whom
+a thing is stolen, in the charge of which he has been most careless,
+cannot be called to account, because, if a man entrusts property to the
+custody of a careless friend, he has no one to blame but himself for his
+want of caution.
+
+4 Finally, the creditor who takes a thing in pledge is under a real
+obligation, and is bound to restore the thing itself by the action of
+pledge. A pledge, however, is for the benefit of both parties; of
+the debtor, because it enables him to borrow more easily, and of
+the creditor, because he has the better security for repayment; and
+accordingly, it is a settled rule that the pledgee cannot be held
+responsible for more than the greatest care in the custody of the
+pledge; if he shows this, and still loses it by some accident, he
+himself is freed from all liability, without losing his right to sue for
+the debt.
+
+
+
+
+TITLE XV. OF VERBAL OBLIGATION
+
+An obligation is contracted by question and answer, that is to say, by a
+form of words, when we stipulate that property shall be conveyed to
+us, or some other act be performed in our favour. Such verbal contracts
+ground two different action, namely condiction, when the stipulation is
+certain, and the action on stipulation, when it is uncertain; and the
+name is derived from stipulum, a word in use among the ancients to mean
+'firm,' coming possibly from stipes, the trunk of a tree.
+
+1 In this contract the following forms of words were formerly sanctioned
+by usage: 'Do you engage yourself to do so and so?' 'I do engage
+myself.' 'Do you promise?' 'I do promise.' 'Do you pledge your credit?'
+'I pledge my credit.' 'Do you guarantee?' 'I guarantee.' 'Will you
+convey?' 'I will convey.' 'Will you do?' 'I will do.' Whether the
+stipulation is in Latin, or Greek, or any other language, is immaterial,
+provided the two parties understand one another, so that it is not
+necessary even that they should both speak in the same tongue, so long
+as the answer corresponds to the question, and thus two Greeks, for
+instance, may contract an obligation in Latin. But it was only in former
+times that the solemn forms referred to were in use: for subsequently,
+by the enactment of Leo's constitution, their employment was rendered
+unnecessary, and nothing was afterwards required except that the parties
+should understand each other, and agree to the same thing, the words in
+which such agreement was expressed being immaterial.
+
+2 The terms of a stipulation may be absolute, or performance may either
+be postponed to some future time, or be made subject to a condition.
+An absolute stipulation may be exemplified by the following: 'Do you
+promise to give five aurei?' and here (if the promise be made) that sum
+may be instantly sued for. As an instance of stipulation in diem, as
+it is called where a future day is fixed for payment, we may take the
+following: 'Do you promise to give ten aurei on the first of March?' In
+such a stipulation as this, an immediate debt is created, but it cannot
+be sued upon until the arrival of the day fixed for payment: and even on
+that very day an action cannot be brought, because the debtor ought to
+have the whole of it allowed to him for payment; for otherwise, unless
+the whole day on which payment was promised is past, it cannot be
+certain that default has been made.
+
+3 If the terms of your stipulation run 'Do you promise to pay me ten
+aurei a year so long as I live?' the obligation is deemed absolute, and
+the liability perpetual, for a debt cannot be owed till a certain
+time only; though if the promisee's heir sues for payment, he will be
+successfully met by the plea of contrary agreement.
+
+4 A stipulation is conditional, when performance is made to depend on
+some uncertain event in the future, so that it becomes actionable only
+on something being done or omitted: for instance, 'Do you promise to
+give five aurei if Titius is made consul?' If, however, a man stipulates
+in the form 'Do you promise to give so and so, if I do not go up to the
+Capitol?' the effect is the same as if he had stipulated for payment to
+himself at the time of his death. The immediate effect of a conditional
+stipulation is not a debt, but merely the expectation that at some time
+there will be a debt: and this expectation devolves on the stipulator's
+heir, supposing he dies himself before fulfilment of the condition.
+
+5 It is usual in stipulations to name a place for payment; for instance,
+'Do you promise to give at Carthage?' Such a stipulation as this, though
+in its terms absolute, implies a condition that enough time shall be
+allowed to the promisor to enable him to pay the money at Carthage.
+Accordingly, if a man at Rome stipulates thus, 'Do you promise to pay
+today at Carthage?' the stipulation is void, because the performance of
+the act to be promised is a physical impossibility.
+
+6 Conditions relating to past or present time either make the obligation
+void at once, or have no suspensive operation whatever. Thus, in the
+stipulation 'Do you promise to give so and so, if Titius has been
+consul, or if Maevius is alive?' the promise is void, if the condition
+is not satisfied; while if it is, it is binding at once: for events
+which in themselves are certain do not suspend the binding force of an
+obligation, however uncertain we ourselves may be about them.
+
+7 The performance or nonperformance of an act may be the object of a
+stipulation no less than the delivery of property, though where this is
+the case, it will be best to connect the nonperformance of the act to be
+performed, or the performance of the act to be omitted, with a pecuniary
+penalty to be paid in default, lest there be doubt as to the value of
+the act or omission, which will make it necessary for the plaintiff to
+prove to what damages he is entitled. Thus, if it be a performance
+which is stipulated for, some such penalty should be added as in the
+following: 'If so and so is not done, do you promise to pay ten aurei as
+a penalty?' And if the performance of some acts, and the nonperformance
+of others, are bargained for in the same stipulation, a clause of the
+following kind should be added, 'If any default is made, either as
+contrary to what is agreed upon, or by way of nonperformance, do you
+promise to pay a penalty of ten aurei?'
+
+
+
+
+TITLE XVI. OF STIPULATIONS IN WHICH THERE ARE TWO CREDITORS OR TWO
+DEBTORS
+
+There may be two or more parties on either side in a stipulation, that
+is to say, as promisors or promisees. Joint promises are so constituted
+by the promisor answering, 'I promise,' after they have all first
+asked the question; for instance, if after two promises have separately
+stipulated from him, he answers, 'I promise to give so and so to each of
+you.' But if he first promises to Titius, and then, on another's putting
+the question to him, promises to him too, there will be two distinct
+obligations, namely, one between him and each of the promisees, and they
+are not considered joint promisees at all. The usual form to constitute
+two or more joint promisors is as follows,--'Maevius, do you promise to
+give five aurei? Seius, do you promise to give the same five aurei?' and
+in answer they reply separately, 'I promise.'
+
+1 In obligations of this kind each joint promisee is owed the whole sum,
+and the whole sum can be claimed from each joint promisor; and yet
+in both cases but one payment is due, so that if one joint promisee
+receives the debt, or one joint promisor pays it, the obligation is
+thereby extinguished for all, and all are thereby released from it.
+
+2 Of two joint promisors one may be bound absolutely, while performance
+by the other is postponed to a future day, or made to depend on a
+condition; but such postponement or such condition in no way prevents
+the stipulator from at once suing the one who was bound absolutely.
+
+
+
+
+TITLE XVII. OF STIPULATIONS MADE BY SLAVES
+
+From his master's legal capacity a slave derives ability to be promisee
+in a stipulation. Thus, as an inheritance in most matters represents
+the legal 'person' of the deceased, whatever a slave belonging to it
+stipulates for, before the inheritance is accepted, he acquires for the
+inheritance, and so for the person who subsequently becomes heir.
+
+1 All that a slave acquires by a stipulation he acquires for his master
+only, whether it was to that master, or himself, or his fellow slave, or
+no one in particular that performance was to be made under the contract;
+and the same principle applies to children in power, so far as they now
+are instruments of acquisition for their father.
+
+2 When, however, what is stipulated for is permission to do some
+specific act, that permission cannot extend beyond the person of the
+promisee: for instance, if a slave stipulates for permission to cross
+the promisor's land, he cannot himself be denied passage, though his
+master can.
+
+3 A stipulation by a slave belonging to joint owners enures to the
+benefit of all of them in proportion to the shares in which they own
+him, unless he stipulated at the bidding, or expressly in favour, of one
+of them only, in which case that one alone is benefited. Where a jointly
+owned slave stipulates for the transfer of property which cannot be
+acquired for one of his two masters, the contract enures to the benefit
+of the other only: for instance, where the stipulation is for the
+transfer of a thing which already belongs to one of them.
+
+
+
+
+TITLE XVIII. OF THE DIFFERENT KINDS OF STIPULATIONS
+
+Stipulations are either judicial, praetorian, conventional, or common:
+by the latter being meant those which are both praetorian and judicial.
+
+1 Judicial stipulations are those which it is simply part of the judge's
+duty to require; for instance, security against fraud, or for the
+pursuit of a runaway slave, or (in default) for payment of his value.
+
+2 Those are praetorian, which the praetor is bound to exact simply in
+virtue of his magisterial functions; for instance, security against
+apprehended damage, or for payment of legacies by an heir. Under
+praetorian stipulations we must include also those directed by the
+aedile, for these too are based upon jurisdiction.
+
+3 Conventional stipulations are those which arise merely from the
+agreement of the parties, apart from any direction of a judge or of the
+praetor, and which one may almost say are of as many different kinds as
+there are conceivable objects to a contract.
+
+4 Common stipulations may be exemplified by that by which a guardian
+gives security that his ward's property will not be squandered or
+misappropriated, which he is sometimes required to enter into by the
+praetor, and sometimes also by a judge when the matter cannot be managed
+in any other way; or, again, we might take the stipulation by which an
+agent promises that his acts shall be ratified by his principal.
+
+
+
+
+TITLE XIX. OF INVALID STIPULATIONS
+
+Anything, whether movable or immovable, which admits of private
+ownership, may be made the object of a stipulation; 1 but if a man
+stipulates for the delivery of a thing which either does not or cannot
+exist, such as Stichus, who is dead but whom he though alive, or an
+impossible creature, like a hippocentaur, the contract will be void.
+
+2 Precisely the same principles applies where a man stipulates for the
+delivery of a thing which is sacred or religious, but which he thought
+was a subject of human ownership, or of a thing which is public, that is
+to say, devoted in perpetuity to the use and enjoyment of the people
+at large, like a forum or theatre, or of a free man whom he thought a
+slave, or of a thing which he is incapable of owning, or which is
+his own already. And the fact that a thing which is public may
+become private property, that a free man may become a slave, that the
+stipulator may become capable of owning such and such a thing, or that
+such and such a thing may cease to belong to him, will not avail to
+merely suspend the force of the stipulation in these cases, but it is
+void from the outset. Conversely, a stipulation which originally
+was perfectly good may be avoided by the thing, which is its object,
+acquiring any of the characters just specified through no fault of the
+promisor. And a stipulation, such as 'do you promise to convey Lucius
+Titius when he shall be a slave' and others like it, are also void from
+the beginning; for objects which by their very nature cannot be owned by
+man cannot either in any way be made the object of an obligation.
+
+3 If one man promises that another shall convey, or do so and so, as,
+for instance, that Titius shall give five aurei, he will not be bound,
+though he will if he promises to get Titius to give them.
+
+4 If a man stipulates for conveyance to, or performance in favour of,
+another person who is not his paterfamilias, the contract is void;
+though of course performance to a third person may be bargained for (as
+in the stipulation 'do you promise to give to me or to Seius?'); where,
+though the obligation is created in favour of the stipulator only,
+payment may still be lawfully made to Seius, even against the
+stipulator's will, the result of which, if it is done, being that the
+promisor is entirely released from his obligation, while the stipulator
+can sue Seius by the action of agency. If a man stipulates for payment
+of ten aurei to himself and another who is not his paterfamilias, the
+contract will be good, though there has been much doubt whether in such
+a case the stipulator can sue for the whole sum agreed upon, or only
+half; the law is now settled in favour of the smaller sum. If you
+stipulate for performance in favour of one in your power, all benefit
+under the contract is taken by yourself, for your words are as the words
+of your son, as his words are as yours, in all cases in which he is
+merely an instrument of acquisition for you.
+
+5 Another circumstance by which a stipulation may be avoided is want of
+correspondence between question and answer, as where a man stipulates
+from you for payment of ten aurei, and you promise five, or vice versa;
+or where his question is unconditional, your answer conditional, or vice
+versa, provided only that in this latter case the difference is express
+and clear; that is to say, if he stipulates for payment on fulfilment
+of a condition, or on some determinate future day, and you answer: 'I.
+promise to pay today,' the contract is void; but if you merely answer:
+'I promise,' you are held by this laconic reply to have undertaken
+payment on the day, or subject to the condition specified; for it is not
+essential that every word used by the stipulator should be repeated in
+the answer of the promise.
+
+6 Again, no valid stipulation can be made between two persons of whom
+one is in the power of the other. A slave indeed cannot be under an
+obligation to either his master or anybody else: but children in power
+can be bound in favour of any one except their own paterfamilias.
+
+7 The dumb, of course, cannot either stipulate or promise, nor can the
+deaf, for the promisee in stipulation must hear the answer, and the
+promisor must hear the question; and this makes it clear that we are
+speaking of persons only who are stone deaf, not of those who (as it is
+said) are hard of hearing.
+
+8 A lunatic cannot enter into any contract at all, because he does not
+understand what he is doing.
+
+9 On the other hand a pupil can enter into any contract, provided that
+he has his guardian's authority, when necessary, as it is for incurring
+an obligation, though not for imposing an obligation on another person.
+
+10 This concession of legal capacity of disposition is manifestly
+reasonable in respect of children who have acquired to some
+understanding, for children below the age of seven years, or who have
+just passed that age, resemble lunatics in want of intelligence. Those,
+however, who have just completed their seventh year are permitted, by
+a beneficent interpretation of the law, in order to promote their
+interests, to have the same capacity as those approaching the age of
+puberty; but a child below the latter age, who is in paternal power,
+cannot bind himself even with his father's sanction.
+
+11 An impossible condition is one which, according to the course of
+nature, cannot be fulfilled, as, for instance, if one says: 'Do
+you promise to give if I. touch the sky with my finger?' But if the
+stipulation runs: 'Do you promise to give if I do not touch the sky with
+my finger?' it is considered unconditional, and accordingly can be sued
+upon at once.
+
+12 Again, a verbal obligation made between persons who are not present
+with one another is void. This rule, however, afforded contentious
+persons opportunities of litigation, by alleging, after some interval,
+that they, or their adversaries, had not been present on the occasion in
+question; and we have therefore issued a constitution, addressed to the
+advocates of Caesarea, in order with the more dispatch to settle such
+disputes, whereby it is enacted that written documents in evidence of a
+contract which recite the presence of the parties shall be taken to
+be indisputable proof of the fact, unless the person, who resorts to
+allegations usually so disgraceful, proves by the clearest evidence,
+either documentary or borne by credible witnesses, that he or his
+adversary was elsewhere than alleged during the whole day on which the
+document is stated to have been executed.
+
+13 Formerly, a man could not stipulate that a thing should be conveyed
+to him after his own death, or after that of the promisor; nor could one
+person who was in another's power even stipulate for conveyance after
+that person's death, because he was deemed to speak with the voice of
+his parent or master; and stipulations for conveyance the day before the
+promisee's or promisor's decease were also void. Stipulation, however,
+as has already been remarked, derive their validity from the consent
+of the contracting parties, and we therefore introduced a necessary
+emendation in respect also of this rule of law, by providing that a
+stipulation shall be good which bargains for performance either after
+the death, or the day before the death, of either promisee or promisor.
+
+14 Again, a stipulation in the form: 'Do you promise to give today, if
+such or such a ship arrives from Asia tomorrow?' was formerly void, as
+being preposterous in its expression, because what should come last
+is put first. Leo, however, of famous memory held that a preposterous
+stipulation in the settlement of a dowry ought not to be rejected as
+void, and we have determined to allow it perfect validity in every case,
+and not merely in that in which it was formerly sanctioned.
+
+15 A stipulation, say by Titius, in the form: 'Do you promise to give
+when I shall die' or 'when you shall die'? is good now, as indeed it
+always was even under the older law.
+
+16 So too a stipulation for performance after the death of a third
+person is good.
+
+17 If a document in evidence of a contract states that so and so
+promised, the promise is deemed to have been given in answer to a
+preceding question.
+
+18 When several acts of conveyance or performance are comprised in
+a single stipulation, if the promisor simply answers: 'I promise to
+convey,' he becomes liable on each and all of them, but if he answers
+that he will convey only one or some of them, he incurs an obligation in
+respect of those only which are comprised in his answer, there being
+in reality several distinct stipulations of which only one or some
+are considered to have acquired binding force: for for each act of
+conveyance or performance there ought to be a separate question and a
+separate answer.
+
+19 As has been already observed, no one can validly stipulate for
+performance to a person other than himself, for the purpose of this
+kind of obligation is to enable persons to acquire for themselves that
+whereby they are profited, and a stipulator is not profited if the
+conveyance is made to a third person. Hence, if it be wished to make
+a stipulation in favour of any such third person, a penalty should be
+stipulated for, to be paid, in default of performance of that which is
+in reality the object of the contract, to the party who otherwise would
+have no interest in such performance; for when one stipulates for a
+penalty, it is not his interest in what is the real contract which
+is considered, but only the amount to be forfeited to him upon
+nonfulfilment of the condition. So that a stipulation for conveyance
+to Titius, but made by some one else, is void: but the addition of a
+penalty, in the form 'If you do not convey, do you promise to pay me so
+many aurei?' makes it good and actionable.
+
+20 But where the promisor stipulates in favour of a third person, having
+himself an interest in the performance of the promise, the stipulation
+is good. For instance, if a guardian, after beginning to exercise his
+tutorial functions, retires from their exercise in favour of his fellow
+guardian, taking from him by stipulation security for the due charge of
+the ward's property, he has a sufficient interest in the performance
+of this promise, because the ward could have sued him in case of
+maladministration, and therefore the obligation is binding. So too a
+stipulation will be good by which one bargains for delivery to one's
+agent, or for payment to one's creditor, for in the latter case one may
+be so far interested in the payment that, if it not be made, one will
+become liable to a penalty or to having a foreclosure of estates which
+one has mortgaged.
+
+21 Conversely, he who promises that another shall do so and so is not
+bound unless he promises a penalty in default;
+
+22 and, again, a man cannot validly stipulate that property which will
+hereafter be his shall be conveyed to him as soon as it becomes his own.
+
+23 If a stipulator and the promisor mean different things, there is no
+contractual obligation, but it is just as if no answer had been made to
+the question; for instance, if one stipulates from you for Stichus, and
+you think he means Pamphilus, whose name you believed to be Stichus.
+
+24 A promise made for an illegal or immoral purpose, as, for instance,
+to commit a sacrilege or homicide, is void.
+
+25 If a man stipulates for performance on the fulfilment of a condition,
+and dies before such fulfilment, his heir can sue on the contract when
+it occurs: and the heir of the promisor can be sued under the same
+circumstances.
+
+26 A stipulation for a conveyance this year, or this month, cannot be
+sued upon until the whole year, or the whole month, has elapsed:
+
+27 and similarly the promisee cannot sue immediately upon a stipulation
+for the conveyance of an estate or a slave, but only after allowing a
+sufficient interval for the conveyance to be made.
+
+
+
+
+TITLE XX. OF FIDEJUSSORS OR SURETIES
+
+Very often other persons, called fidejussors or sureties, are bound for
+the promisor, being taken by promises as additional security.
+
+1 Such sureties may accompany any obligation, whether real, verbal,
+literal or consensual: and it is immaterial even whether the principal
+obligation be civil or natural, so that a man may go surety for the
+obligation of a slave either to a stranger or to his master.
+
+2 A fidejussor is not only bound himself, but his obligation devolves
+also on his heir' 3 and the contract of suretyship may be entered into
+before no less than after the creation of the principal obligation.
+
+4 If there are several fidejussors to the same obligation, each of them,
+however many they are, is liable for the whole amount, and the creditor
+may sue whichever he chooses for the whole; but by the letter of Hadrian
+he may be compelled to sue for only an aliquot part, determined by the
+number of sureties who are solvent at the commencement of the action: so
+that if one of them is insolvent at that time the liability of the rest
+is proportionately increased. Thus, if one fidejussor pay the whole
+amount, he alone suffers by the insolvency of the principal debtor; but
+this is his own fault, as he might have availed himself of the letter of
+Hadrian, and required that the claim should be reduced to his rateable
+portion.
+
+5 Fidejussors cannot be bound for more than their principal, for their
+obligation is but accessory to the latter's, and the accessory cannot
+contain more than the principal; but they can be bound for less. Thus,
+if the principal debtor promised ten aurei, the fidejussor can well be
+bound for five, but not vice versa; and if the principal's promise
+is absolute, that of the fidejussor may be conditional, though a
+conditional promise cannot be absolutely guaranteed, for more and less
+is to be understood of time as well as of quantity, immediate payment
+being regarded as more, and future payment as less.
+
+6 For the recovery of anything paid by him for the principal the
+fidejussor can sue the latter by the action on agency.
+
+7 A fidejussor may be taken in Greek, by using the expressions 'tei
+emei pistei keleuo,' 'lego,' 'thelo,' or 'boulomai'; and 'phemi' will be
+taken as equivalent to 'lego.'
+
+8 It is to be observed that in the stipulations of fidejussors the
+general rule is that whatever is stated in writing to have been done is
+taken to have really been done; and, accordingly, it is settled law that
+if a man signs his name to a paper stating that he became a fidejussor,
+all formalities are presumed to have been duly observed.
+
+
+
+
+TITLE XXI. OF LITERAL OBLIGATION
+
+Formerly there was a kind of obligation made by writing, and said to
+be contracted by the entry of a debt in a ledger; but such entries have
+nowadays gone out of use. Of course, if a man states in writing that he
+owes money which has never been paid over to him, he cannot be allowed,
+after a considerable interval, to defend himself by the plea that
+the money was not, in fact, advanced; for this is a point which has
+frequently been settled by imperial constitutions. The consequence is,
+that even at the present day a person who is estopped from this plea is
+bound by his written signature, which (even of course where there is no
+stipulation) is ground for a condiction. The length of time after
+which this defence could not be pleaded was formerly fixed by
+imperial constitutions at five years; but it has been reduced by our
+constitution, in order to save creditors from a more extended risk of
+being defrauded of their money, so that now it cannot be advanced after
+the lapse of two years from the date of the alleged payment.
+
+
+
+
+TITLE XXII. OF OBLIGATION BY CONSENT
+
+Obligations contracted by mere consent are exemplified by sale, hire,
+partnership and agency, which are called consensual contracts because no
+writing, nor the presence of the parties, nor any delivery is required
+to make the obligation actionable, but the consent of the parties is
+sufficient. Parties who are not present together, therefore, can form
+these contracts by letter, for instance, or by messenger: and they are
+in their nature bilateral, that is, both parties incur a reciprocal
+obligation to perform whatever is just and fair, whereas verbal
+contracts are unilateral, one party being promisee, and the other alone
+promisor.
+
+
+
+
+TITLE XXIII. OF PURCHASE AND SALE
+
+The contract of purchase and sale is complete immediately the price
+is agreed upon, and even before the price or as much as any earnest is
+paid: for earnest is merely evidence of the completion of the contract.
+In respect of sales unattested by any written evidence this is a
+reasonable rule, and so far as they are concerned we have made no
+innovations. By one of our constitutions, however, we have enacted, that
+no sale effected by an agreement in writing shall be good or binding,
+unless that agreement is written by the contracting parties themselves,
+or, if written by some one else, is at least signed by them, or finally,
+if written by a notary, is duly drawn by him and executed by the
+parties. So long as any of these requirements is unsatisfied, there is
+room to retract, and either purchaser or vendor may withdraw from the
+agreement with impunity--provided, that is to say, that no earnest has
+been given. Where earnest has been given, and either party refuses to
+perform the contract, that party, whether the agreement be in writing or
+not, if purchaser forfeits what he has given, and if vendor is compelled
+to restore double of what he has received, even though there has been no
+express agreement in the matter of earnest.
+
+1 It is necessary that the price should be settled, for without a
+price there can be no purchase and sale, and it ought to be a fixed and
+certain price. For instance, where the parties agreed that the thing
+should be sold at a price to be subsequently fixed by Titius, the older
+jurists doubted much whether this was a valid contract of sale or not.
+The doubt has been settled in the following way by our decision; if the
+third person named actually fixes the price, it must certainly be paid,
+as settled by him, and the thing must be delivered, in order to give
+effect to the sale; the purchaser (if not fairly treated) suing by the
+action on purchase, and the vendor by the action on sale. But if the
+third person named will not or cannot fix the price, the sale will
+be void, because no price has been settled. This rule, which we have
+adopted with regard to sales, may reasonably be extended also to
+contracts of hire.
+
+2 The price, too, should be in money; for it used to be much disputed
+whether anything else, such as a slave, a piece of land, or a robe,
+could be treated as a price. Sabinus and Cassius held the affirmative,
+explaining thus the common theory that exchange is a species, and the
+oldest species, of purchase and sale; and in their support they quoted
+the lines of Homer, who says in a certain passage that the army of the
+Greeks procured themselves wine by giving other things in exchange,
+the actual words being as follow: 'then the longhaired Greeks bought
+themselves wine, some with bronze, some with shining iron, some
+with hides, some with live oxen, some with slaves.' The other school
+maintained the negative, and distinguished between exchange on the one
+hand, and purchase and sale on the other: for if an exchange were the
+same thing as a sale, it would be impossible to determine which is the
+thing sold, and which is the price, and both things cannot be regarded
+in each of these characters. The opinion, however, of Proculus, who
+affirmed that exchange was a species of contract apart by itself, and
+distinct from sale, has deservedly prevailed, as it is confirmed by
+other lines from Homer, and by still more cogent reasons, and this has
+been admitted by preceding Emperors, and is fully stated in our Digest.
+
+3 As soon as the contract of sale is concluded--that is, as we have
+said, as soon as the price is agreed upon, if the contract is not in
+writing--the thing sold is immediately at the risk of the purchaser,
+even though it has not yet been delivered to him. Accordingly, if a
+slave dies, or is injured in any part of his body, or if a house is
+either totally or partially burnt down, or if a piece of land is wholly
+or partially swept away by a river flood, or is reduced in acreage by
+an inundation, or made of less value by a storm blowing down some of
+its trees, the loss falls on the purchaser, who must pay the price even
+though he has not got what he purchased. The vendor is not responsible
+and does not suffer for anything not due to any design or fault of his
+own. If, however, after the purchase of a piece of land, it receives an
+increase by alluvion, it is the purchaser who profits thereby: for the
+profit ought to belong to him who also bears the risk. And if a slave
+who has been sold runs away, or is stolen, without any design or fault
+of the vendor, one should look to see whether the latter expressly
+undertook to keep him safely until delivery was made; for, if he did
+this, the loss falls upon him, though otherwise he incurs no liability:
+and this is a rule which applies to all animals and other objects
+whatsoever. The vendor, however, will be bound to transfer to the
+purchaser all his rights of action for the recovery of the object or
+damages, for, not having yet delivered it to the purchaser, he still
+remains its owner, and the same holds good of the penal actions on theft
+and on unlawful damage.
+
+4 A sale may be made conditionally as well as absolutely. The following
+is an example of a conditional sale: 'If Stichus meets with your
+approval within a certain time, he shall be purchased by you for so many
+aurei.'
+
+5 If a man buys a piece of land which is sacred, religious, or public,
+such as a forum or basilica, knowing it to be such, the purchase is
+void. But if the vendor has fraudulently induced him to believe that
+what he was buying was not sacred, or was private property, as he cannot
+legally have what he contracted for, he can bring the action on purchase
+to recover damages for what he has lost by the fraud; and the same rule
+applies to the purchase of a free man represented by the vendor to be a
+slave.
+
+
+
+
+TITLE XXIV. OF LETTING AND HIRING
+
+The contract of hire resembles very closely the contract of sale, and
+the same rules of law apply to both. Thus, as the contract of sale is
+concluded as soon as the price is agreed upon, so the contract of hire
+is held to be concluded as soon as the sum to be paid for the hiring is
+settled, and from that moment the letter has an action on the letting,
+and the hirer on the hiring.
+
+1 What we have said above as to a sale in which the price is left to be
+fixed by a third person must be understood to apply also to a contract
+of hire in which the amount to be paid for hire is left to be fixed in
+the same way. Consequently, if a man gives clothes to a fuller to clean
+or finish, or to a tailor to mend, and the amount of hire is not fixed
+at the time, but left to subsequent agreement between the parties, a
+contract of hire cannot properly be said to have been concluded, but
+an action is given on the circumstances, as amounting to an innominate
+contract.
+
+2 Again, a question often arose in connexion with the contract of hire
+similar to that which was so common, namely, whether an exchange was a
+sale. For instance, what is the nature of the transaction if a man gives
+you the use or enjoyment of a thing, and receives in return the use or
+enjoyment of another thing from you? It is now settled that this is not
+a contract of hire, but a kind of contract apart by itself. Thus, if
+a man had one ox, and his neighbour another, and they agreed that each
+should in turn lend the other his ox for ten days to make use of, and
+then one of the oxen died while working for the man to whom it did not
+belong, an action cannot be brought on hire, nor on a loan for use, for
+a loan for use ought to be gratuitous: but an action should be brought
+as on an innominate contract.
+
+3 So nearly akin, indeed, is purchase and sale, to letting and hiring,
+that in some cases it is a question to which class of the two a contract
+belongs. As an instance may be taken those lands which are delivered
+over to be enjoyed for ever, upon the terms, that is to say, that so
+long as the rent is paid to the owner it shall not be lawful for the
+latter to take the lands away from either the original hirer, or his
+heir, or any one else to whom he or his heirs has conveyed them by sale,
+gift, dowry, or in any other way whatsoever. The questionings of the
+earlier lawyers, some of whom thought this kind of contract a hiring,
+and others a sale, occasioned the enactment of the statute of Zeno,
+which determined that this contract of emphyteusis, as it is called, was
+of a peculiar nature, and should not be included under either hire or
+sale, but should rest on the terms of the agreement in each particular
+case: so that if anything were agreed upon between the parties, this
+should bind them exactly as if it were inherent in the very nature of
+the contract; while if they did not agree expressly at whose risk the
+land should be, it should be at that of the owner in case of total
+destruction, and at that of the tenant, if the injury were merely
+partial. And these rules we have adopted in our legislation.
+
+4 Again, if a goldsmith agrees to make Titius rings of a certain weight
+and pattern out of his own gold for, say, ten aurei, it is a question
+whether the contract is purchase and sale or letting and hiring. Cassius
+says the material is bought and sold, the labour let and hired; but it
+is now settled that there is only a purchase and sale. But if Titius
+provided the gold, and agreed to pay him for his work, the contract is
+clearly a letting and hiring.
+
+5 The hirer ought to observe all the terms of the contract, and in the
+absence of express agreement his obligations should be ascertained by
+reference to what is fair and equitable. Where a man has either given or
+promised for hire for the use of clothes, silver, or a beast of burden,
+he is required in his charge of it to show as much care as the most
+diligent father of a family shows in his own affairs; if he do this, and
+still accidentally lose it, he will be under no obligation to restore
+either it or its value.
+
+6 If the hirer dies before the time fixed for the termination of the
+contract has elapsed, his heir succeeds to his rights and obligations in
+respect thereof.
+
+
+
+
+TITLE XXV. OF PARTNERSHIP
+
+A partnership either extends to all the goods of the partners, when the
+Greeks call it by the special name of 'koinopraxia,' or is confined to
+a single sort of business, such as the purchase and sale of slaves, oil,
+wine, or grain.
+
+1 If no express agreement has been made as to the division of the profit
+and loss, an equal division of both is understood to be intended, but
+if it has, such agreement ought to be carried into effect; and there
+has never been any doubt as to the validity of a contract between two
+partners that one shall take twothirds of the profit and bear twothirds
+of the loss, and that the remaining third shall be taken and borne
+respectively by the other.
+
+2 If Titius and Seius agreed that the former should take twothirds of
+the profits, and bear only onethird of the loss, and that the latter
+should bear twothirds of the loss, and take only onethird of the
+profits, it has been made a question whether such an agreement ought to
+be held valid. Quintus Mucius thought such an arrangement contrary to
+the very nature of partnership, and therefore not to be supported: but
+Servius Sulpicius, whose opinion has prevailed, was of a different view,
+because the services of a particular partner are often so valuable that
+it is only just to admit him to the business on more favourable terms
+than the rest. It is certain that a partnership may be formed on the
+terms that one partner shall contribute all the capital, and that
+the profits shall be divided equally, for a man's services are often
+equivalent to capital. Indeed, the opinion of Quintus Mucius is now so
+generally rejected, that it is admitted to be a valid contract that
+a partner shall take a share of the profits, and bear no share in the
+loss, which indeed Servius, consistently with his opinion, maintained
+himself. This of course must be taken to mean that if there is a profit
+on one transaction, and a loss on another, a balance should be struck,
+and only the net profit be considered as profits.
+
+3 It is quite clear that if the shares are expressed in one event only,
+as for instance in the event of profit, but not in the event of loss, or
+vice versa, the same proportions must be observed, in the event of which
+no mention has been made, as in the other.
+
+4 The continuance of partnership depends on the continuing consent of
+the members; it is dissolved by notice of withdrawal from any one of
+them. But of course if the object of a partner in withdrawing from the
+partnership is to fraudulently keep for himself some accruing gain--for
+instance, if a partner in all goods succeeds to an inheritance, and
+withdraws from the partnership in order to have exclusive possession
+thereof--he will be compelled to divide this gain with his partners; but
+what he gains undesignedly after withdrawing he keeps to himself, and
+his partner always has the exclusive benefit of whatever accrues to him
+after such withdrawal.
+
+5 Again, a partnership is dissolved by the death of a partner, for when
+a man enters into a contract of partnership, he selects as his partner
+a definite person. Accordingly, a partnership based on the agreement
+of even several persons is dissolved by the death of one of them, even
+though several others survive, unless when the contract was made it was
+otherwise agreed.
+
+6 So too a partnership formed for the attainment of some particular
+object is terminated when that object is attained.
+
+7 It is clear too that a partnership is dissolved by the forfeiture of
+the property of one of the partners, for such an one, as he is replaced
+by a successor, is reckoned civilly dead.
+
+8 So again, if one of the partners is in such embarrassed circumstances
+as to surrender all his property to his creditors, and all that he
+possessed is sold to satisfy the public or private claims upon him,
+the partnership is dissolved, though if the members still agree to be
+partners, a new partnership would seem to have begun.
+
+9 It has been doubted whether one partner is answerable to another on
+the action of partnership for any wrong less than fraud, like the bailee
+in a deposit, or whether he is not suable also for carelessness, that is
+to say, for inattention and negligence; but the latter opinion has now
+prevailed, with this limitation, that a partner cannot be required
+to satisfy the highest standard of carefulness, provided that in
+partnership business he shows as much diligence as he does in his own
+private affairs: the reason for this being that if a man chooses as his
+partner a careless person, he has no one to blame but himself.
+
+
+
+
+TITLE XXVI. OF AGENCY
+
+Of the contract of agency there are five modes. A man gives you a
+commission either for his own exclusive benefit, or for his own and
+yours together, or for that of some third person, or for his own and the
+third person's, or for the third person's and yours. A commission given
+simply for the sake of the agent gives rise in reality to no relation
+of agency, and accordingly no obligation comes into existence, and
+therefore no action.
+
+1 A commission is given solely for the benefit of the principal when,
+for instance, the latter instructs you to manage his business, to buy
+him a piece of land, or to enter into a stipulation as surety for him.
+
+2 It is given for your benefit and for that of your principal together
+when he, for instance, commissions you to lend money at interest to a
+person who borrows it for your principal's benefit; or where, on your
+wishing to sue him as surety for some one else, he commissions you to
+sue his principal, himself undertaking all risk: or where, at his risk,
+you stipulate for payment from a person whom he substitutes for himself
+as your debtor.
+
+3 It is given for the benefit of a third person when, for instance, some
+one commissions you to look after Titius's affairs as general agent, or
+to buy Titius a piece of land, or to go surety for him.
+
+4 It is for the benefit of the principal and a third person when, for
+instance, some one instructs you to look after affairs common to himself
+and Titius, or to buy an estate for himself and Titius, or to go surety
+for them jointly.
+
+5 It is for the benefit of yourself and a third person when, for
+instance, some one instructs you to lend money at interest to Titius; if
+it were to lend money free of interest, it would be for the benefit of
+the third person only.
+
+6 It is for your benefit alone if, for instance, some one commissions
+you to invest your money in the purchase of land rather than to lend it
+at interest, or vice versa. But such a commission is not really so
+much a commission in the eye of the law as a mere piece of advice, and
+consequently will not give rise to an obligation, for the law holds no
+one responsible as on agency for mere advice given, even if it turns
+out ill for the person advised, for every one can find out for himself
+whether what he is advised to do is likely to turn out well or ill.
+Consequently, if you have money lying idle in your cashbox, and on so
+and so's advice buy something with it, or put it out at interest, you
+cannot sue that person by the action on agency although your purchase
+or loan turns out a bad speculation; and it has even been questioned, on
+this principle, whether a man is suable on agency who commissions you to
+lend money to Titius; but the prevalent opinion is that of Sabinus, that
+so specific a recommendation is sufficient to support an action, because
+(without it) you would never have lent your money to Titius at all.
+
+7 So too instructions to commit an unlawful or immoral act do not create
+a legal obligation--as if Titius were to instigate you to steal, or to
+do an injury to the property or person of some one else; and even if you
+act on his instructions, and have to pay a penalty in consequence, you
+cannot recover its amount from Titius.
+
+8 An agent ought not to exceed the terms of his commission. Thus, if
+some one commissions you to purchase an estate for him, but not to
+exceed the price of a hundred aurei, or to go surety for Titius up
+to that amount, you ought not in either transaction to exceed the sum
+specified: for otherwise you will not be able to sue him on the agency.
+Sabinus and Cassius even thought that in such a case you could not
+successfully sue him even for a hundred aurei, though the leaders of
+the opposite school differed from them, and the latter opinion is
+undoubtedly less harsh. If you buy the estate for less, you will have
+a right of action against him, for a direction to buy an estate for a
+hundred aurei is regarded as an implied direction to buy, if possible,
+for a smaller sum.
+
+9 The authority given to an agent duly constituted can be annulled by
+revocation before he commences to act upon it.
+
+10 Similarly, the death of either the principal or the agent before the
+latter commences to act extinguishes the agent's authority; but equity
+has so far modified this rule that if, after the death of a principal
+and without having notice of his decease, an agent executes his
+commission, he can sue on the agency: for otherwise the law would be
+penalizing a reasonable and unavoidable ignorance. Similar to this is
+the rule, that debtors who pay a manumitted steward, say, of Titius,
+without notice of his manumission, are discharged from liability, though
+by the strict letter of the law they are not discharged, because they
+have not paid the person whom they were bound to pay.
+
+11 It is open to every one to decline a commission of agency, but
+acceptance must be followed by execution, or by a prompt resignation, in
+order to enable the principal to carry out his purpose either personally
+or by the appointment of another agent. Unless the resignation is made
+in such time that the principal can attain his object without suffering
+any prejudice, an action will lie at his suit, in default of proof by
+the agent that he could not resign before, or that his resignation,
+though inconvenient, was justifiable.
+
+12 A commission of agency may be made to take effect from a specified
+future day, or may be subject to a condition.
+
+13 Finally, it should be observed that unless the agent's services
+are gratuitous, the relation between him and the principal will not be
+agency proper, but some other kind of contract; for if a remuneration is
+fixed, the contract is one of hiring. And generally we may say that in
+all cases where, supposing a man's services are gratuitous, there would
+be a contract of agency or deposit, there is held to be a contract of
+hiring if remuneration is agreed upon; consequently, if you give clothes
+to a fuller to clean or to finish, or to a tailor to mend, without
+agreeing upon or promising any remuneration, you can be sued by the
+action on agency.
+
+
+
+
+TITLE XXVII. OF QUASI-CONTRACTUAL OBLIGATION
+
+Having enumerated the different kinds of contracts, let us now examine
+those obligations also which do not originate, properly speaking, in
+contract, but which, as they do not arise from a delict, seem to be
+quasicontractual.
+
+1 Thus, if one man has managed the business of another during the
+latter's absence, each can sue the other by the action on uncommissioned
+agency; the direct action being available to him whose business was
+managed, the contrary action to him who managed it. It is clear that
+these actions cannot properly be said to originate in a contract, for
+their peculiarity is that they lie only where one man has come forward
+and managed the business of another without having received any
+commission so to do, and that other is thereby laid under a legal
+obligation even though he knows nothing of what has taken place. The
+reason of this is the general convenience; otherwise people might be
+summoned away by some sudden event of pressing importance, and without
+commissioning any one to look after and manage their affairs, the result
+of which would be that during their absence those affairs would be
+entirely neglected: and of course no one would be likely to attend to
+them if he were to have no action for the recovery of any outlay he
+might have incurred in so doing. Conversely, as the uncommissioned
+agent, if his management is good, lays his principal under a legal
+obligation, so too he is himself answerable to the latter for an account
+of his management; and herein he must show that he has satisfied the
+highest standard of carefulness, for to have displayed such carefulness
+as he is wont to exercise in his own affairs is not enough, if only a
+more diligent person could have managed the business better.
+
+2 Guardians, again, who can be sued by the action on guardianship,
+cannot properly be said to be bound by contract, for there is no
+contract between guardian and ward: but their obligation, as
+it certainly does not originate in delict, may be said to be
+quasicontractual. In this case too each party has a remedy against
+the other: not only can the ward sue the guardian directly on the
+guardianship, but the guardian can also sue the ward by the contrary
+action of the same name, if he has either incurred any outlay in
+managing the ward's property, or bound himself on his behalf, or pledged
+his own property as security for the ward's creditors.
+
+3 Again, where persons own property jointly without being partners, by
+having, for instance, a joint bequest or gift made to them, and one of
+them is liable to be sued by the other in a partition suit because he
+alone has taken its fruits, or because the plaintiff has laid out money
+on it in necessary expenses: here the defendant cannot properly be said
+to be bound by contract, for there has been no contract made between the
+parties; but as his obligation is not based on delict, it may be said to
+be quasicontractual.
+
+4 The case is exactly the same between joint heirs, one of whom is
+liable to be sued by the other on one of these grounds in an action for
+partition of the inheritance.
+
+5 So, too, the obligation of an heir to discharge legacies cannot
+properly be called contractual, for it cannot be said that the legatee
+has contracted at all with either the heir or the testator: yet, as
+the heir is not bound by a delict, his obligation would seem to be
+quasicontractual.
+
+6 Again, a person to whom money not owed is paid by mistake is thereby
+laid under a quasicontractual obligation; an obligation, indeed, which
+is so far from being contractual, that, logically, it may be said to
+arise from the extinction rather than from the formation of a contract;
+for when a man pays over money, intending thereby to discharge a debt,
+his purpose is clearly to loose a bond by which he is already bound, not
+to bind himself by a fresh one. Still, the person to whom money is thus
+paid is laid under an obligation exactly as if he had taken a loan for
+consumption, and therefore he is liable to a condiction.
+
+7 Under certain circumstances money which is not owed, and which is paid
+by mistake, is not recoverable; the rule of the older lawyers on this
+point being that wherever a defendant's denial of his obligation is
+punished by duplication of the damages to be recovered--as in actions
+under the lex Aquilia, and for the recovery of a legacy--he cannot get
+the money back on this plea. The older lawyers, however, applied this
+rule only to such legacies of specific sums of money as were given by
+condemnation; but by our constitution, by which we have assimilated
+legacies and trust bequests, we have made this duplication of damages
+on denial an incident of all actions for their recovery, provided the
+legatee or beneficiary is a church, or other holy place honoured for its
+devotion to religion and piety. Such legacies, although paid when not
+due, cannot be reclaimed.
+
+
+
+
+TITLE XXVIII. OF PERSONS THROUGH WHOM WE CAN ACQUIRE OBLIGATIONS
+
+Having thus gone through the classes of contractual and quasicontractual
+obligations, we must remark that rights can be acquired by you not only
+on your own contracts, but also on those of persons in your power--that
+is to say, your slaves and children. What is acquired by the contracts
+of your slaves becomes wholly yours; but the acquisitions of children in
+your power by obligations must be divided on the principle of ownership
+and usufruct laid down in our constitution: that is to say, of the
+material results of an action brought on an obligation made in favour
+of a son the father shall have the usufruct, though the ownership is
+reserved to the son himself: provided, of course, that the action is
+brought by the father, in accordance with the distinction drawn in our
+recent constitution.
+
+1 Freemen also, and the slaves of another person, acquire for you if
+you possess them in good faith, but only in two cases, namely, when they
+acquire by their own labour, or in dealing with your property.
+
+2 A usufructuary or usuary slave acquires under the same conditions for
+him who has the usufruct or use.
+
+3 It is settled law that a slave jointly owned acquires for all his
+owners in the proportion of their property in him, unless he names one
+exclusively in a stipulation, or in the delivery of property to himself,
+in which case he acquires for him alone; as in the stipulation 'do you
+promise to convey to Titius, my master?' If it was by the direction of
+one of his joint owners only that he entered into a stipulation, the
+effect was formerly doubted; but now it has been settled by our decision
+that (as is said above) under such circumstances he acquires for him
+only who gave him the order.
+
+
+
+
+TITLE XXIX. OF THE MODES IN WHICH OBLIGATIONS ARE DISCHARGED
+
+An obligation is always extinguished by performance of what is owed,
+or by performance of something else with the creditor's assent. It is
+immaterial from whom the performance proceeds--be it the debtor himself,
+or some one else on his behalf: for on performance by a third person the
+debtor is released, whether he knows of it or not, and even when it is
+against his will. Performance by the debtor releases, besides himself,
+his sureties, and conversely performance by a surety releases, besides
+himself, the principal debtor.
+
+1 Acceptilation is another mode of extinguishing an obligation, and
+is, in its nature, an acknowledgement of a fictitious performance. For
+instance, if something is due to Titius under a verbal contract, and he
+wishes to release it, it can be done by his allowing the debtor to ask
+'that which I promised thee has thou received?' and by his replying 'I
+have received it.' An acceptilation can be made in Greek, provided the
+form corresponds to that of the Latin words, as 'exeis labon denaria
+tosa; exo labon.' This process, as we said, discharges only obligations
+which arise from verbal contract, and no others, for it seemed only
+natural that where words can bind words may also loose: but a debt due
+from any other cause may be transformed into a debt by stipulation, and
+then released by an imaginary verbal payment or acceptilation. So, too,
+as a debt can be lawfully discharged in part, so acceptilation may be
+made of part only.
+
+2 A stipulation has been invented, commonly called Aquilian, by which
+an obligation of any kind whatsoever can be clothed in stipulation form,
+and then extinguished by acceptilation; for by this process any kind of
+obligation may be novated. Its terms, as settled by Gallus Aquilius,
+are as follow: 'Whatever, and on whatsoever ground, you are or shall
+be compellable to convey to or do for me, either now or on a future
+specified day, and for whatsoever I have or shall have against you an
+action personal or real, or any extraordinary remedy, and whatsoever of
+mine you hold or possess naturally or civilly, or would possess, or now
+fail to possess through some wilful fault of your own--as the value of
+each and all of these claims Aulua Agerius stipulated for the payment
+of such and such a sum, and payment was formally promised by Numerius
+Negidius.' Then conversely, Numerius Negidius asked Aulus Agerius, 'hast
+thou received the whole of what I have today engaged, by the Aquilian
+stipulation, to pay thee?' to which Aulus Agerius replied 'I have it,
+and account it received.'
+
+3 Novation is another mode of extinguishing an obligation, and takes
+place when you owe Seius a sum, and he stipulates for payment thereof
+from Titius; for the intervention of a new person gives birth to a new
+obligation, and the first obligation is transformed into the second, and
+ceases to exist. Sometimes indeed the first stipulation is avoided by
+novation even though the second is of no effect: for instance, if you
+owe Titius a sum, and he stipulates for payment thereof from a pupil
+without his guardian's authority, he loses his claim altogether, for
+you, the original debtor, are discharged, and the second obligation is
+unenforceable. The same does not hold if one stipulate from a slave; for
+then the former debtor continues bound as fully as if one had stipulated
+from no one. But when the original debtor is the promisor, a second
+stipulation produces a novation only if it contains something new--if
+a condition, for instance, or a term, or a surety be added, or taken
+away--though, supposing the addition of a condition, we must be
+understood to mean that a novation is produced only if the condition
+is accomplished: if it fails, the prior obligation continues in force.
+Among the older lawyers it was an established rule, that a novation was
+effected only when it was with that intention that the parties entered
+into the second obligation; but as this still left it doubtful when
+the intention was present and when absent, various presumptions were
+established as to the matter by different persons in different cases.
+We therefore issued our constitution, enacting most clearly that no
+novation shall take place unless the contracting parties expressly state
+their intention to be the extinction of the prior obligation, and that
+in default of such statement, the first obligation shall subsist, and
+have the second also added to it: the result being two obligations
+resting each on its own independent ground, as is prescribed by the
+constitution, and as can be more fully ascertained by perusing the same.
+
+4 Moreover, those obligations which are contracted by consent alone are
+dissolved by a contrary agreement. For instance, if Titius and Seius
+agree that the latter shall buy an estate at Tusculum for a hundred
+aurei, and then before execution on either side by payment of the price
+or delivery of the estate they arrange to abandon the sale, they are
+both released. The case is the same with hire and the other contracts
+which are formed by consent alone.
+
+
+
+
+BOOK IV.
+
+
+
+
+TITLE I. OF OBLIGATIONS ARISING FROM DELICT
+
+Having treated in the preceding Book of contractual and quasicontractual
+obligations, it remains to inquire into obligations arising from delict.
+The former, as we remarked in the proper place, are divided into four
+kinds; but of these latter there is but one kind, for, like obligations
+arising from real contracts, they all originate in some act, that is to
+say, in the delict itself, such as a theft, a robbery, wrongful damage,
+or an injury.
+
+1 Theft is a fraudulent dealing with property, either in itself, or in
+its use, or in its possession: an offence which is prohibited by natural
+law.
+
+2 The term furtum, or theft, is derived either from furvum, meaning
+'black,' because it is effected secretly and under cover, and usually by
+night: or from fraus, or from ferre, meaning 'carrying off'; or from the
+Greek word phor, thief, which indeed is itself derived from pherein, to
+carry off.
+
+3 There are two kinds of theft, theft detected in the commission, and
+simple theft: the possession of stolen goods discovered upon search, and
+the introduction of stolen goods, are not (as will appear below) so
+much specific kinds of theft as actionable circumstances connected
+with theft. A thief detected in the commission is termed by the Greeks
+ep'autophoro; in this kind is included not only he who is actually
+caught in the act of theft, but also he who is detected in the place
+where the theft is committed; for instance, one who steals from a house,
+and is caught before he has got outside the door; or who steals olives
+from an olive garden, or grapes from a vineyard, and is caught while
+still in the olive garden or vineyard. And the definition of theft
+detected in the commission must be even further extended, so as to
+include the thief who is caught or even seen with the stolen goods still
+in his hands, whether the place be public or private, and whether the
+person who sees or catches him be the owner of the property, or some
+third person, provided he has not yet escaped to the place where he
+intended to take and deposit his booty: for if he once escapes there,
+it is not theft detected in the commission, even if he be found with the
+stolen goods upon him. What is simple theft is clear from what has
+been said: that is to say, it is all theft which is not detected in the
+commission.
+
+4 The offence of discovery of stolen goods occurs when a person's
+premises are searched in the presence of witnesses, and the stolen
+property is found thereon; this makes him liable, even though innocent
+of theft, to a special action for receiving stolen goods. To introduce
+stolen goods is to pass them off to a man, on whose premises they are
+discovered, provided this be done with the intent that they shall be
+discovered on his premises rather than on those of the introducer. The
+man on whose premises they are found may sue the latter, though innocent
+of theft, in an action for the introduction of stolen goods. There is
+also an action for refusal of search, available against him who prevents
+another who wishes to look in the presence of witnesses for stolen
+property; and finally, by the action for nonproduction of stolen goods,
+a penalty is imposed by the praetor's edict on him who has failed to
+produce stolen property which is searched for and found on his premises.
+But the lastnamed actions, namely, those for receiving stolen goods, for
+introducing them, for refusal of search, and for nonproduction, have now
+become obsolete: for the search for such property is no longer made in
+the old fashion, and accordingly these actions went out of use also.
+It is obvious, however, that any one who knowingly receives and hides
+stolen property may be sued by the action for simple theft.
+
+5 The penalty for theft detected in the commission is four times the
+value, and for simple theft twice the value, of the property stolen,
+whether the thief be a slave or a free person.
+
+6 Theft is not confined to carrying away the property of another with
+the intent of appropriation, but comprises also all corporeal dealing
+with the property of another against the will of the owner. Thus, for
+a pawnee to use the thing which he has in pawn, or to use a thing
+committed to one's keeping as a deposit, or to put a thing which is lent
+for use to a different use than that for which it was lent, is theft; to
+borrow plate, for instance, on the representation that the borrower
+is going to entertain his friends, and then to carry it away into the
+country: or to borrow a horse for a drive, and then to take it out of
+the neighbourhood, or like the man in the old story, to take it into
+battle.
+
+7 With regard, however, to those persons who put a thing lent for use to
+a different purpose than the lender contemplated, the rule is that they
+are guilty of theft only if they know it to be contrary to the will of
+the owner, and that if he had notice he would refuse permission; but
+if they believe that he would give permission, it is not theft: and the
+distinction is just, for there is no theft without unlawful intention.
+
+8 It is also said not to be theft if a man turns a thing lent for use to
+a use other than he believes its owner would sanction, though in point
+of fact its owner is consenting. Whence arose the following question:
+if Antoninus solicits the slave of Peri to steal property of the latter,
+and convey it to him, and the slave informs Peri of it, who, wishing
+to detect Antoninus in the very act, allows the slave to convey the
+property to him; can an action of theft, or for corrupting the slave, or
+neither, be maintained against Antoninus? The case was submitted to us,
+and we examined the conflicting opinions of the earlier jurists on the
+matter: some of whom thought that neither action lay, and others, that
+Peri might sue on theft only. But we, in order to put an end to such
+quibbles, have enacted by our decision that in such case both the action
+on theft and that for corrupting a slave shall lie. It is true that the
+slave has not been corrupted by the advances made to him, so that the
+case does not come within the rules which introduced the action for
+such corruption: yet the wouldbe corrupter's intention was to make him
+dishonest, so that he is liable to a penal action, exactly as if the
+slave had actually been corrupted, lest his immunity from punishment
+should encourage others to perpetrate a similar wrong on a slave less
+strong to resist temptation.
+
+9 A free man too may be the subject of a theft--for instance, a child in
+my power, if secretly removed from my control.
+
+10 So too a man sometimes steals his own property--for instance, a
+debtor who purloins the goods which he has pledged to a creditor.
+
+11 Theft may be chargeable on a person who is not the perpetrator; on
+him, namely, by whose aid and abetment a theft is committed. Among such
+persons we may mention the man who knocks money out of your hand for
+another to pick up, or who stands in your way that another may snatch
+something from you, or scatters your sheep or your oxen, that another
+may steal them, like the man in the old books, who waved a red cloth to
+frighten a herd. If the same thing were done as a frolic, without the
+intention of assisting a theft, the proper action is not theft, but on
+the case. Where, however, Titius commits theft with the aid of Maevius,
+both are liable to an action on theft. A man, too, is held to have aided
+and abetted a theft who places a ladder under a window, or breaks open
+a window or a door, in order that another may steal, or who lends tools
+for the breaking of them open, or a ladder to place under a window, if
+he knows the object for which they are borrowed. It is clear that a
+man is not liable on theft, who, though he advises and instigates an
+offence, does not actually aid in its commission.
+
+12 If a child in power, or a slave, steal property of his father or
+master, it is theft, and the property is deemed stolen, so that no one
+can acquire it by usucapion until it has returned into the hands of the
+owner; but no action will lie on the theft, because between a son in
+power and his father, or between a slave and his master, no action will
+lie on any ground whatsoever. But if the offender is aided and abetted
+by a third person, the latter is liable to an action on theft, because a
+theft has in fact been committed, and by his aid and abetment.
+
+13 The action on theft will lie at the suit of any person interested in
+the security of the property, even though he be not its owner: indeed,
+even the owner cannot maintain the action unless he suffers damage from
+the loss.
+
+14 Hence, when a pawn is stolen the pawnee can sue, even though his
+debtor be perfectly able to pay the debt; for it is more advantageous
+to him to rely on the pledge, than to bring a personal action: and this
+rule is so unbending that even the pawnor who steals a pawn is suable
+for theft by the pawnee.
+
+15 So, if clothes are delivered to be cleaned or finished or mended for
+a certain remuneration, and then are stolen, it is the fuller or tailor
+who can sue on the theft, and not the owner; for the owner suffers
+nothing by the loss, having the action of letting against the fuller or
+tailor for the recovery of his property. Similarly a purchaser in good
+faith, even though a good title as owner is not given to him, can bring
+the action of theft if the property is stolen, exactly like the pawnee.
+The action is, however, not maintainable at the suit of a fuller or
+tailor, unless he is solvent, that is to say, unless he is able to fully
+indemnify the owner; if he is insolvent, the owner cannot recover from
+him, and so can maintain an action against the thief, being, on this
+hypothesis, interested in the recovery of the property. Where the fuller
+or tailor is only partly instead of wholly solvent the rule is the same.
+
+16 The older lawyers held that what has been said of the fuller and
+tailor applied also to the borrower for use, on the ground that as
+the remuneration which the fuller receives makes him responsible for
+custody, so the advantages which the borrower derives from the use
+requires him to keep it safely at his peril. Our wisdom, however, has
+amended the law in this particular in our decisions, by allowing the
+owner the option of suing either the borrower by action on the loan, or
+the thief by action of theft; though when his choice has been determined
+he cannot change his mind, and resort to the other action. If he prefers
+to sue the thief, the borrower is absolutely released from liability;
+but if he proceeds against the borrower, he cannot in any way himself
+sue the thief on the stealing, though this may be done by the borrower,
+who is defendant in the other action, provided that the owner knew, at
+the time when he began his action against the borrower, that the thing
+had been stolen. If he is ignorant of this, or even if he is merely
+doubtful whether the borrower still has the property in his possession
+or not, and sues him on the loan, he may, on subsequently learning the
+facts, and if he wishes to drop the action which he has commenced, and
+sue the thief instead, adopt this course, in which case no obstacle is
+to be thrown in his way, because it was in ignorance that he took action
+and sued the borrower on the loan. If, however, the owner has been
+indemnified by the borrower, in no case can he bring the action of theft
+against the thief, as his rights of action pass to the person who has
+compensated him for the loss of his property. Conversely it is clear,
+that if, at the outset, the owner began an action on the loan against
+the borrower, not knowing that the property had been stolen, and
+subsequently, on learning this, proceeded against the thief instead,
+the borrower is absolutely released from liability, whatever may be the
+result of the owner's action against the thief; the rule being the same,
+whether the borrower be wholly or only partially insolvent.
+
+17 As a depositary is not answerable for the safe keeping of the thing
+deposited, but only for fraud, and, if it is stolen, is not compellable
+to make restitution by action of deposit, he has no interest if it is
+lost, and therefore the action of theft is maintainable only by the
+depositor.
+
+18 Finally, it has been a question whether a child below the age of
+puberty, who carries away the property of another, is guilty of theft.
+The answer is that, as theft depends on intention, obligation by theft
+is not incurred unless the child is near puberty, and so understands its
+delinquency.
+
+19 The object of the action on theft, whether it be for double or
+quadruple the value of the goods stolen, is merely the recovery of the
+penalty; to recover the goods themselves or their value the owner has
+an independent remedy by vindication or condiction. The former is
+the proper remedy when it is known who is in possession of the goods,
+whether this be the thief or any one else: the latter lies against the
+thief or his heir, whether in possession of the stolen property or not.
+
+
+
+
+TITLE II. OF ROBBERY
+
+Robbery is chargeable also as theft; for who deals with the property
+of another more against that other's will than the robber? And thus the
+description of the robber as an audacious thief is a good one. However,
+as a special remedy for this offence the praetor has introduced the
+action for robbery, or rapine with violence, which may be brought within
+a year for four times the value, after a year for simple damages, and
+while lies even when only a single thing of the slightest value has been
+taken with violence. This fourfold value, however, is not all penalty,
+nor is there an independent action for the recovery of the property or
+its value, as we observed was the case in the action of theft detected
+in the commission; but the thing or its value is included in the
+fourfold, so that, in point of fact, the penalty is three times the
+value of the property, and this whether the robber be taken in the act
+or not; for it would be absurd to treat a robber more lightly than one
+who carries off property merely secretly.
+
+1 This action is maintainable only where the robbery is attended with
+wrongful intention; consequently, if a man by mistake thought that
+property was his own, and, in his ignorance of law, forcibly carried it
+off in the belief that it was lawful for an owner to take away, even by
+force, a thing belonging to himself from a person in whose possession it
+was, he cannot be held liable to this action; and similarly on principle
+he would not in such a case be suable for theft. Lest, however, robbers,
+under the cloak of such a plea, should discover a method of gratifying
+a grasping habit with impunity, the law has been amended upon this point
+by imperial constitutions, by which it is enacted that it shall not be
+lawful for any one to forcibly carry off movable property, inanimate or
+animate, even though he believe it to belong to him; and that whosoever
+disobeys this shall forfeit the property, if, in fact, it be his, and if
+it be not, shall restore it, and along with it its value in money.
+And by the said constitutions it is also declared that this provision
+relates not only to movables (of which alone robbery can be committed),
+but also to forcible entries on land and houses, so as to deter men from
+all violent seizing upon property whatsoever under the cloak of such
+excuses.
+
+2 In order to support this action it is not necessary that the goods
+of which robbery has been committed should belong to the plaintiff,
+provided they were taken from among his property. Thus, if a thing be
+let, or lent, or pledged to Titius, or even deposited with him under
+such circumstances that he has an interest in its not being carried
+off--for instance, by his having undertaken the entire responsibility
+for its safe custody;--or if he possesses it in good faith, or has a
+usufruct or any other right in it whereby he suffers loss or incurs
+liability through its being forcibly taken from him, the action will
+be maintainable by him; not necessarily in order to restore to him the
+ownership, but only to compensate him for what it is alleged he has lost
+by its being taken from his goods or withdrawn from his means. In fact,
+it may be said generally that where, supposing property to be taken
+secretly, the action of theft will lie, the action on robbery will lie
+at suit of the same person, if it be taken with violence.
+
+
+
+
+TITLE III. OF THE LEX AQUILIA
+
+Unlawful damage is actionable under the lex Aquilia, whose first chapter
+provides that if a slave of another man, or a quadruped from his flocks
+or herds, be unlawfully killed, the offender shall pay to the owner
+whatever was the highest value thereof within the year next immediately
+preceding.
+
+1 From the fact that this enactment does not speak of quadrupeds simply,
+but only of such quadrupeds as are usually included under the idea of
+flocks and herds, it is to be inferred that it has no application to
+wild animals or to dogs, but only to such beasts as can properly be said
+to graze in herds, namely horses, mules, asses, oxen, sheep, and goats.
+It is settled, too, that swine come under its operation, for they are
+comprehended in 'herds' because they feed in this manner; thus Homer in
+his Odyssey, as quote by Aelius Marcianus in his Institutes, says, You
+will find him sitting among his swine, and they are feeding by the Rock
+of Corax, over against the spring Arethusa.'
+
+2 To kill unlawfully is to kill without any right; thus a man who kills
+a robber is not liable to this action, if he could in no other way
+escape the danger by which he was threatened.
+
+3 So, too, where one man kills another by misadventure, he is not liable
+under this statute, provided there is no fault or carelessness on his
+part; otherwise it is different, for under this statute carelessness is
+as punishable as wilful wrongdoing.
+
+4 Accordingly, if a man, while playing or practising with javelins, runs
+your slave through as he passes by, a distinction is drawn. If it be
+done by a soldier in his exercising ground, that is to say, where such
+practice is usually conducted, he is in no way to blame; but if it be
+done by some one else, his carelessness will make him liable; and so
+it is with the soldier, if he do it in some place other than that
+appropriated to military exercises.
+
+5 So, too, if a man is trimming a tree, and kills your slave as he
+passes by with a bough which he lets fall, he is guilty of negligence,
+if it is near a public way, or a private path belonging to a neighbour,
+and he does not call out to give people warning; but if he calls out,
+and the slave takes no pains to get out of the way, he is not to blame.
+Nor would such a man be liable, if he was cutting a tree far away from
+a road, or in the middle of a field, even if he did not call out; for
+strangers had no business to be there.
+
+6 Again, if a surgeon operates on your slave, and then neglects
+altogether to attend to his cure, so that the slave dies in consequence,
+he is liable for his carelessness.
+
+7 Sometimes, too, unskilfulness is undistinguishable from
+carelessness--as where a surgeon kills your slave by operating upon him
+unskilfully, or by giving him wrong medicines;
+
+8 and similarly, if your slave is run over by a team of mules, which
+the driver has not enough skill to hold, the latter is suable for
+carelessness; and the case is the same if he was simply not strong
+enough to hold them, provided they could have been held by a stronger
+man. The rule also applies to runaway horses, if the running away is due
+to the rider's deficiency either in skill or strength.
+
+9 The meaning of the words of the statute 'whatever was of the highest
+value thereof within the year' is that if any one, for instance, kills
+a slave of yours, who at the moment of his death is lame, or maimed, or
+blind of one eye, but within the year was sound and worth a price, the
+person who kills him is answerable not merely for his value at the time
+of his death, but for his highest value within the year. It is owing to
+this that the action under this statute is deemed to be penal, because
+a defendant is sometimes bound to pay a sum not merely equivalent to the
+damage he has done, but far in excess of it; and consequently, the right
+of suing under the statute does not pass against the heir, though it
+would have done so if the damages awarded had never exceeded the actual
+loss sustained by the plaintiff.
+
+10 By juristic construction of the statute, though not so enacted in its
+terms, it has been settled that one must not only take account, in the
+way we have described, of the value of the body of the slave or animal
+killed, but must also consider all other loss which indirectly falls
+upon the plaintiff through the killing. For instance, if your slave
+has been instituted somebody's heir, and, before he has by your order
+accepted, he is slain, the value of the inheritance you have missed must
+be taken into consideration; and so, too, if one of a pair of mules,
+or one of four chariot horses, or one of a company of slave players is
+killed, account is to be taken not only of what is killed, but also of
+the extent to which the others have been depreciated.
+
+11 The owner whose slave is killed has the option of suing the wrongdoer
+for damages in a private action under the lex Aquilia, or of accusing
+him on a capital charge by indictment.
+
+12 The second chapter of the lex Aquilia is now obsolete;
+
+13 the third makes provision for all damage which is not covered by the
+first. Accordingly, if a slave or some quadruped which comes within
+its terms, is wounded, or if a quadruped which does not come within its
+terms, such as a dog or wild animal, is wounded or killed, an action is
+provided by this chapter; and if any other animal or inanimate thing
+is unlawfully damaged, a remedy is herein afforded; for all burning,
+breaking, and crushing is hereby made actionable, though, indeed, the
+single word 'breaking' covers all these offences, denoting as it does
+every kind of injury, so that not only crushing and burning, but any
+cutting, bruising, spilling, destroying, or deteriorating is hereby
+denominated. Finally, it has been decided that if one man mixes
+something with another's win or oil, so as to spoil its natural
+goodness, he is liable under this chapter of the statute.
+
+14 It is obvious that, as a man is liable under the first chapter
+only where a slave or quadruped is killed by express design or through
+negligence on his part, so, too, he is answerable for all other damage
+under this chapter only where it results from some wilful act or
+carelessness of his. Under this chapter, however, it is not the highest
+value which the thing had within a year, but that which it had within
+the last thirty days, which is chargeable on the author of the mischief.
+
+15 It is true that here the statute does not expressly say 'the highest
+value,' but Sabinus rightly held that the damages must be assessed as
+if the words 'highest value' occurred also in this chapter; the Roman
+people, who enacted this statute on the proposal of Aquilius the
+tribune, having thought it sufficient to use them in the first chapter
+only.
+
+16 It is held that a direct action lies under this statute only when the
+body of the offender is substantially the instrument of mischief. If a
+man occasions loss to another in any other way, a modified action will
+usually lie against him; for instance, if he shuts up another man's
+slave or quadruped, so as to starve him or it to death, or drives his
+horse so hard as to knock him to pieces, or drives his cattle over a
+precipice, or persuades his slave to climb a tree or go down a well,
+who, in climbing the one or going down the other, is killed or injured
+in any part of his body, a modified action is in all these cases given
+against him. But if a slave is pushed off a bridge or bank into a
+river, and there drowned, it is clear from the facts that the damage
+is substantially done by the body of the offender, who is consequently
+liable directly under the lex Aquilia. If damage be done, not by the
+body or to a body, but in some other form, neither the direct nor the
+modified Aquilian action will lie, though it is held that the wrongdoer
+is liable to an action on the case; as, for instance, where a man is
+moved by pity to loose another's slave from his fetters, and so enables
+him to escape.
+
+
+
+
+TITLE IV. OF INJURIES
+
+By injury, in a general sense, is meant anything which is done without
+any right. Besides this, it has three special significations;
+for sometimes it is used to express outrage, the proper word for
+which--contumely--is derived from the verb 'to contemn,' and so is
+equivalent to the Greek 'ubris': sometimes it means culpable negligence,
+as where damage is said to be done (as in the lex Aquilia) 'with
+injury,' where it is equivalent to the Greek 'adikema'; and sometimes
+iniquity and injustice, which the Greeks express by 'adikia'; thus a
+litigant is said to have received an 'injury' when the praetor or judge
+delivers an unjust judgement against him.
+
+1 An injury or outrage is inflicted not only by striking with the
+first, a stick, or a whip, but also by vituperation for the purpose of
+collecting a crowd, or by taking possession of a man's effects on
+the ground that he was in one's debt; or by writing, composing, or
+publishing defamatory prose or verse, or contriving the doing of any of
+these things by some one else; or by constantly following a matron, or
+a young boy or girl below the age of puberty, or attempting anybody's
+chastity; and, in a word, by innumerable other acts.
+
+2 An outrage or injury may be suffered either in one's own person, or
+in the person of a child in one's power, or even, as now is generally
+allowed, in that of one's wife. Accordingly, if you commit an 'outrage'
+on a woman who is married to Titius, you can be sued not only in her own
+name, but also in those of her father, if she be in his power, and of
+her husband. But if, conversely, it be the husband who is outraged, the
+wife cannot sue; for wives should be protected by their husbands, not
+husbands by their wives. Finally, a father-in-law may sue on an outrage
+committed on his daughterinlaw, if the son to whom she is married is in
+his power.
+
+3 Slaves cannot be outraged themselves, but their master may be outraged
+in their person, though not by all the acts by which an outrage might be
+offered to him in the person of a child or wife, but only by aggravated
+assaults or such insulting acts as clearly tend to dishonour the master
+himself: for instance, by flogging the slave, for which an action lies;
+but for mere verbal abuse of a slave, or for striking him with the fist,
+the master cannot sue.
+
+4 If an outrage is committed on a slave owned by two or more persons
+jointly, the damages to be paid to these severally should be assessed
+with reference not to the shares in which they own him, but to their
+rank or position, as it is to the reputation and not to the property
+that the injury is done;
+
+5 and if an outrage is committed on a slave belonging to Maevius, but
+in whom Titius has a usufruct, the injury is deemed to be done to the
+former rather than to the latter.
+
+6 But if the person outraged is a free man who believes himself to be
+your slave, you have no action unless the object of the outrage was
+to bring you into contempt, though he can sue in his own name. The
+principle is the same when another man's slave believes himself to
+belong to you; you can sue on an outrage committed on him only when its
+object is to bring contempt upon you.
+
+7 The penalty prescribed for outrage in the Twelve Tables was, for a
+limb disabled, retaliation, for a bone merely broken a pecuniary mulct
+proportionate to the great poverty of the age. The praetors, however,
+subsequently allowed the person outraged to put his own estimate on the
+wrong, the judge having a discretion to condemn the defendant either in
+the sum so named by the plaintiff, or in a less amount; and of these
+two kinds of penalties that fixed by the Twelve Tables is now obsolete,
+while that introduced by the praetors, which is also called 'honorary,'
+is most usual in the actual practice of the courts. Thus the pecuniary
+compensation awarded for an outrage rises and falls in amount according
+to the rank and character of the plaintiff, and this principle is
+not improperly followed even where it is a slave who is outraged; the
+penalty where the slave is a steward being different from what it is
+when he is an ordinary menial, and different again when he is condemned
+to wear fetters.
+
+8 The lex Cornelia also contains provisions as to outrages, and
+introduced an action on outrage, available to a plaintiff who alleges
+that he has been struck or beaten, or that a forcible entry has been
+made upon his house; the term 'his house' including not only one which
+belongs to him and in which he lives but also one which is hired by him,
+or in which he is received gratuitously as a guest.
+
+9 An outrage becomes 'aggravated' either from the atrocious character of
+the act, as where a man is wounded or beaten with clubs by another; or
+from the place where it is committed, for instance, in the theatre or
+forum, or in full sight of the praetor; or from the rank of the person
+outraged,--if it be a magistrate, for instance, or if a senator be
+outraged by a person of low condition, or a parent by his child, or a
+patron by his freedman; for such an injury done to a senator, a parent,
+or a patron has a higher pecuniary compensation awarded for it than one
+done to a mere stranger, or to a person of low condition. Sometimes too
+the position of the wound makes an outrage aggravated, as where a man
+is struck in the eye. Whether the person on whom such an outrage is
+inflicted is independent or in the power of another is almost entirely
+immaterial, it being considered aggravated in either case.
+
+10 Finally, it should be observed that a person who has been outraged
+always has his option between the civil remedy and a criminal
+indictment. If he prefers the former, the penalty which is imposed
+depends, as we have said, on the plaintiff's own estimate of the wrong
+he has suffered; if the latter, it is the judge's duty to inflict an
+extraordinary penalty on the offender. It should be remembered, however,
+that by a constitution of Zeno persons of illustrious or still higher
+rank may bring or defend such criminal actions on outrage by an agent,
+provided they comply with the requirements of the constitution, as may
+be more clearly ascertained by a perusal of the same.
+
+11 Liability to an action on outrages attaches not only to him who
+commits the act,--the striking of a blow, for instance--but also
+to those who maliciously counsel or abet in the commission, as, for
+instance, to a man who gets another struck in the face.
+
+12 The right of action on outrage is lost by condonation; thus, if a man
+be outraged, and takes no steps to obtain redress, but at once lets
+the matter, as it is said, slip out of his mind, he cannot subsequently
+alter his intentions, and resuscitate an affront which he has once
+allowed to rest.
+
+
+
+
+TITLE V. OF QUASI-DELICTAL OBLIGATIONS
+
+The obligation incurred by a judge who delivers an unjust or partial
+decision cannot properly be called delictal, and yet it does not arise
+from contract; consequently, as he cannot but be held to have done a
+wrong, even though it may be due to ignorance, his liability would seem
+to be quasidelictal, and a pecuniary penalty will be imposed on him at
+the judge's discretion.
+
+1 Another case of quasidelictal obligation is that of a person from
+whose residence, whether it be his own, or rented, or gratuitously lent
+him, anything is thrown or poured out whereby another is injured; the
+reason why his liability cannot properly be called delictal being that
+it is usually incurred through the fault of some other person, such as
+a slave or freedman. Of a similar character is the obligation of one who
+keeps something placed or hung over a public way, which might fall and
+injure any one. In this last case the penalty has been fixed at ten
+aurei; in that of things thrown or poured out of a dwelling-house the
+action is for damages equivalent to double the loss sustained, though
+if a free man be thereby killed the penalty is fixed at fifty aurei, and
+even if he be merely injured he can sue for such damages as the judge
+shall in his discretion award; and here the latter should take into
+account the medical and other expenses of the plaintiff's illness, as
+well as the loss which he has sustained through being disabled from
+work.
+
+2 If a son in power lives apart from his father, and anything is thrown
+or poured out of his place of residence, or if he has anything so placed
+or hung as to be dangerous to the public, it is the opinion of Julian
+that no action lies against the father, but that the son should be made
+sole defendant; and the same principle should be applied to a son in
+power who is made a judge, and delivers an unjust or partial decision.
+
+3 Similarly shipowners, inn and stable keepers are liable as on a
+quasi-delict for wilful damage or theft committed in their ships, inns,
+or stables, provided the act be done by some or one of their servants
+there employed, and not by themselves; for the action which is given in
+such cases is not based on contract, and yet as they are in some sense
+at fault for employing careless or dishonest servants, their liability
+would seem to be quasidelictal. In such circumstances the action which
+is given is on the case, and lies at suit of the injured person's heir,
+though not against the heir of the shipowner, inn or stable keeper.
+
+
+
+
+TITLE VI. OF ACTIONS
+
+The subject of actions still remains for discussion. An action is
+nothing else than the right of suing before a judge for what is due to
+one.
+
+1 The leading division of all actions whatsoever, whether tried before
+a judge or a referee, is into two kinds, real and personal; that is to
+say, the defendant is either under a contractual or delictal obligation
+to the plaintiff, in which case the action is personal, and the
+plaintiff's contention is that the defendant ought to convey something
+to, or do something for him, or of a similar nature; or else, though
+there is no legal obligation between the parties, the plaintiff asserts
+a ground of action against some one else relating to some thing, in
+which case the action is real. Thus, a man may be in possession of some
+corporeal thing, in which Titius claims a right of property, and which
+the possessor affirms belongs to him; here, if Titius sues for its
+recovery, the action is real.
+
+2 It is real also if a man asserts that he has a right of usufruct over
+a landed estate or a house, or a right of going or driving cattle over
+his neighbour's land, or of drawing water from the same; and so too are
+the actions relating to urban servitudes, as, for instance, where a man
+asserts a right to raise his house, to have an uninterrupted prospect,
+to project some building over his neighbour's land, or to rest the beams
+of his own house on his neighbour's wall. Conversely, there are actions
+relating to usufructs, and to rustic and urban servitudes, of a contrary
+import, which lie at the suit of plaintiffs who deny their opponent's
+right of usufruct, of going or driving cattle, of drawing water, of
+raising their house, or having an uninterrupted view, of projecting some
+building over the plaintiff's land, or of resting the beams of their
+house in the plaintiff's wall. These actions too are real, but negative,
+and never occur in disputes as to corporeal things, in which the
+plaintiff is always the party out of possession; and there is no
+action by which the possessor can (as plaintiff) deny that the thing in
+question belongs to his adversary, except in one case only, as to which
+all requisite information can be gathered from the fuller books of the
+Digest.
+
+3 The actions which have hitherto been mentioned, and others which
+resemble them, are either of statutory origin, or at any rate belong to
+the civil law. There are other actions, however, both real and personal,
+which the praetor has introduced in virtue of his jurisdiction, and of
+which it is necessary to give examples. For instance, he will usually,
+under the circumstances to be mentioned, allow a real action to be
+brought with a fictitious allegation--namely, that the plaintiff has
+acquired a title by usucapion where this, in fact, is not the case;
+or, conversely, he will allow a fictitious plea on the part of the
+defendant, to the effect that the plaintiff has not acquired such a
+title where, in point of fact, he has.
+
+4 Thus, if possession of some object be delivered on a ground sufficient
+to legally transfer the same--for instance, under a sale or gift, as
+part of a dowry, or as a legacy--and the transferee has not yet acquired
+a complete title by usucapion, he has no direct real action for its
+recovery, if he accidentally loses possession, because by the civil law
+a real action lies at the suit of the owner only. But as it seemed hard
+that in such a case there should be no remedy, the praetor introduced
+an action in which the plaintiff, who has lost possession, fictitiously
+allege that he has acquired a full title by usucapion, and thus claims
+the thing as his own. This is called the Publician action, because it
+was first placed in the Edict by a praetor called Publicius.
+
+5 Conversely, if a person, while absent in the service of the State, or
+while in the power of an enemy, acquires by usucapion property belonging
+to some one resident at home, the latter is allowed, within a year
+from the cessation of the possessor's public employment, to sue for
+a recovery of the property by a rescission of the usucapion: by
+fictitiously alleging, in other words, that the defendant has not thus
+acquired it; and the praetor from motives of equity allows this kind of
+action to be brought in certain other cases, as to which information may
+be gathered from the larger work of the Digest or Pandects.
+
+6 Similarly, if a person conveys away his property in fraud of
+creditors, the latter, on obtaining from the governor of the province a
+decree vesting in them possession of the debtor's estate, are allowed to
+avoid the conveyance, and sue for the recovery of the property; in other
+words, to allege that the conveyance has never taken place, and that the
+property consequently still belongs to the debtor.
+
+7 Again, the Servian and quasi-Servian actions, the latter of which
+is also called 'hypothecary,' are derived merely from the praetor's
+jurisdiction. The Servian action is that by which a landlord sues
+for his tenant's property, over which he has a right in the nature
+of mortgage as security for his rent; the quasi-Servian is a similar
+remedy, open to every pledgee or hypothecary creditor. So far then as
+this action is concerned, there is no difference between a pledge and a
+hypothec: and indeed whenever a debtor and a creditor agree that certain
+property of the former shall be the latter's security for his debt, the
+transaction is called a pledge or a hypothec indifferently. In other
+points, however, there is a distinction between them; for the term
+'pledge' is properly used only where possession of the property in
+question is delivered to the creditor, especially if that property be
+movable: while a hypothec is, strictly speaking, such a right created by
+mere agreement without delivery of possession.
+
+8 Besides these, there are also personal actions which the praetor has
+introduced in virtue of his jurisdiction, for instance, that brought
+to enforce payment of money already owed, and the action on a banker's
+acceptance, which closely resembled it. By our constitution, however,
+the first of these actions has been endowed with all the advantages
+which belonged to the second, and the latter, as superfluous, has
+therefore been deprived of all force and expunged from our legislation.
+To the praetor is due also the action claiming an account of the
+peculium of a slave or child in power, that in which the issue is
+whether a plaintiff has made oath, and many others.
+
+9 The action brought to enforce payment of money already owed is
+the proper remedy against a person who, by a mere promise, without
+stipulation, has engaged to discharge a debt due either from himself or
+from some third party. If he has promised by stipulation, he is liable
+by the civil law.
+
+10 The action claiming an account of a peculium is a remedy introduced
+by the praetor against a master or a father. By strict law, such persons
+incur no liability on the contracts of their slaves or children in
+power; yet it is only equitable that damages should still be recoverable
+against them to the extent of the peculium, in which children in power
+and slaves have a sort of property.
+
+11 Again, if a plaintiff, on being challenged by the defendant, deposes
+on oath that the latter owes him the money which is the object of the
+action, and payment is not made to him, the praetor most justly grants
+to him an action in which the issue is, not whether the money is owing,
+but whether the plaintiff has sworn to the debt.
+
+12 There is also a considerable number of penal actions which the
+praetor has introduced in the exercise of his jurisdiction; for
+instance, against those who in any way injure or deface his album;
+or who summon a parent or patron without magisterial sanction; or who
+violently rescue persons summoned before himself, or who compass such a
+rescue; and others innumerable.
+
+13 'Prejudicial' actions would seem to be real, and may be exemplified
+by those in which it is inquired whether a man is free born, or has
+become free by manumission, or in which the question relates to a
+child's paternity. Of these the first alone belongs to the civil law:
+the others are derived from the praetor's jurisdiction.
+
+14 The kinds of action having been thus distinguished, it is clear that
+a plaintiff cannot demand his property from another in the form 'if it
+be proved that the defendant is bound to convey.' It cannot be said that
+what already belongs to the plaintiff ought to be conveyed to him, for
+conveyance transfers ownership, and what is his cannot be made more his
+than it is already. Yet for the prevention of theft, and multiplication
+of remedies against the thief, it has been provided that, besides the
+penalty of twice or four times the value of the property stolen, the
+property itself, or its value, may be recovered from the thief by a
+personal action in the form 'if it be proved that the defendant ought to
+convey,' as an alternative for the real action which is also available
+to the plaintiff, and in which he asserts his ownership of the stolen
+property.
+
+15 We call a real action a 'vindication,' and a personal action, in
+which the contention is that some property should be conveyed to us, or
+some service performed for us, a 'condiction,' this term being derived
+from condicere, which has an old meaning of 'giving notice.' To call
+a personal action, in which the plaintiff contends that the defendant
+ought to convey to him, a condiction, is in reality an abuse of the
+term, for nowadays there is no such notice as was given in the old
+action of that name.
+
+16 Actions may be divided into those which are purely reparative, those
+which are purely penal, and those which are mixed, or partly reparative,
+partly penal.
+
+17 All real actions are purely reparative. Of personal actions those
+which spring from contract are nearly all of the same character; for
+instance, the actions on loans of money, or stipulations, on loans for
+use, on deposit, agency, partnership, sale, and hire. If, however,
+the action be on a deposit occasioned by a riot, a fire, the fall of a
+building, or a shipwreck, the praetor enables the depositor to recover
+double damages, provided he sues the bailee in person; he cannot recover
+double damages from the bailee's heir, unless he can prove personal
+fraud against the latter. In these two cases the action, though on
+contract, is mixed.
+
+18 Actions arising from delict are sometimes purely penal, sometimes
+are partly penal and partly reparative, and consequently mixed. The sole
+object of the action of theft is the recovery of a penalty, whether
+that penalty be four times the value of the property stolen, as in
+theft detected in the commission, or only twice that value, as in simple
+theft. The property itself is recoverable by an independent action in
+which the person from whom it has been stolen claims it as his own,
+whether it be in the possession of the thief himself or of some third
+person; and against the thief himself he may even bring a condiction, to
+recover the property or its value.
+
+19 The action on robbery is mixed, for the damages recoverable
+thereunder are four times the value of the property taken, threefourths
+being pure penalty, and the remaining fourth compensation for the loss
+which the plaintiff has sustained. So too the action on unlawful damage
+under the lex Aquilia is mixed, not only where the defendant denies his
+liability, and so is sued for double damages, but also sometimes where
+the claim is for simple damages only; as where a lame or one-eyed slave
+is killed, who within the year previous was sound and of large value; in
+which case the defendant is condemned to pay his greatest value within
+the year, according to the distinction which has been drawn above.
+Persons too who are under an obligation as heirs to pay legacies or
+trust bequests to our holy churches or other venerable places, and
+neglect to do so until sued by the legatee, are liable to a mixed
+action, by which they are compelled to give the thing or pay the money
+left by the deceased, and, in addition, an equivalent thing or sum as
+penalty, the condemnation being thus in twice the value of the original
+claim.
+
+20 Some actions are mixed in a different sense, being partly real,
+partly personal. They are exemplified by the action for the division of
+a 'family,' by which one of two or more joint heirs can enforce against
+the other or rest a partition of the inheritance, and by the actions
+for the division of common property, and for rectification of boundaries
+between adjoining landed proprietors. In these three actions the judge
+has power, according as shall to him seem fair and equitable, to adjudge
+any part of the joint property, or of the land in dispute, to any one
+of the parties, and to order any one of them who seems to have an undue
+advantage in the partition or rectification to pay a certain sum of
+money to the other or the rest as compensation.
+
+21 The damages recoverable in an action may be either once, twice,
+three, or four times the value of the plaintiff's original interest;
+there is no action by which more than fourfold damages can be claimed.
+
+22 Single damages only are recoverable in the actions on stipulation,
+loan for consumption, sale, hire, agency, and many others besides.
+
+23 Actions claiming double damages are exemplified by those on simple
+theft, on unlawful damage under the lex Aquilia, on certain kinds of
+deposit, and for corruption of a slave, which lies against any one by
+whose instigation and advice another man's slave runs away, or becomes
+disobedient to his master, or takes to dissolute habits, or becomes
+worse in any way whatsoever, and in which the value of property which
+the runaway slave has carried off is taken into account. Finally, as we
+remarked above, the action for the recovery of legacies left to places
+of religion is of this character.
+
+24 An action for triple damages is grounded when a plaintiff makes an
+overstatement of his claim in the writ of summons, in consequence of
+which the officers of the court take too large a fee from the defendant.
+In such a case the latter will be able to recover from the plaintiff
+three times the loss which he sustains by the overcharge, including
+in these damages simple compensation for the sum paid in excess of the
+proper fee. This is provided by a distinguished constitution in our
+Code, under which a statutory condiction clearly lies for the damages in
+question.
+
+25 Quadruple damages are recoverable by the action on theft detected
+in the commission, by the action on intimidation, and by the action
+grounded on the giving of money in order to induce one man to bring a
+vexatious suit against another, or to desist from a suit when brought.
+Under our constitution too a statutory condiction lies for the recovery
+of fourfold damages from officers of the court, who exact money from
+defendants in excess of its provisions.
+
+26 There is this difference between the actions on simple theft and for
+the corruption of a slave, and the other of which we spoke in connexion
+with them, that by the two former double damages are recoverable under
+any circumstances; the latter, namely the action on unlawful damage
+under the lex Aquilia, and that on certain kinds of deposit, entail
+double damages on the defendant only if he denies his liability; if he
+admits it, simple damages alone can be recovered. The damages are double
+under an action for recovery of legacies left to religious places not
+only when the liability is denied, but also when the defendant delays
+payment until sued by the order of a magistrate; if he admits his
+liability, and pays before being so sued, he cannot be compelled to pay
+more than the original debt.
+
+27 The action on intimidation also differs from the others which we
+mentioned in the same connexion, in that it contains in its very nature
+an implied condition that the defendant is entitled to acquittal if, on
+being so ordered by the judge, he restores to the plaintiff the property
+of which the latter has been deprived. In other actions of the same
+class this is not so; for instance, in the action on theft detected
+in the commission, the defendant has under any circumstances to pay
+fourfold damages.
+
+28 Again, some actions are equitable, others are actions of strict
+law. To the former class belong the actions on sale, hire, unauthorised
+agency, agency proper, deposit, partnership, guardianship, loan for use,
+mortgage, division of a 'family,' partition of joint property, those
+on the innominate contracts of sale by commission and exchange, and the
+suit for recovery of an inheritance. Until quite recently it was a moot
+point whether the lastnamed was properly an equitable action, but our
+constitution has definitely decided the question in the affirmative.
+
+29 Formerly too the action for the recovery of a dowry was an equitable
+action: but as we found that the action on stipulation was more
+convenient, we have, while establishing many distinctions, attached
+all the advantages which the former remedy possessed to the action
+on stipulation, when employed for the recovery of a dowry. The former
+action being thus by a judicious reform abolished, that on stipulation,
+by which it has been replaced, has deservedly been invested with all
+the characteristics of an equitable action, so far as and whenever it is
+brought for the recovery of a dowry. We have also given persons entitled
+to sue for such recovery a tacit hypothec over the husband's property,
+but this right is not to give any priority over other hypothecary
+creditors except where it is the wife herself who sues to recover
+her dowry; it being in her interest only that we have made this new
+provision.
+
+30 In equitable actions the judge has full power to assess on good and
+fair grounds the amount due to the plaintiff, and in so doing to take
+into account counterclaims of the defendant, condemning the latter only
+in the balance. Even in actions of strict law counterclaims have been
+permitted since a rescript of the Emperor Marcus, the defendant meeting
+the plaintiff's claim by a plea of fraud. By our constitution, however,
+a wider field has been given to the principle of setoff, when the
+counterclaim is clearly established, the amount claimed in the
+plaintiff's action, whether real or personal, or whatever its nature,
+being reduced by operation of law to the extent of the defendant's
+counterclaim. The only exception to this rule is the action on deposit,
+against which we have deemed it no less than dishonest to allow any
+counterclaim to be set up; for if this were permitted persons might
+be fraudulently prevented from recovering property deposited under the
+pretence of a setoff.
+
+31 There are some actions again which we call arbitrary, because their
+issue depends on an 'arbitrium' or order of the judge. Here, unless on
+such order the defendant satisfies the plaintiff's claim by restoring or
+producing the property, or by performing his obligation, or in a noxal
+action by surrendering the guilty slave, he ought to be condemned. Some
+of such actions are real, others personal. The former are exemplified
+by the Publician action, the Servian action for the recovery of a tenant
+farmer's stock, and the quasi-Servian or socalled hypothecary action;
+the latter by the actions on intimidation and on fraud, by that for the
+recovery of a thing promised at a particular place, and by the action
+claiming production of property. In all these actions, and others of a
+similar nature, the judge has full power to determine on good and just
+grounds, according to the circumstances of each particular case, the
+form in which reparation ought to be made to the plaintiff.
+
+32 It is the judge's duty, in delivering judgement, to make his award as
+definite as possible, whether it relate to the payment of money or
+the delivery of property, and this even when the plaintiff's claim is
+altogether unliquidated.
+
+33 Formerly, if the plaintiff, in his statement of claim, demanded more
+than he was entitled to, his case fell to the ground, that is, he lost
+even that which was his due, and in such cases the praetor usually
+declined to restore him to his previous position, unless he was a minor;
+for in this matter too the general rule was observed of giving relief to
+minors after inquiry made, if it were proved that they had made an error
+owing to their lack of years. If, however, the mistake was entirely
+justifiable, and such as to have possibly misled even the discreetest of
+men, relief was afforded even to persons of full age, as in the case of
+a man who sues for the whole of a legacy, of which part is found to
+have been taken away by codicils subsequently discovered; or where such
+subsequently discovered codicils give legacies to other persons, so
+that, the total amount given in legacies being reduced under the lex
+Falcidia, the first legatee is found to have claimed more than the
+threefourths allowed by that statute. Overstatement of claim takes four
+forms; that is, it may relate either to the object, the time, the place,
+or the specification. A plaintiff makes an overclaim in the object when,
+for instance, he sues for twenty aurei while only ten are owing to him,
+or when, being only part owner of property, he sues to recover the whole
+or a greater portion of it than he is entitled to. Overclaim in respect
+of time occurs when a man sues for money before the day fixed for
+payment, or before the fulfilment of a condition on which payment was
+dependent; for exactly as one who pays money only after it falls due
+is held to pay less than his just debt, so one who makes his demand
+prematurely is held to make an overclaim. Overclaim in respect of place
+is exemplified by a man suing at one place for performance of a promise
+which it was expressly agreed was to be performed at another, without
+any reference, in his claim, to the latter: as, for instance, if a man,
+after stipulating thus, 'Do you promise to pay at Ephesus?' were to
+claim the money as due at Rome, without any addition as to Ephesus.
+This is an overclaim, because by alleging that the money is due at Rome
+simply, the plaintiff deprives his debtor of the advantage he might have
+derived from paying at Ephesus. On this account an arbitrary action is
+given to a plaintiff who sues at a place other than that agreed upon
+for payment, in which the advantage which the debtor might have had in
+paying at the latter is taken into consideration, and which usually is
+greatest in connexion with commodities which vary in price from district
+to district, such as wine, oil, or grain; indeed even the interest
+on loans of money is different in different places. If, however, a
+plaintiff sues at Ephesus--that is, in our example, at the place agreed
+upon for the payment--he need do no more than simply allege the debt,
+as the praetor too points out, because the debtor has all the advantage
+which payment in that particular place gives him. Overclaim in respect
+of specification closely resembles overclaim in respect of place, and
+may be exemplified by a man's stipulating from you 'do you promise
+to convey Stichus or ten aurei?' and then suing for the one or the
+other--that is to say, either for the slave only, or for the money only.
+The reason why this is an overclaim is that in stipulations of this sort
+it is the promisor who has the election, and who may give the slave
+or the money, whichever he prefers; consequently if the promisee sues,
+alleging that either the money alone, or the slave alone, ought to be
+conveyed to him, he deprives his adversary of his election, and thereby
+puts him in a worse position, while he himself acquires an undue
+advantage. Other cases of this form of overclaim occur where a man,
+having stipulated in general terms for a slave, for wine, or for purple,
+sues for the particular slave Stichus, or for the particular wine
+of Campania, or for Tyrian purple; for in all of these instances he
+deprives his adversary of his election, who was entitled, under the
+terms of the stipulation, to discharge his obligation in a mode other
+than that which is required of him. And even though the specific thing
+for which the promisee sues be of little or no value, it is still an
+overclaim: for it is often easier for a debtor to pay what is of greater
+value than what is actually demanded of him. Such were the rules of the
+older law, which, however, has been made more liberal by our own and
+Zeno's statutes. Where the overclaim relates to time, the constitution
+of Zeno prescribes the proper procedure; if it relates to quantity, or
+assumes any other form, the plaintiff, as we have remarked above, is
+to be condemned in a sum equivalent to three times any loss which the
+defendant may have sustained thereby.
+
+34 If the plaintiff in his statement of claim demands less than is his
+due, as for instance by alleging a debt of five aurei, when in fact he
+is owed ten, or by claiming only half of an estate the whole of which
+really belongs to him, he runs no risk thereby, for, by the constitution
+of Zeno of sacred memory, the judge will in the same action condemn the
+defendant in the residue as well as in the amount actually claimed.
+
+35 If he demands the wrong thing in his statement of claim, the rule is
+that he runs no risk; for if he discovers his mistake, we allow him
+to set it right in the same action. For instance, a plaintiff who is
+entitled to the slave Stichus may claim Eros; or he may allege that he
+is entitled to a conveyance under a will, when his right is founded in
+reality upon a stipulation.
+
+36 There are again some actions in which we do not always recover the
+whole of what is due to us, but in which we sometimes get the whole,
+sometimes only part. For instance, if the fund to which our claim looks
+for satisfaction be the peculium of a son in power or a slave, and it
+is sufficient in amount to meet that claim, the father or master is
+condemned to pay the whole debt; but if it is not sufficient, the
+judge condemns him to pay only so far as it will go. Of the mode of
+ascertaining the amount of a peculium we will speak in its proper place.
+
+37 So too if a woman sues for the recovery of her dowry, the rule is
+that the husband is to be condemned to restore it only so far as he is
+able, that is, so far as his means permit. Accordingly, if his means
+will enable him to restore the dowry in full, he will be condemned to do
+so; if not, he will be condemned to pay only so much as he is able. The
+amount of the wife's claim is also usually lessened by the husband's
+right of retaining some portion for himself, which he may do to the
+extent of any outlay he has made on dowry property, according to
+the rule, stated in the larger work of the Digest, that a dowry is
+diminished by operation of law to the extent of all necessary outlay
+thereon.
+
+38 Again, if a man goes to law with his parent or patron, or if one
+partner brings an action of partnership against another, he cannot get
+judgement for more than his adversary is able to pay. The rule is the
+same when a man is sued on a mere promise to give a present.
+
+39 Very often too a plaintiff obtains judgement for less than he was
+owed through the defendant's pleading a setoff: for, as has already been
+observed, the judge, acting on equitable principles, would in such a
+case take into account the cross demand in the same transaction of the
+defendant, and condemn him only in the residue.
+
+40 So too if an insolvent person, who surrenders all his effects to his
+creditors, acquires fresh property of sufficient amount to justify such
+a step, his creditors may sue him afresh, and compel him to satisfy the
+residue of their claims so far as he is able, but not to give up all
+that he has; for it would be inhuman to condemn a man to pay his debts
+in full who has already been once deprived of all his means.
+
+
+
+
+TITLE VII. OF CONTRACTS MADE WITH PERSONS IN POWER
+
+As we have already mentioned the action in respect of the peculium of
+children in power and slaves, we must now explain it more fully, and
+with it the other actions by which fathers and masters are sued for the
+debts of their sons or slaves. Whether the contract be made with a slave
+or with a child in power, the rules to be applied are much the same; and
+therefore, to make our statements as short as possible, we will speak
+only of slaves and masters, premising that what we say of them is true
+also of children and the parents in whose power they are; where the
+treatment of the latter differs from that of the former, we will point
+out the divergence.
+
+1 If a slave enters into a contract at the bidding of his master, the
+praetor allows the latter to be sued for the whole amount: for it is on
+his credit that the other party relies in making the contract.
+
+2 On the same principle the praetor grants two other actions, in which
+the whole amount due may be sued for; that called exercitoria, to
+recover the debt of a shipmaster, and that called institoria, to recover
+the debt of a manager or factor. The former lies against a master
+who has appointed a slave to be captain of a ship, to recover a debt
+incurred by the slave in his character of captain, and it is called
+exercitoria, because the person to whom the daily profits of a ship
+belong is termed an exercitor. The latter lies against a man who has
+appointed a slave to manage a shop or business, to recover any debt
+incurred in that business; it is called institoria, because a person
+appointed to manage a business is termed an institor. And these actions
+are granted by the praetor even if the person whom one sets over a ship,
+a shop, or any other business, be a free man or another man's slave,
+because equity requires their application in these latter cases no less
+than in the former.
+
+3 Another action of the praetor's introduction is that called
+tributoria. If a slave, with the knowledge of his master, devotes his
+peculium to a trade or business, the rule which the praetor follows, in
+respect of contracts made in the course of such trade or business, is
+that the peculium so invested and its profits shall be divided between
+the master, if anything is due to him, and the other creditors in the
+ratio of their claims. The distribution of these assets is left to the
+master, subject to this provision, that any creditor who complains of
+having received less than his proper share can bring this action against
+him for an account.
+
+4 There is also an action in respect of peculium and of what has been
+converted to the uses of the master, under which, if a debt has been
+contracted by a slave without the consent of his master, and some
+portion thereof has been converted to his uses, he is liable to that
+extent, while if no portion has been so converted, he is liable to the
+extent of the slave's peculium. Conversion to his uses is any necessary
+expenditure on his account, as repayment to his creditors of money
+borrowed, repair of his falling house, purchase of corn for his slaves,
+or of an estate for him, or any other necessary. Thus, if out of ten
+aurei which your slave borrows from Titius, he pays your creditor five,
+and spends the remainder in some other way, you are liable for the whole
+of the five, and for the remainder to the extent of the peculium: and
+from this it is clear that if the whole ten were applied to your uses
+Titius could recover the whole from you. Thus, though it is but a single
+action which is brought in respect of peculium and of conversion to
+uses, it has two condemnatory clauses. The judge by whom the action is
+tried first looks to see whether there has been any application to the
+uses of the master, and does not proceed to ascertain the amount of
+the peculium unless there has been no such application, or a partial
+application only. In ascertaining the amount of the peculium deduction
+is first made of what is owed to the master or any person in his power,
+and the residue only is treated as peculium; though sometimes what
+a slave owes to a person in his master's power is not deducted, for
+instance, where that person is another slave who himself belongs to the
+peculium; thus, where a slave owes a debt to his own vicarial slave, its
+amount is not deducted from the peculium.
+
+5 There is no doubt that a person with whom a slave enters into a
+contract at the bidding of his master, or who can sue by the actions
+exercitoria or institoria, may in lieu thereof bring an action in
+respect of the peculium and of conversion to uses; but it would be most
+foolish of him to relinquish an action by which he may with the greatest
+ease recover the whole of what is owing to him under the contract, and
+undertake the trouble of proving a conversion to uses, or the existence
+of a peculium sufficient in amount to cover the whole of the debt. So
+too a plaintiff who can sue by the action called tributoria may sue in
+respect of peculium and conversion to uses, and sometimes the one
+action is the more advisable, sometimes the other. The former has this
+advantage, that in it the master has no priority; there is no deduction
+of debts owing to him, but he and the other creditors stand on precisely
+the same footing; while in the action in respect of peculium deduction
+is first made of debts owing to the master, who is condemned to pay
+over to the creditors only what then remains. On the other hand, the
+advantage of the action in respect of peculium is that in it the slave's
+whole peculium is liable to his creditors, whereas in the action called
+tributoria only so much of it is liable as is invested in the trade
+or business; and this may be only a third, a fourth, or even a less
+fraction, because the slave may have the rest invested in land or
+slaves, or out on loan. A creditor ought therefore to select the one
+or the other action by considering their respective advantages in each
+particular case; though he certainly ought to choose that in respect of
+conversion to uses, if he can prove such conversion.
+
+6 What we have said of the liability of a master on the contracts of
+his slave is equally applicable where the contract is made by a child or
+grandchild in the power of his or her father or grandfather.
+
+7 A special enactment in favour of children in power is found in the
+senatusconsult of Macedo, which has prohibited the giving of loans of
+money to such persons, and refused an action to the lender both against
+the child, whether he be still in power, or has become independent by
+death of the ancestor or emancipation, and against the parent, whether
+he still retains the child in his power, or has emancipated him. This
+enactment was made by the Senate because it was found that persons
+in power, when dragged down by the burden of loans which they had
+squandered in profligacy, often plotted against the lives of their
+parents.
+
+8 Finally, it should be observed that where a contract has been entered
+into by a slave or son in power at his master's or parent's bidding,
+or where there has been a conversion to his uses, a condiction may be
+brought directly against the parent or master, exactly as if he had
+been the original contracting party in person. So too, wherever a man
+is suable by either of the actions called exercitoria and institoria,
+he may, in lieu thereof, be sued directly by a condiction, because in
+effect the contract in such cases is made at his bidding.
+
+
+
+
+TITLE VIII. OF NOXAL ACTIONS
+
+Where a delict, such as theft, robbery, unlawful damages, or outrage,
+is committed by a slave, a noxal action lies against the master, who
+on being condemned has the option of paying the damages awarded, or
+surrendering the slave in satisfaction of the injury.
+
+1 The wrongdoer, that is, the slave, is called 'noxa'; 'noxia' is the
+term applied to the wrong itself, that is, the theft, damage, robbery,
+or outrage.
+
+2 This principle of noxal surrender in lieu of paying damages awarded is
+based on most excellent reason, for it would be unjust that the misdeed
+of a slave should involve his master in any detriment beyond the loss of
+his body.
+
+3 If a master is sued by a noxal action on the ground of his slave's
+delict, he is released from all liability by surrendering the slave in
+satisfaction of the wrong, and by this surrender his right of ownership
+is permanently transferred; though if the slave can procure enough money
+to compensate the surrenderee in full for the wrong he did him, he can,
+by applying to the praetor, get himself manumitted even against the will
+of his new master.
+
+4 Noxal actions were introduced partly by statute, partly by the Edict
+of the praetor; for theft, by the statute of the Twelve Tables; for
+unlawful damages, by the lex Aquilia; for outrage and robbery, by the
+Edict.
+
+5 Noxal actions always follow the person of the wrongdoer. Thus, if your
+slave does a wrong while in your power, an action lies against you; if
+he becomes the property of some other person, that other is the proper
+person to be sued; and if he is manumitted, he becomes directly and
+personally liable, and the noxal action is extinguished. Conversely, a
+direct action may change into noxal; thus, in an independent person has
+done a wrong, and then becomes your slave (as he may in several ways
+described in the first Book), a noxal action lies against you in lieu of
+the direct action which previously lay against the wrongdoer in person.
+
+6 But no action lies for an offence committed by a slave against his
+master, for between a master and a slave in his power there can be no
+obligation; consequently, if the slave becomes the property of some
+other person, or is manumitted, neither he nor his new master can be
+sued; and on the same principle, if another man's slave commits a wrong
+against you, and then becomes your property, the action is extinguished,
+because it has come into a condition in which an action cannot exist;
+the result being that even if the slave passes again out of your power
+you cannot sue. Similarly, if a master commits a wrong against his
+slave, the latter cannot sue him after manumission or alienation.
+
+7 These rules were applied by the ancients to wrongs committed by
+children in power no less than by slaves; but the feeling of modern
+times has rightly rebelled against such inhumanity, and noxal surrender
+of children under power has quite gone out of use. Who could endure in
+this way to give up a son, still more a daughter, to another, whereby
+the father would be exposed to greater anguish in the person of a son
+than even the latter himself, while mere decency forbids such treatment
+in the case of a daughter? Accordingly, such noxal actions are permitted
+only where the wrongdoer is a slave, and indeed we find it often laid
+down by old legal writers that sons in power may be sued personally for
+their own delicts.
+
+
+
+
+TITLE IX. OF PAUPERIES, OR DAMAGE DONE BY QUADRUPEDS
+
+A noxal action was granted by the statute of the Twelve Tables in cases
+of mischief done through wantonness, passion, or ferocity, by irrational
+animals; it being by an enactment of that statute provided, that if the
+owner of such an animal is ready to surrender it as compensation for the
+damage, he shall thereby be released from all liability. Examples of
+the application of this enactment may be found in kicking by a horse,
+or goring by a bull, known to be given that way; but the action does not
+lie unless in causing the damage the animal is acting contrary to its
+natural disposition; if its nature be to be savage, this remedy is not
+available. Thus, if a bear runs away from its owner, and causes damage,
+the quondam owner cannot be sued, for immediately with its escape his
+ownership ceased to exist. The term pauperies, or 'mischief,' is used to
+denote damage done without there being any wrong in the doer of it, for
+an unreasoning animal cannot be said to have done a wrong. Thus far as
+to the noxal action.
+
+1 It is, however, to be observed that the Edict of the aedile forbids
+dogs, boars, bears, or lions to be kept near where there is a public
+road, and directs that if any injury be caused to a free man through
+disobedience of this provision, the owner of the beast shall be
+condemned to pay such sum as to the judge shall seem fair and equitable:
+in case of any other injury the penalty is fixed at double damages.
+Besides this aedilician action, that on pauperies may also be sometimes
+brought against the same defendant; for when two or more actions,
+especially penal ones, may be brought on one and the same ground, the
+bringing of one does not debar the plaintiff from subsequently bringing
+the other.
+
+
+
+
+TITLE X. OF PERSONS THROUGH WHOM WE CAN BRING AN ACTION
+
+We must now remark that a man may sue either for himself, or for another
+as attorney, guardian, or curator: whereas formerly one man could not
+sue for another except in public suits, as an assertor of freedom,
+and in certain actions relating to guardianship. The lex Hostilia
+subsequently permitted the bringing of an action of theft on behalf
+of persons who were in the hands of an enemy, or absent on State
+employment, and their pupils. It was, however, found extremely
+inconvenient to be unable to either bring or defend an action on behalf
+of another, and accordingly men began to employ attorneys for this
+purpose; for people are often hindered by illhealth, age, unavoidable
+absence, and many other causes from attending to their own business.
+
+1 For the appointment of an attorney no set form of words is necessary,
+nor need it be made in the presence of the other party, who indeed
+usually knows nothing about it; for in law any one is your attorney whom
+you allow to bring or defend an action on your behalf.
+
+2 The modes of appointing guardians and curators have been explained in
+the first Book.
+
+
+
+
+TITLE XI. OF SECURITY
+
+The old system of taking security from litigants differed from that
+which has more recently come into use.
+
+Formerly the defendant in a real action was obliged to give security, so
+that if judgement went against him, and he neither gave up the property
+which was in question, nor paid the damages assessed, the plaintiff
+might be able to sue either him or his sureties: and this is called
+security for satisfaction of judgement, because the plaintiff stipulates
+for payment to himself of the sum at which the damages are assessed.
+And there was all the more reason for compelling the defendant in a real
+action to give security if he was merely the representative of another.
+From the plaintiff in a real action no security was required if it was
+on his own account that he sued, but if he was merely an attorney, he
+was required to give security for the ratification of his proceedings
+by his principal, owing to the possibility of the latter's subsequently
+suing in person on the same claim. Guardians and curators were required
+by the Edict to give the same security as attorneys; but when they
+appeared as plaintiffs they were sometimes excused.
+
+1 So much for real actions. In personal actions the same rules applied,
+so far as the plaintiff was concerned, as we have said obtained in real
+actions. If the defendant was represented by another person, security
+had always to be given, for no one is allowed to defend another without
+security; but if the defendant was sued on his own account, he was not
+compelled to give security for satisfaction of judgement.
+
+2 Nowadays, however, the practice is different; for if the defendant
+is sued on his own account, he is not compelled to give security
+for repayment of the damages assessed, whether the action be real or
+personal; all that he has to do is to enter into a personal engagement
+that he will subject himself to the jurisdiction of the court down
+to final judgement; the mode of making such engagement being either
+a promise under oath, which is called a sworn recognizance, or a bare
+promise, or giving of sureties, according to the defendant's rank and
+station.
+
+3 But the case is different where either plaintiff or defendant appears
+by an attorney. If the plaintiff does so, and the attorney's appointment
+is not enrolled in the records, or confirmed by the principal personally
+in court, the attorney must give security for ratification of his
+proceedings by his principal; and the rule is the same if a guardian,
+curator, or other person who has undertaken the management of another's
+affairs begins an action through an attorney.
+
+4 If a defendant appears, and is ready to appoint an attorney to defend
+the action for him, he can do this either by coming personally into
+court, and confirming the appointment by the solemn stipulations
+employed when security is given for satisfaction of judgement, or by
+giving security out of court whereby, as surety for his attorney, he
+guarantees the observance of all the clauses of the socalled security
+for satisfaction of judgement. In all such cases, he is obliged to give
+a right of hypothec over all his property, whether the security be given
+in or out of court, and this right avails against his heirs no less than
+against himself. Finally, he has to enter into a personal engagement
+or recognizance to appear in court when judgement is delivered; and in
+default of such appearance his surety will have to pay all the damages
+to which he is condemned, unless notice of appeal is given.
+
+5 If, however, the defendant for some reason or other does not appear,
+and another will defend for him, he may do so, and it is immaterial
+whether the action be real or personal, provided he will give security
+for satisfaction of the judgement in full; for we have already mentioned
+the old rule, that no one is allowed to defend another without security.
+
+6 All this will appear more clearly and fully by reference to the daily
+practice of the courts, and to actual cases of litigation:
+
+7 and it is our pleasure that these rules shall hold not only in this
+our royal city, but also in all our provinces, although it may be
+that through ignorance the practice elsewhere was different: for it
+is necessary that the provinces generally shall follow the lead of the
+capital of our empire, that is, of this royal city, and observe its
+usages.
+
+
+
+
+TITLE XII. OF ACTIONS PERPETUAL AND TEMPORAL, AND WHICH MAY BE BROUGHT
+BY AND AGAINST HEIRS
+
+It should be here observed that actions founded on statutes,
+senatusconsults, and imperial constitutions could be brought at any
+length of time from the accrual of the cause of action, until certain
+limits were fixed for actions both real and personal by imperial
+enactments; while actions which were introduced by the praetor in the
+exercise of his jurisdiction could, as a rule, be brought only within a
+year, that being the duration of his authority. Some praetorian actions,
+however, are perpetual, that is to say, can be brought at any time
+which does not exceed the limit fixed by the enactments referred to; for
+instance, those granted to 'possessors of goods' and other persons who
+are fictitiously represented as heirs. So, too, the action for theft
+detected in the commission, though praetorian, is perpetual, the praetor
+having judged it absurd to limit it by a year.
+
+1 Actions which will lie against a man under either the civil or the
+praetorian law will not always lie against his heir, the rule being
+absolute that for delict--for instance, theft, robbery, outrage, or
+unlawful damage--no penal action can be brought against the heir. The
+heir of the person wronged, however, may bring these actions, except
+in outrage, and similar cases, if any. Sometimes, even an action on
+contract cannot be brought against the heir; this being the case where
+the testator has been guilty of fraud, and his heir has not profited
+thereby. If, however, a penal action, such as those we have mentioned,
+has been actually commenced by the original parties, it is transmitted
+to the heirs of each.
+
+2 Finally, it must be remarked that if, before judgement is pronounced,
+the defendant satisfies the plaintiff, the judges ought to absolve him,
+even though he was liable to condemnation at the time when the action
+was commenced; this being the meaning of the old dictum, that all
+actions involve the power of absolution.
+
+
+
+
+TITLE XIII. OF EXCEPTIONS
+
+We have next to examine the nature of exceptions. Exceptions are
+intended for the protection of the defendant, who is often in this
+position, that though the plaintiff's case is a good one in the
+abstract, yet as against him, the particular defendant, his contention
+is inequitable.
+
+1 For instance, if you are induced by duress, fraud, or mistake to
+promise Titius by stipulation what you did not owe him, it is clear that
+by the civil law you are bound, and that the action on your promise is
+well grounded; yet it is inequitable that you should be condemned, and
+therefore in order to defeat the action you are allowed to plead
+the exception of duress, or of fraud, or one framed to suit the
+circumstances of the cases.
+
+2 So too, if, as a preliminary to an advance of money, one stipulates
+from you for its repayment, and then never advances it after all, it
+is clear that he can sue you for the money, and you are bound by your
+promise to give it; but it would be iniquitous that you should be
+compelled to fulfil such an engagement, and therefore you are permitted
+to defend yourself by the exception that the money, in point of fact,
+was never advanced. The time within which this exception can be pleaded,
+as we remarked in a former Book, has been shortened by our constitution.
+
+3 Again, if a creditor agrees with his debtor not to sue for a debt, the
+latter still remains bound, because an obligation cannot be extinguished
+by a bare agreement; accordingly, the creditor can validly bring against
+him a personal action claiming payment of the debt, though, as it would
+be inequitable that he should be condemned in the face of the agreement
+not to sue, he may defend himself by pleading such agreement in the form
+of an exception.
+
+4 Similarly, if at his creditor's challenge a debtor affirms on oath
+that he is not under an obligation to convey, he still remains bound;
+but as it would be unfair to examine whether he has perjured himself,
+he can, on being sued, set up the defence that he has sworn to the
+nonexistence of the debt. In real actions, too, exceptions are equally
+necessary; thus, if on the plaintiff's challenge the defendant swears
+that the property is his, there is nothing to prevent the former
+from persisting in his action; but it would be unfair to condemn the
+defendant, even though the plaintiff's contention that the property is
+his be well founded.
+
+5 Again, an obligation still subsists even after judgement in an action,
+real or personal, in which you have been defendent, so that in strict
+law you may be sued again on the same ground of action; but you can
+effectually meet the claim by pleading the previous judgement.
+
+6 These examples will have been sufficient to illustrate our meaning;
+the multitude and variety of the cases in which exceptions are necessary
+may be learnt by reference to the larger work of the Digest or Pandects.
+
+7 Some exceptions derive their force from statutes or enactments
+equivalent to statutes, others from the jurisdiction of the praetor;
+
+8 and some are said to be perpetual or peremptory, others to be
+temporary or dilatory.
+
+9 Perpetual or peremptory exceptions are obstructions of unlimited
+duration, which practically destroy the plaintiff's ground of action,
+such as the exceptions of fraud, intimidation, and agreement never to
+sue.
+
+10 Temporary or dilatory exceptions are merely temporary obstructions,
+their only effect being to postpone for a while the plaintiff's right
+to sue; for example, the plea of an agreement not to sue for a certain
+time, say, five years; for at the end of that time the plaintiff can
+effectually pursue his remedy. Consequently persons who would like to
+sue before the expiration of the time, but are prevented by the plea of
+an agreement to the contrary, or something similar, ought to postpone
+their action till the time specified has elapsed; and it is on this
+account that such exceptions are called dilatory. If a plaintiff brought
+his action before the time had expired, and was met by the exception,
+this would debar him from all success in those proceedings, and formerly
+he was unable to sue again, owing to his having rashly brought the
+matter into court, whereby he consumed his right of action, and lost all
+chance of recovering what was his due. Such unbending rules, however, we
+do not at the present day approve. Plaintiffs who venture to commence
+an action before the time agreed upon, or before the obligation is yet
+actionable, we subject to the constitution of Zeno, which that most
+sacred legislator enacted as to overclaims in respect of time; whereby,
+if the plaintiff does not observe the stay which he has voluntarily
+granted, or which is implied in the very nature of the action, the time
+during which he ought to have postponed his action shall be doubled, and
+at its termination the defendant shall not be suable until he has been
+reimbursed for all expenses hitherto incurred. So heavy a penalty it is
+hoped will induce plaintiffs in no case to sue until they are entitled.
+
+11 Moreover, some personal incapacities produce dilatory exceptions,
+such as those relating to agency, supposing that a party wishes to be
+represented in an action by a soldier or a woman; for soldiers may not
+act as attorneys in litigation even on behalf of such near relatives as
+a father, mother, or wife, not even in virtue of an imperial rescript,
+though they may attend to their own affairs without committing a breach
+of discipline. We have sanctioned the abolition of those exceptions, by
+which the appointment of an attorney was formerly opposed on account of
+the infamy of either attorney or principal, because we found that they
+no longer were met with in actual practice, and to prevent the trial of
+the real issue being delayed by disputes as to their admissibility and
+operation.
+
+
+
+
+TITLE XIV. OF REPLICATIONS
+
+Sometimes an exception, which prima facie seems just to the defendant,
+is unjust to the plaintiff, in which case the latter must protect
+himself by another allegation called a replication, because it parries
+and counteracts the force of the exception. For example, a creditor may
+have agreed with his debtor not to sue him for money due, and then have
+subsequently agreed with him that he shall be at liberty to do so; here
+if the creditor sues, and the debtor pleads that he ought not to be
+condemned on proof being given of the agreement not to sue, he bars the
+creditor's claim, for the plea is true, and remains so in spite of the
+subsequent agreement; but as it would be unjust that the creditor should
+be prevented from recovering, he will be allowed to plead a replication,
+based upon that agreement.
+
+1 Sometimes again a replication, though prima facie just, is unjust
+to the defendant; in which case he must protect himself by another
+allegation called a rejoinder:
+
+2 and if this again, though on the face of it just, is for some reason
+unjust to the plaintiff, a still further allegation is necessary for his
+protection, which is called a surrejoinder.
+
+3 And sometimes even further additions are required by the multiplicity
+of circumstances under which dispositions are made, or by which they
+are subsequently affected; as to which fuller information may easily be
+gathered from the larger work of the Digest.
+
+4 Exceptions which are open to a defendant are usually open to his
+surety as well, as indeed is only fair: for when a surety is sued the
+principal debtor may be regarded as the real defendant, because he can
+be compelled by the action on agency to repay the surety whatsoever he
+has disbursed on his account. Accordingly, if the creditor agrees with
+his debtor not to sue, the latter's sureties may plead this agreement,
+if sued themselves, exactly as if the agreement had been made with
+them instead of with the principal debtor. There are, however, some
+exceptions which, though pleadable by a principal debtor, are not
+pleadable by his surety; for instance, if a man surrenders his property
+to his creditors as an insolvent, and one of them sues him for his debt
+in full, he can effectually protect himself by pleading the surrender;
+but this cannot be done by his surety, because the creditor's main
+object, in accepting a surety for his debtor, is to be able to have
+recourse to the surety for the satisfaction of his claim if the debtor
+himself becomes insolvent.
+
+
+
+
+TITLE XV. OF INTERDICTS
+
+We have next to treat of interdicts or of the actions by which they have
+been superseded. Interdicts were formulae by which the praetor either
+ordered or forbad some thing to be done, and occurred most frequently in
+case of litigation about possession or quasi-possession.
+
+1 The first division of interdicts is into orders of abstention, of
+restitution, and of production. The first are those by which the praetor
+forbids the doing of some act--for instance, the violent ejection of
+a bona fide possessor, forcible interference with the internment of a
+corpse in a place where that may lawfully be done, building upon sacred
+ground, or the doing of anything in a public river or on its banks
+which may impede its navigation. The second are those by which he orders
+restitution of property, as where he directs possession to be restored
+to a 'possessor of goods' of things belonging to an inheritance, and
+which have hitherto been in the possession of others under the title
+of heir, or without any title at all; or where he orders a person to be
+reinstated in possession of land from which he has been forcibly ousted.
+The third are those by which he orders the production of persons or
+property; for instance, the production of a person whose freedom is in
+question, of a freedman whose patron wishes to demand from him certain
+services, or of children on the application of the parent in whose power
+they are. Some think that the term interdict is properly applied only to
+orders of abstention, because it is derived from the verb 'interdicere,'
+meaning to denounce or forbid, and that orders of restitution or
+production are properly termed decrees; but in practice they are all
+called interdicts, because they are given 'inter duos,' between two
+parties.
+
+2 The next division is into interdicts for obtaining possession, for
+retaining possession, and for recovering possession.
+
+3 Interdicts for obtaining possession are exemplified by the one given
+to a 'possessor of goods,' which is called 'Quorum bonorum,' and which
+enjoins that whatever portion of the goods, whereof possession has been
+granted to the claimant, is in the hands of one who holds by the title
+of heir or as mere possessor only, shall be delivered up to the grantee
+of possession. A person is deemed to hold by the title of heir who
+thinks he is an heir; he is deemed to hold as mere possessor who relies
+on no title at all, but holds a portion of the whole of the inheritance,
+knowing that he is not entitled. It is called an interdict for obtaining
+possession, because it is available only for initiating possession;
+accordingly, it is not granted to a person who has already had and lost
+possession. Another interdict for obtaining possession is that named
+after Salvius, by which the landlord gets possession of the tenant's
+property which has been hypothecated as a security for rent.
+
+4 The interdicts 'Uti possidetis' and 'Utrubi' are interdicts for
+retaining possession, and are employed when two parties claim ownership
+in anything, in order to determine which shall be defendant and which
+plaintiff; for no real action can be commenced until it is ascertained
+which of the parties is in possession, because law and reason both
+require that one of them shall be in possession and shall be sued by
+the other. As the role of defendant in a real action is far more
+advantageous than that of plaintiff, there is almost invariably a keen
+dispute as to which party is to have possession pending litigation: the
+advantage consisting in this, that, even if the person in possession has
+no title as owner, the possession remains to him unless and until the
+plaintiff can prove his own ownership: so that where the rights of the
+parties are not clear, judgement usually goes against the plaintiff.
+Where the dispute relates to the possession of land or buildings,
+the interdict called 'Uti possidetis' is employed; where to movable
+property, that called 'Utrubi.' Under the older law their effects were
+very different. In 'Uti possidetis' the party in possession at the
+issue of the interdict was the winner, provided he had not obtained
+that possession from his adversary by force, or clandestinely, or by
+permission; whether he had obtained it from some one else in any of
+these modes was immaterial. In 'Utrubi' the winner was the party who
+had been in possession the greater portion of the year next immediately
+preceding, provided that possession had not been obtained by force, or
+clandestinely, or by permission, from his adversary. At the present
+day, however, the practice is different, for as regards the right to
+immediate possession the two interdicts are now on the same footing;
+the rule being, that whether the property in question be movable or
+immovable, the possession is adjudged to the party who has it at the
+commencement of the action, provided he had not obtained it by force, or
+clandestinely, or by permission, from his adversary.
+
+5 A man's possession includes, besides his own personal possession, the
+possession of any one who holds in his name, though not subject to his
+power; for instance, his tenant. So also a depositary or borrower for
+use may possess for him, as is expressed by the saying that we retain
+possession by any one who holds in our name. Moreover, mere intention
+suffices for the retention of possession; so that although a man is not
+in actual possession either himself or through another, yet if it was
+not with the intention of abandoning the thing that he left it, but with
+that of subsequently returning to it, he is deemed not to have parted
+with the possession. Through what persons we can obtain possession has
+been explained in the second Book; and it is agreed on all hands that
+for obtaining possession intention alone does not suffice.
+
+6 An interdict for recovering possession is granted to persons who have
+been forcibly ejected from land or buildings; their proper remedy being
+the interdict 'Unde vi,' by which the ejector is compelled to restore
+possession, even though it had been originally obtained from him by the
+grantee of the interdict by force, clandestinely, or by permission.
+But by imperial constitutions, as we have already observed, if a man
+violently seizes on property to which he has a title, he forfeits his
+right of ownership; if on property which belongs to some one else,
+he has not only to restore it, but also to pay the person whom he has
+violently dispossessed a sum of money equivalent to its value. In cases
+of violent dispossession the wrongdoer is liable under the lex Iulia
+relating to private or public violence, by the former being meant
+unarmed force, by the latter dispossession effected with arms; and
+the term 'arms' must be taken to include not only shields, swords, and
+helmets, but also sticks and stones.
+
+7 Thirdly, interdicts are divided into simple and double. Simple
+interdicts are those wherein one party is plaintiff and the other
+defendant, as is always the case in orders of restitution or production;
+for he who demands restitution or production is plaintiff, and he from
+whom it is demanded is defendant. Of interdicts which order abstention
+some are simple, others double. The simple are exemplified by those
+wherein the praetor commands the defendant to abstain from desecrating
+consecrated ground, or from obstructing a public river or its banks; for
+he who demands such order is the plaintiff, and he who is attempting
+to do the act in question is defendant. Of double interdicts we have
+examples in Uti possidetis and Utrubi; they are called double because
+the footing of both parties is equal, neither being exclusively
+plaintiff or defendant, but each sustaining the double role.
+
+8 To speak of the procedure and result of interdicts under the older law
+would now be a waste of words; for when the procedure is what is called
+'extraordinary,' as it is nowadays in all actions, the issue of an
+interdict is unnecessary, the matter being decided without any such
+preliminary step in much the same way as if it had actually been taken,
+and a modified action had arisen on it.
+
+
+
+
+TITLE XVI. OF THE PENALTIES FOR RECKLESS LITIGATION
+
+It should here be observed that great pains have been taken by those
+who in times past had charge of the law to deter men from reckless
+litigation, and this is a thing that we too have at heart. The best
+means of restraining unjustifiable litigation, whether on the part of
+a plaintiff or of a defendant, are money fines, the employment of the
+oath, and the fear of infamy.
+
+1 Thus under our constitution, the oath has to be taken by every
+defendant, who is not permitted even to state his defence until he
+swears that he resists the plaintiff's claim because he believes that
+his cause is a good one. In certain cases where the defendant denies his
+liability the action is for double or treble the original claim, as in
+proceedings on unlawful damages, and for recovery of legacies bequeathed
+to religious places. In various actions the damages are multiplied at
+the outset; in an action on theft detected in the commission they are
+quadrupled; for simple theft they are doubled; for in these and some
+other actions the damages are a multiple of the plaintiff's loss,
+whether the defendant denies or admits the claim. Vexatious litigation
+is checked on the part of the plaintiff also, who under our constitution
+is obliged to swear on oath that his action is commenced in good faith;
+and similar oaths have to be taken by the advocates of both parties, as
+is prescribed in other of our enactments. Owing to these substitutes the
+old action of dishonest litigation has become obsolete. The effect
+of this was to penalize the plaintiff in a tenth part of the value he
+claimed by action; but, as a matter of fact, we found that the penalty
+was never exacted, and therefore its place has been taken by the oath
+above mentioned, and by the rule that a plaintiff who sues without just
+cause must compensate his opponent for all losses incurred, and also pay
+the costs of the action.
+
+2 In some actions condemnation carries infamy with it, as in those on
+theft, robbery, outrage, fraud, guardianship, agency, and deposit, if
+direct, not contrary; also in the action on partnership, which is always
+direct, and in which infamy is incurred by any partner who suffers
+condemnation. In actions on theft, robbery, outrage, and fraud, it is
+not only infamous to be condemned, but also to compound, as indeed is
+only just; for obligation based on delict differs widely from obligation
+based on contract.
+
+3 In commencing an action, the first step depends upon that part of the
+Edict which relates to summons; for before anything else is done, the
+adversary must be summoned, that is to say, must be called before
+the judge who is to try the action. And herein the praetor takes into
+consideration the respect due to parents, patrons, and the children and
+parents of patrons, and refuses to allow a parent to be summoned by his
+child, or a patron by his freedman, unless permission so to do has been
+asked of and obtained from him; and for nonobservance of this rule he
+has fixed a penalty of fifty solidi.
+
+
+
+
+TITLE XVII. OF THE DUTIES OF A JUDGE
+
+Finally we have to treat of the duties of a judge; of which the first is
+not to judge contrary to statutes, the imperial laws, and custom.
+
+1 Accordingly, if he is trying a noxal action, and thinks that the
+master ought to be condemned, he should be careful to word his judgement
+thus: 'I condemn Publius Maevius to pay ten aurei to Lucius Titius, or
+to surrender to him the slave that did the wrong.'
+
+2 If the action is real, and he finds against the plaintiff, he ought to
+absolve the defendant; if against the latter, he ought to order him
+to give up the property in question, along with its fruits. If the
+defendant pleads that he is unable to make immediate restitution and
+applies for execution to be stayed, and such application appears to
+be in good faith, it should be granted upon the terms of his finding a
+surety to guarantee payment of the damages assessed, if restitution be
+not made within the time allowed. If the subject of the action be an
+inheritance, the same rule applies as regards fruits as we laid down in
+speaking of actions for the recovery of single objects. If the defendant
+is a mala fide possessor, fruits which but for his own negligence he
+might have gathered are taken into account in much the same way in both
+actions; but a bona fide possessor is not held answerable for fruits
+which he has not consumed or has not gathered, except from the moment
+of the commencement of the action, after which time account is taken as
+well of fruits which might have been gathered but for his negligence as
+of those which have been gathered and consumed.
+
+3 If the object of the action be production of property, its mere
+production by the defendant is not enough, but it must be accompanied by
+every advantage derived from it; that is to say, the plaintiff must be
+placed in the same position he would have been in if production had
+been made immediately on the commencement of the action. Accordingly
+if, during the delay occasioned by trial, the possessor has completed
+a title to the property by usucapion, he will not be thereby saved from
+being condemned. The judge ought also to take into account the mesne
+profits, or fruits produced by the property in the interval between the
+commencement of the action and judgement. If the defendant pleads that
+he is unable to make immediate production, and applies for a stay, and
+such application appears to be in good faith, it should be granted on
+his giving security that he will render up the property. If he neither
+complies at once with the judge's order for production, nor gives
+security for doing so afterwards, he ought to be condemned in a sum
+representing the plaintiff's interest in having production at the
+commencement of the proceedings.
+
+4 In an action for the division of a 'family' the judge ought to assign
+to each of the heirs specific articles belonging to the inheritance, and
+if one of them is unduly favoured, to condemn him, as we have already
+said, to pay a fixed sum to the other as compensation. Again, the fact
+the one only of two jointheirs has gathered the fruits of land comprised
+in the inheritance, or has damaged or consumed something belonging
+thereto, is ground for ordering him to pay compensation to the other;
+and it is immaterial, so far as this action is concerned, whether the
+jointheirs are only two or more in number.
+
+5 The same rules are applied in an action for partition of a number
+of things held by joint-owners. If such an action be brought for the
+partition of a single object, such as an estate, which easily admits
+of division, the judge ought to assign a specific portion of each
+jointowner, condemning such one as seems to be unduly favoured to pay
+a fixed sum to the other as compensation. If the property cannot be
+conveniently divided--as a slave, for instance, or a mule--it ought
+to be adjudged entirely to one only of the jointowners, who should be
+ordered to pay a fixed sum to the other as compensation.
+
+6 In an action for rectification of boundaries the judge ought to
+examine whether an adjudication of property is actually necessary. There
+is only one case where this is so; where, namely, convenience requires
+that the line of separation between fields belonging to different owners
+shall be more clearly marked than heretofore, and where, accordingly,
+it is requisite to adjudge part of the one's field to the owner of the
+other, who ought, in consequence, to be ordered to pay a fixed sum as
+compensation to his neighbour. Another ground for condemnation in
+this action is the commission of any malicious act, in respect of the
+boundaries, by either of the parties, such as removal of landmarks, or
+cutting down boundary trees: as also is contempt of court, expressed by
+refusal to allow the fields to be surveyed in accordance with a judge's
+order.
+
+7 Wherever property is adjudged to a party in any of these actions, he
+at once acquires a complete title thereto.
+
+
+
+
+TITLE XVIII. OF PUBLIC PROSECUTIONS
+
+Public prosecutions are not commenced as actions are, nor indeed is
+there any resemblance between them and the other remedies of which we
+have spoken; on the contrary, they differ greatly both in the mode in
+which they are commenced, and in the rules by which they are conducted.
+
+1 They are called public because as a general rule any citizen may come
+forward as prosecutor in them.
+
+2 Some are capital, others not. By capital prosecutions we mean those
+in which the accused may be punished with the extremest severity of the
+law, with interdiction from water and fire, with deportation, or with
+hard labour in the mines: those which entail only infamy and pecuniary
+penalties are public, but not capital.
+
+3 The following statutes relate to public prosecutions. First, there is
+the lex Iulia on treason, which includes any design against the Emperor
+or State; the penalty under it is death, and even after decease the
+guilty person's name and memory are branded with infamy.
+
+4 The lex Iulia, passed for the repression of adultery, punishes with
+death not only defilers of the marriage-bed, but also those who indulge
+in criminal intercourse with those of their own sex, and inflicts
+penalties on any who without using violence seduce virgins or widows
+of respectable character. If the seducer be of reputable condition,
+the punishment is confiscation of half his fortune; if a mean person,
+flogging and relegation.
+
+5 The lex Cornelia on assassination pursues those persons, who commit
+this crime with the sword of vengeance, and also all who carry weapons
+for the purpose of homicide. By a 'weapon,' as is remarked by Gaius in
+his commentary on the statute of the Twelve Tables, is ordinarily meant
+some missile shot from a bow, but it also signifies anything thrown with
+the hand; so that stones and pieces of wood or iron are included in the
+term. 'Telum,' in fact, or 'weapon,' is derived from the Greek 'telou,'
+and so means anything thrown to a distance. A similar connexion of
+meaning may be found in the Greek word 'belos,' which corresponds to our
+'telum,' and which is derived from 'ballesthai,' to throw, as we learn
+from Xenophon, who writes, 'they carried with them 'belei,' namely
+spears, bows and arrows, slings, and large numbers of stones.'
+'Sicarius,' or assassin, is derived from 'sica,' a long steel knife.
+This statute also inflicts punishment of death on poisoners, who kill
+men by their hateful arts of poison and magic, or who publicly sell
+deadly drugs.
+
+6 A novel penalty has been devised for a most odious crime by another
+statute, called the lex Pompeia on parricide, which provides that any
+person who by secret machination or open act shall hasten the death of
+his parent, or child, or other relation whose murder amounts in law to
+parricide, or who shall be an instigator or accomplice of such a crime,
+although a stranger, shall suffer the penalty of parricide. This is not
+execution by the sword or by fire, or any ordinary form of punishment,
+but the criminal is sewn up in a sack with a dog, a cock, a viper, and
+an ape, and in this dismal prison is thrown into the sea or a river,
+according to the nature of the locality, in order that even before death
+he shall begin to be deprived of the enjoyment of the elements, the
+air being denied him while alive, and interment in the earth when dead.
+Those who kill persons related to them by kinship or affinity, but whose
+murder is not parricide, will suffer the penalties of the lex Cornelia
+on assassination.
+
+7 The lex Cornelia on forgery, otherwise called the statute of wills,
+inflicts penalties on all who shall write, seal, or read a forged will
+or other document, or shall substitute the same for the real original,
+or who shall knowingly and feloniously make, engrave, or use a false
+seal. If the criminal be a slave, the penalty fixed by the statute is
+death, as in the statute relating to assassins and poisoners: if a free
+man, deportation.
+
+8 The lex Iulia, relating to public or private violence, deals with
+those persons who use force armed or unarmed. For the former,
+the penalty fixed by the statute is deportation; for the latter,
+confiscation of one third of the offender's property. Ravishment of
+virgins, widows, persons professed in religion, or others, and all
+assistance in its perpetration, is punished capitally under the
+provisions of our constitution, by reference to which full information
+on this subject is obtainable.
+
+9 The lex Iulia on embezzlement punishes all who steal money or other
+property belonging to the State, or devoted to the maintenance of
+religion. Judges who during the term of office embezzle public money are
+punishable with death, as also are their aiders and abettors, and any
+who receive such money knowing it to have been stolen. Other persons who
+violate the provisions of this statute are liable to deportation.
+
+10 A public prosecution may also be brought under the lex Fabia relating
+to manstealing, for which a capital penalty is sometimes inflicted under
+imperial constitutions, sometimes a lighter punishment.
+
+11 Other statutes which give rise to such prosecutions are the lex Iulia
+on bribery, and three others, which are similarly entitled, and which
+relate to judicial extortion, to illegal combinations for raising the
+price of corn, and to negligence in the charge of public moneys. These
+deal with special varieties of crime, and the penalties which they
+inflict on those who infringe them in no case amount to death, but are
+less severe in character.
+
+12 We have made these remarks on public prosecutions only to enable you
+to have the merest acquaintance with them, and as a kind of guide to a
+fuller study of the subject, which, with the assistance of Heaven, you
+may make by reference to the larger volume of the Digest or Pandects.
+
+
+THE END OF THE INSTITUTES OF JUSTINIAN
+
+
+
+
+
+
+
+
+
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