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+The Project Gutenberg EBook of The Institutes of Justinian, translated
+by J.B. Moyle.
+
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+Title: The Institutes of Justinian
+
+Author:  J.B. Moyle, Translator
+
+Release Date: June, 2004  [EBook #5983]
+[Yes, we are more than one year ahead of schedule]
+[This file was first posted on October 6, 2002]
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+Edition: 10
+
+Language: English
+
+Character set encoding: ASCII
+
+*** START OF THE PROJECT GUTENBERG EBOOK, THE INSTITUTES OF JUSTINIAN ***
+
+
+
+
+This eBook was prepared 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 dis-
+tinguished man Tribonian, master and ex-quaestor 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 dis-
+tinction 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 re-
+quired.  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 inter-
+pret 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 origin-
+ated 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 manu-
+mission cannot stand in the way of rights acquired by birth.
+
+TITLE V
+OF FREEDMEN
+
+Those are freedmen, or made free, who have been manumit-
+ted 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 manu-
+mission.  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 vindica-
+tion, 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 im-
+prove in every matter, we have amended this in two consti-
+tutions, 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 manu-
+mitted 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 con-
+stitution, 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 citizen-
+ship 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 manu-
+mission 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, confer-
+ring 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.  Con-
+sequently, 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 manu-
+mission 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 foster-son or foster-daughter or foster-brother, 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 con-
+fer 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 depend-
+ent 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 intoler-
+able 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 grand-
+daughter, 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 mar-
+riage 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 grand-
+son, 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 imped-
+iment 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 pro-
+hibited 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 daughter-in-law,
+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 daughter-in-law, 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 connex-
+ion 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 sub-
+sequently 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-grand-daughter.  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 con-
+ditions; 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 emanci-
+pation, 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, pro-
+vided 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, where-
+as 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 equiva-
+lent 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 grand-
+father 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 emanci-
+pation 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 grand-
+daughter, 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 con-
+stitution 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 daughter-in-law 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 tes-
+tamentary 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 ap-
+proved 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, where-
+by his appointment becomes a valid act, although of course it
+is otherwise if the testator appointed him guardian in the er-
+roneous 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 twenty-five 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 im-
+plicitly 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 as-
+cendants; 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 con-
+demned 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 guard-
+ians, 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 so-
+called 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 ap-
+pointed 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 con-
+dition was fulfilled, or the term expired, or the succession
+vested in the heir.  2 On the capture of a guardian by the ene-
+my, 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 post-
+liminium.  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 con-
+tained 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 ac-
+cordance 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 pro-
+perty, 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 trans-
+actions 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 co-operation 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 testa-
+mentary guardian be appointed to hold office until the occur-
+rence 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 Testa-
+mentary 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 marriage-
+able 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
+twenty-five 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 suf-
+fering 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 can-
+not 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 ill-health 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 in-
+quiry, any one of them may offer security for indemnifying the
+pupil or person to whom he is curator against loss, and be pre-
+ferred 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 pro-
+perty, 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 magis-
+trate.  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 compel-
+led 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 author-
+ized 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 pro-
+vinces 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 un-
+divided 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 Ill-health 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 alleg-
+ation 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 twenty-five
+were similarly exempted.  But our constitution, having for-
+bidden the latter to aspire to these functions, has made excuses
+unnecessary.  The effect of this enactment is that no pupil or
+person under twenty-five years of age is to be called to a stat-
+utory 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 them-
+selves do not appeal, but ought to allege their grounds of
+excuse within fifty days next after they hear of their appoint-
+ment, 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 ex-
+cused from becoming his own wife's curator, even after inter-
+meddling 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 origin-
+ated 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 re-
+member 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 func-
+tions, 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 sus-
+picion 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 guard-
+ian's property, and orders the sale of the perishable portions
+thereof after appointment of a curator.  Consequently, a guard-
+ian 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 sea-shore.
+No one therefore is forbidden access to the sea-shore, pro-
+vided 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 sea-shore 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 sea-shore, 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 dedi-
+cated 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 un-
+altered, 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 con-
+sent.  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 com-
+pletely 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 con-
+firm 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 be-
+comes his property.  So too any one may take the honey-combs
+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:  other-
+wise 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, how-
+ever, 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 sea-shore, 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 im-
+perceptible 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 be-
+longs to its previous owner.
+
+25 When a man makes a new object out of materials belong-
+ing 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 mix-
+ture 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 pro-
+viding 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 re-
+covery, 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.  Conse-
+quently, 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 build-
+ing 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 unreason-
+able 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 parch-
+ment, 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 modi-
+fied 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 pro-
+vided 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 consti-
+tution, 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 pur-
+chaser 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 over-
+board 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 innum-
+erable.  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 cor-
+poreal, 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 ob-
+struct 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 ex-
+tinguished itself along with the extinction of the latter.  1 Usu-
+fruct 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 build-
+ings, 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 en-
+acted 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 non-exercise during the
+time fixed by law; all of which points are settled by our consti-
+tution.  It is also extinguished when surrendered to the owner
+by the usufructuary (though transfer to a third person is in-
+operative); 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 incon-
+venience 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 consti-
+tution 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 inherit-
+ance and obligations we will treat in their proper places respect-
+ively.  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' pos-
+session 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 over-
+quickly 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 pos-
+session 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 pos-
+sesses 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 pos-
+sessed 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 excheq-
+uer, 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 usu-
+capion, 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 consti-
+tution 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 guaran-
+teeing 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 ex-
+actly 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 conse-
+quently we have enacted by constitution that in nearly every
+respect they shall be treated like legacies, and shall be govern-
+ed 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 inten-
+tion 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.  Enact-
+ments 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 suffer-
+ed 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 bene-
+fited.  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
+non-owner can.  Thus the alienation of dowry land by the hus-
+band, 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 pursu-
+ance 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
+would-be 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 trans-
+action, 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 pos-
+session, 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 circum-
+stances 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 quasi-military, 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 quasi-military 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 dis-
+inherited 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, grand-
+children 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 ap-
+pointed 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 dis-
+inherited 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 dis-
+inherison.  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 ac-
+cused 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 en-
+franchising 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 co-heir, 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
+great-grandchildren 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 commence-
+ment, 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,
+one-fourth 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 in-
+dependent 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 in-
+stituted 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, after-born 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 twenty-five 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, how-
+ever, 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 co-legatee.  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 sub-
+ordinates, 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 sur-
+vivor 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 inherit-
+ance 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 improve-
+ment 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 co-legatees to whom a right of selection
+has been bequeathed, and who cannot agree in their choice,
+or several co-heirs 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 fiduci-
+ary 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 mis-
+take could not be recovered back.  26 An after-born stranger
+again could not take a legacy; an after-born 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 after-born
+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 after-born 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 as-
+certained 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 be-
+queath 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 uncondition-
+ally, 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 them-
+selves 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 some-
+thing; 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 co-heir 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 co-heir.
+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, how-
+ever, 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.  Con-
+versely, if only seventy-five 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 seventy-five 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 one-fourth; 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 quasi-heir.  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 three-
+fourths 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 quasi-heir, by that
+enactment.  But if more than three-fourths, 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 one-fourth 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 ex-
+ceed 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 ex-
+clusive 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.  More-
+over, 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 three-
+fourths 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 inherit-
+ance, 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 some-
+thing 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 con-
+stitution, 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 differ-
+ence 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 oppor-
+tunity 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 be-
+quest 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 be-
+come 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 ful-
+filling 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 recom-
+mended 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 in-
+directly, 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 great-grandchild 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 ob-
+served, however, that a grandchild or great-grandchild 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 con-
+versely 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 un-
+able 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 grand-
+child 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 great-grandchild by a grandson are called to the inherit-
+ance together.  And as it was thought just that grandchildren
+and great-grandchildren 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 one-half, 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 one-half, and three
+or four grandchildren by the other son the other.  7 In ascertain-
+ing 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 here-
+under 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 ad-
+mitted 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 suc-
+cession 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 eman-
+cipated 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 partic-
+ular 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 ex-
+cepted 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 grand-
+father in this way:  grandchildren by daughters, and great-
+grandchildren by granddaughters, whom it regarded only as
+cognates, being called after the agnates in succession to their
+maternal grandfather or great-grandfather, or their grand-
+mother or great-grandmother, 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 great-grandchildren
+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, great-grandchildren, and others who traced
+their descent through a female should have their portion of
+the inheritance diminished by receiving less by one-third 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 inherit-
+ance, even though they stood alone.  Thus, exactly as the
+statute of the Twelve Tables calls the grandchildren and
+great-grandchildren 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, how-
+ever, 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 de-
+ceased'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,
+great-grandchildren 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 re-enact with all its force from
+the date originally determined: provided always, as we direct,
+that the inheritance shall be divided between sons and grand-
+children 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 success-
+ion, 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 con-
+stitution, 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 great-grandfather, 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 consti-
+tution, 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 one-half, 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 off-
+spring; 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 con-
+ferred 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 senatus-
+consult 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 ex-
+ceptions to this rule are emancipated brothers and sisters,
+though not in equal shares with them, but with some de-
+duction, 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 kin-
+ship 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.  Re-
+lations 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 great-grandfather and
+great-grandmother; downwards, the great-grandson and
+great-granddaughter; 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 great-great-grandfather and the great-
+great-grandmother; downwards, the great-great-grandson
+and the great-great-granddaughter; in the collateral line,
+the paternal great-uncle and great-aunt, 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 grand-
+father'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 relation-
+ship 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 omit-
+ted 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 con-
+fusion -- 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 subse-
+quently 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 suc-
+cession 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 some-
+times 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.  Ac-
+cordingly, 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 emanci-
+pated brothers and sisters of the deceased who are called to
+succeed him, and ho, in spite of their loss of status, are pre-
+ferred 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 one-half.  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 pos-
+session 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 descend-
+ants 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
+one-half of the freedman's estate, but to one-third, 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 co-heirs.
+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 ex-
+ternal 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 citizen-
+ship 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 what-
+ever:  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 subse-
+quently 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 in-
+heritance, 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 quasi-heirs, 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 testa-
+mentary possession of goods.  First, the so-called
+`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 pre-
+serve 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 suc-
+cessions, 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 defend-
+ant 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 non-existent.  If any one refuses the
+possession of goods which he has the opportunity of accept-
+ing, 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 possess-
+ion 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 adro-
+gator, 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 represent-
+ative; 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 appli-
+cation 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 credit-
+ors 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 adjudg-
+ed 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 so-called ‘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 per-
+fectly 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 senatus-
+consult, 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, quasi-contractual,
+delictal, and quasi-delictal.  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 ex-
+emplified 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 at-
+tacked 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 re-
+storation 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 him-
+self 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 ex-
+emplified 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 con-
+ditional 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 to-day 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 non-performance 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 non-
+performance 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 non-performance 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 non-performance, 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 obli-
+gations, 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, what-
+ever 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 stip-
+ulation 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 praetor-
+ian, which the praetor is bound to exact simply in virtue of
+his magisterial functions; for instance, security against appre-
+hended 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 some-
+times 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 corre-
+spondence 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 to-day,’ 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 child-
+ren 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 per-
+mitted, 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 docu-
+ments 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 document-
+ary 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 to-day, if such or such a ship
+arrives from Asia to-morrow?’ 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 pre-
+ceding question.  18 When several acts of conveyance or
+performance are comprised in a single stipulation, if the pro-
+misor 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 per-
+formance 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 non-fulfilment 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 pay-
+ment 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 stip-
+ulation 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 Fide-
+jussors 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 consider-
+able 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 condic-
+tion.  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 ob-
+ligation 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 unat-
+tested 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 long-
+haired 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 inund-
+ation, 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 other-
+wise he incurs no liability:  and this is a rule which applies to
+all animals and other objects whatsoever.  The vendor, how-
+ever, 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 con-
+ditionally 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 circum-
+stances, 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 question-
+ings 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 agree-
+ment 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 two-thirds of the
+profit and bear two-thirds 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 two-
+thirds of the profits, and bear only one-third of the loss, and
+that the latter should bear two-thirds of the loss, and take
+only one-third 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 with-
+drawing 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 sur-
+vive, 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 accord-
+ingly 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 commis-
+sions 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 cash-box, and on so and so’s advice buy some-
+thing 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 com-
+missions 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 quasi-contractual.  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 uncom-
+missioned 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 obliga-
+tion 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 pro-
+perly be said to be bound by contract, for there is no contract
+between guardian and ward:  but their obligation, as it cer-
+tainly does not originate in delict, may be said to be quasi-
+contractual.  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 him-
+self 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 pro-
+perly 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 quasi-contractual.  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 obliga-
+tion of an heir to discharge legacies cannot properly be called
+contractual, for it cannot be said that the legatee has con-
+tracted 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 quasi-contractual.  6 Again, a person to whom money not
+owed is paid by mistake is thereby laid under a quasi-con-
+tractual 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 con-
+tract; 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
+quasi-contractual 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 constitu-
+tion.  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 usu-
+fruct 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 perform-
+ance 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 stipula-
+tion has been invented, commonly called Aquilian, by which
+an obligation of any kind whatsoever can be clothed in stipu-
+lation 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 to-day 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 pay-
+ment 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 con-
+tinues 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 inde-
+pendent ground, as is prescribed by the constitution, and as
+can be more fully ascertained by perusing the same.  4 More-
+over, 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
+quasi-contractual obligations, it remains to inquire into obliga-
+tions 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 dis-
+covery 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 in-
+troduce 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 non-production
+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 last-named
+actions, namely, those for receiving stolen goods, for intro-
+ducing them, for refusal of search, and for non-production,
+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 un-
+lawful 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 prop-
+erty 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 would-be
+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 some-
+times 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 advan-
+tageous 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 re-
+sponsible 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 ob-
+stacle 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 condic-
+tion.  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 four-
+fold, 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 him-
+self 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 what-
+soever 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 where-
+by 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 quad-
+ruped 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 care-
+lessness is as punishable as wilful wrong-doing.  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 belong-
+ing 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 undis-
+tinguishable 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 answer-
+able 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 sus-
+tained 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, break-
+ing, 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 dete-
+riorating 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 careless-
+ness 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 ex-
+pressly 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’:  some-
+times 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 out-
+rage 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 con-
+stantly 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 daughter-in-law, 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 com-
+mitted 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 im-
+properly 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 gratui-
+tously 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 com-
+pensation 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 extra-
+ordinary 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 as-
+certained 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 in-
+stance, 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 quasi-delictal,
+and a pecuniary penalty will be imposed on him at the judge’s
+discretion.  1 Another case of quasi-delictal 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 ship-owners, 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 quasi-delictal.  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
+ship-owner, 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 con-
+tractual 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 unin-
+terrupted 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 in-
+stance, 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 belong-
+ing to some one resident at home, the latter is allowed, within
+a year from the cessation of the possessor’s public employ-
+ment, 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 ‘hypothe-
+cary,’ 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 ques-
+tion 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 prae-
+tor 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 consider-
+able 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 ‘Pre-
+judicial’ actions would seem to be real, and may be exemp-
+lified 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 pro-
+perty 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 de-
+rived from condicere, which has an old meaning of ‘giving
+notice.’  To call a personal action, in which the plaintiff con-
+tends 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 cha-
+racter; for instance, the actions on loans of money, or stipu-
+lations, 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 recover-
+able 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, three-fourths being pure
+penalty, and the remaining fourth compensation for the loss
+which the plaintiff has sustained.  So too the action on un-
+lawful 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 adjoin-
+ing 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 dis-
+pute, 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 be-
+sides.  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 con-
+sequence 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 re-
+covery 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 pro-
+perty, 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 last-
+named was properly an equitable action, but our constitution
+has definitely decided the question in the affirmative.  29 For-
+merly too the action for the recovery of a dowry was an
+equitable action:  but as we found that the action on stipula-
+tion 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 re-
+script of the Emperor Marcus, the defendant meeting the
+plaintiff’s claim by a plea of fraud.  By our constitution, how-
+ever, a wider field has been given to the principle of set-off,
+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 fraudu-
+lently prevented from recovering property deposited under the
+pretence of a set-off.  31 There are some actions again which
+we call arbitrary, because their issue depends on an ‘arbi-
+trium’ or order of the judge.  Here, unless on such order the
+defendant satisfies the plaintiff’s claim by restoring or pro-
+ducing 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 so-called 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 pay-
+ment 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, de-
+manded 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 three-fourths allowed by that statute.  Over-statement 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 over-claim 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.  Over-
+claim 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 over-claim.  Over-claim 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 over-claim,
+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.  Over-claim in respect of specification closely resembles
+over-claim 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 over-claim 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; conse-
+quently 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 ad-
+vantage.  Other cases of this form of over-claim 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
+over-claim:  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
+over-claim 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 some-
+times 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.  Ac-
+cordingly, if his means will enable him to restore the dowry in
+full, he will be condemned to do so; if not, he will be condemn-
+ed 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 dimin-
+ished 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 set-off:  for, as has already been ob-
+served, the judge, acting on equitable principles, would in such
+a case take into account the cross demand in the same trans-
+action 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 there-
+fore, 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
+ship-master, 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 insti-
+toria, 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 con-
+verted 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 ascer-
+taining 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 un-
+lawful 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 per-
+sonally 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 in-
+jury 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 ill-health, 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 repre-
+sented 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 de-
+fendant 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 observ-
+ance of all the clauses of the so-called 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 appear-
+ance 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 imma-
+terial 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 per-
+sonal 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 re-
+ferred 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 pro-
+nounced, 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.  Ex-
+ceptions 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 con-
+demned, 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 in-
+equitable 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 him-
+self, he can, on being sued, set up the defence that he has
+sworn to the non-existence 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 judge-
+ment in an action, real or personal, in which you have been
+defendnt, 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 multi-
+tude and variety of the cases in which exceptions are neces-
+sary 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 dura-
+tion, 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 be-
+fore 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 over-claims 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 per-
+sonal incapacities produce dilatory exceptions, such as those
+relating to agency, supposing that a party wishes to be repre-
+sented 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 sub-
+sequently 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 re-
+covering, 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 some-
+times 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 in-
+formation 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 dis-
+bursed 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 prop-
+erty; 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 pro-
+duction are properly termed decrees; but in practice they are
+all called interdicts, because they are given ‘inter duos,’ be-
+tween two parties.  2 The next division is into interdicts for
+obtaining possession, for retaining possession, and for recov-
+ering 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; accord-
+ingly, 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 pos-
+session 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 em-
+ployed when two parties claim ownership in anything, in
+order to determine which shall be defendant and which plain-
+tiff; for no real action can be commenced until it is ascer-
+tained 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 consist-
+ing 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 pos-
+session 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 posses-
+sion 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 subse-
+quently 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 owner-
+ship; 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 dispos-
+session 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 ab-
+stention 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 sus-
+taining 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 pro-
+ceedings 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 obli-
+gation based on contract.
+
+3 In commencing an action, the first step depends upon that
+part of the Edict which relates to summons; for before any-
+thing 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 non-
+observance 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 pro-
+duction by the defendant is not enough, but it must be ac-
+companied 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 commence-
+ment 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 joint-heirs has gathered the fruits of
+land comprised in the inheritance, or has damaged or con-
+sumed 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 joint-heirs 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 joint-owner,
+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
+joint-owners, 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 com-
+mission 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 follow-
+ing 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 inter-
+course 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 con-
+dition, 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 cor-
+responds 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.  Ravish-
+ment 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 refer-
+ence 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 ex-
+tortion, 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
+
+
+Transcribed by
+Howard R. Sauertieg,
+on historic Route 66,
+Albuquerque, New Mexico,
+November, 2001.
+
+
+
+
+
+
+
+
+
+
+
+
+*** END OF THE PROJECT GUTENBERG EBOOK, THE INSTITUTES OF JUSTINIAN ***
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