Gai Institutiones or Institutes of Roman Law by Gaius, with a Translation and Commentary by the late Edward Poste, M.A. Fourth edition, revised and enlarged by E.A. Whittuck, M.A. B.C.L., with an historical introduction by A.H.J. Greenidge, D.Litt. (Oxford: Clarendon Press, 1904). http://oll.libertyfund.org/titles/1154,
|Available in the following formats:|
|Facsimile PDF||38.7 MB||This is a facsimile or image-based PDF made from scans of the original book.|
|Kindle||1.15 MB||This is an E-book formatted for Amazon Kindle devices.|
|EBook PDF||2.09 MB||This text-based PDF or EBook was created from the HTML version of this book and is part of the Portable Library of Liberty.|
|HTML||2.55 MB||This version has been converted from the original text. Every effort has been taken to translate the unique features of the printed book into the HTML medium.|
|Simplified HTML||2.55 MB||This is a simplifed HTML format, intended for screen readers and other limited-function browsers.|
|ePub||814 KB||ePub standard file for your iPad or any e-reader compatible with that format|
An edition with Latin, English translations, and extensive editorial commentary. The Institutes of Roman Law is Gaius’ best known work which became the authoritative legal text during the late Roman Empire. It was the first systematic collection and analysis of Roman law which dealt with all aspects of Roman law: the legal status of persons (slaves, free persons, and citizens), property rights, contracts, and various legal actions.
The text is in the public domain.
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
§ 1. Omnes populi qui legibus et moribus reguntur partim suo proprio, partim communi omnium hominum iure utuntur; nam quod quis|que populus ipse sibi ius constituit, id ipsius proprium est uocaturque ius ciuile, quasi ius proprium ciuitatis; quod uero naturalis ratio inter omnes homines constituit, id apud omnes populos peraeque custoditur uocaturque ius gentium, quasi quo iure omnes gentes utuntur. populus itaque Romanus partim suo proprio, partim communi omnium hominum iure utitur. quae singula qualia sint, suis locis proponemus.
Dig. 1, 1, 9 (Gaius), Inst. 1, 2, 1.
§ 2. Constant autem iura populi Romani ex legibus, plebiscitis, senatusconsultis, constitutionibus principum, edictis eorum qui ius edicendi habent, responsis prudentium.
Inst. 1, 2, 3.
§ 3. Lex est quod populus iubet atque constituit. Plebiscitum est quod plebs iubet atque constituit. plebs autem a populo eo distat, quod populi appellatione uniuersi ciues significantur, connumeratis etiam patriciis; plebis autem appellatione sine patriciis ceteri ciues significantur; unde olim patricii dicebant plebiscitis se non teneri, quia sine auctoritate eorum facta essent; sed postea lex Hortensia lata est, qua cautum est ut plebiscita uniuersum populum tenerent; itaque eo modo legibus exaequata sunt.
Inst. 1, 2, 4.
§ 4. Senatusconsultum est quod senatus iubet atque constituit, idque legis uicem optinet, quamuis fuerit quaesitum.
Inst. 1, 2, 5.
§ 5. Constitutio principis est quod imperator decreto uel edicto uel epistula constituit. nec umquam dubitatum est, quin id legis uicem optineat, cum ipse imperator per legem imperium accipiat
Inst. 1, 2, 6; Dig. 1, 4, 1.
§ 6. ——— ius autem edicendi habent magistratus populi Romani; sed amplissimum ius est in edictis duorum praetorum, urbani et peregrini, quorum in prouinciis iurisdictionem praesides earum habent; item in edictis aedilium curulium, quorum iurisdictionem in prouinciis populi Romani quaestores habent; nam in prouincias Caesaris omnino quaestores non mittuntur, et ob id hoc edictum in his prouinciis non proponitur.
Inst. 1, 2, 7.
§ 7. Responsa prudentium sunt sententiae et opiniones eorum quibus permissum est iura condere. quorum omnium si in unum sententiae concurrunt, id quod ita sentiunt legis uicem optinet; si uero dissentiunt, iudici licet quam uelit sententiam sequi; idque rescripto diui Hadriani significatur.
Inst. 1, 2, 8.
§ 1. The laws of every people governed by statutes and customs are partly peculiar to itself, partly common to all mankind. The rules established by a given state for its own members are peculiar to itself, and are called jus civile; the rules constituted by natural reason for all are observed by all nations alike, and are called jus gentium. So the laws of the people of Rome are partly peculiar to itself, partly common to all nations; and this distinction shall be explained in detail in each place as it occurs.
§ 2. Roman law consists of statutes, plebiscites, senatusconsults, constitutions of the emperors, edicts of magistrates authorized to issue them, and opinions of jurists.
§ 3. A statute is a command and ordinance of the people: a plebiscite is a command and ordinance of the commonalty. The commonalty and the people are thus distinguished: the people are all the citizens, including the patricians; the commonalty are all the citizens, except the patricians. Whence in former times the patricians maintained that they were not bound by the plebiscites, as passed without their authority; but afterwards Edition: current; Page:  a statute called the lex Hortensia was enacted, which provided that the plebiscites should bind the people, and thus plebiscites were made co-ordinate with statutes.
§ 4. A senatusconsult is a command and ordinance of the senate, and has the force of a statute, a point which was formerly controverted.
§ 5. A constitution is law established by the emperor either by decree, edict, or letter; and was always recognized as having the force of a statute, since it is by a statute that the emperor himself acquires supreme executive power.
§ 6. Power to issue edicts is vested in magistrates of the people of Rome, the amplest authority belonging to the edicts of the two praetors, the home praetor and the foreign praetor, whose provincial jurisdiction is vested in the presidents of the provinces, and to the edicts of the curule aediles, whose jurisdiction in the provinces of the people of Rome is vested in quaestors: in the provinces of the emperor no quaestors are appointed, and in these provinces, accordingly, the edict of the aediles is not published.
§ 7. The answers of jurists are the decisions and opinions of persons authorized to lay down the law. If they are unanimous their decision has the force of law; if they disagree, the judge may follow whichever opinion he chooses, as is ruled by a rescript of the late emperor Hadrian.
§ 1.Jurisprudence treats exclusively of positive law: the exclusive origin of positive law is some positive enactment; the term positive enactment including both the express or direct enactments Edition: current; Page:  of the political sovereign, and the implied, indirect, circuitous enactments imported by the sovereign’s acquiescence in the ruling of subordinate authorities. (See Holland’s Jurisprudence, chs. 2-5.)
The rules and principles denoted by the terms praetor-made law, jurist-made law, judge-made law, are only law because they are impliedly adopted, confirmed, and ratified by the silent acquiescence of the sovereign.
The organ by which the jus gentium of the Romans was promulgated, which made it by indirect enactment a portion of Roman Positive law, was principally the Edict of the Praetor. The relations of Roman citizens with aliens (peregrini), that is, with the members of foreign states formerly subjugated by Rome and now living under the protection of Roman law, as well as of aliens in their intercourse with one another, became, about 242 b. c., so frequent as to be made subject to the jurisdiction of a special minister of justice called Praetor peregrinus, who, like the Praetor urbanus, published an annual edict announcing the principles on which justice would be administered. These principles composed jus gentium as opposed to jus civium. Jus gentium, that is to say, was not really, as Roman jurists imagined or represented, a collection of the principles common to the legislation of all nations, but a body of rules which the Roman praetor thought worthy to govern the intercourse of Roman citizens with the members of all, originally independent, but now subject, foreign nations.
Gradually the rules originating in this way were extended to the intercourse of citizens with citizens, in cases where the rigorous conditions of jus civile were not exactly satisfied, and so precepts of jus gentium were transferred from the edict of praetor peregrinus to the edict of praetor urbanus.
The portion of the edict most fertile in principles of jus gentium would be the clauses in which the praetor announced, as he did in some cases, that he would instruct the judex, whom he appointed to hear and determine a controversy, to govern himself by a consideration of what was aequum et bonum, i. e. by his views of equity and expediency: and if any of the oral formularies of the earliest system of procedure (legis actiones) contained these or equivalent terms, such formularies may be regarded as a source of jus gentium. It may be observed that Gaius does not, like some other Roman jurists and notably Ulpian (cf. Dig. 1, 1, 1, 3; Inst. 1, 2 pr.), make any distinction between jus gentium and jus naturale. There is nothing in his writings, as they have come down to us, to draw attention to the fact that the teaching of nature may not be in accordance with the practice of nations, as the institution of slavery showed.Edition: current; Page: 
Another organ of quasi publication, whereby the rules of jus gentium were transformed from ideal law to positive law—from laws of Utopia to laws of Rome—were the writings of the jurists, who, at first with the tacit, afterwards with the express permission of the legislature, engaged, nominally in interpreting, really in extending the law, about the time of Cicero (De Legibus, § 1, 5), transferred to the edict of the praetor the activity which they had formerly displayed in developing the law of the Twelve Tables and the statutes of the Comitia. By these means, supplemented and confirmed by statute law and custom, the jus gentium gradually increased in importance, and gave the Roman empire its universal law.
Jus civile, i. e. jus civium or law peculiar to citizens, was the law of the Twelve Tables, augmented by subsequent legislation, by juristic interpretation, and by consuetudinary law. The institutions of jus civile may be exemplified by such titles to property as Mancipatio and In Jure Cessio, contracts by the form of Nexum and Sponsio, title to intestate succession by Agnatio or civil relationship; while corresponding institutions of jus gentium were the acquisition of property by Tradition, contract by Stipulation without the solemn term Spondeo, title to intestate succession by Cognatio or natural relationship. Other departments of life were not subject to parallel institutes of jus civile and jus gentium, but the mutual relations of citizens with citizens as well as of citizens with aliens were exclusively controlled by jus gentium: e. g. the informal contracts called Consensual, such as buying and selling, letting and hiring, partnership; and the informal contracts called Real, such as the contract of loan for use or loan for consumption.
Titles to ownership (jus in rem), according to jus gentium, which ultimately superseded civil titles, are explained at large in Book II.
In respect of Obligation (jus in personam), jus gentium may be divided into two classes, according to the degree in which it was recognized by Civil law:—
A. A portion of jus gentium was recognized as a ground of Action. To this class belong (1) the simple or Formless contracts to which we have alluded, (2) obligations to indemnify grounded on delict, (3) rights quasi ex contractu to recover property when it has been lost by one side and gained by the other without any right to retain it. Dig. 12, 6, 14 and Dig. 25, 2, 25. Actions founded on this obligation to restore (condictiones), although it was a species of naturalis obligatio, Dig. 12, 6, 15 pr., were as rigorous (stricti juris) as any in the Civil code. In these cases the obligatio, though naturalis as founded in jus gentium, yet, as actionable, was said to be civilis obligatio, not naturalis, Dig. 19, 5, 5, 1.Edition: current; Page: 
The two eminently Civil spheres of the law of obligation were (1) specialty or Formal contracts, and (2) penal suits. Yet even into these provinces jus gentium forced a partial entrance. We shall see that aliens could be parties to a Stipulatio or Verbal contract, though not by the Civil formulary, Spondeo 3 § 93; and to Transcriptio, at least of one kind, 3 § 133, which was a form of Literal contract; and could be made plaintiffs or defendants in penal suits by means of the employment of certain Fictions, 4 § 37. This, however, was rather the extension of jus civile to aliens than the intrusion of jus gentium into a Civil province.
B. Other rights and obligations of jus gentium were not admitted as direct grounds for maintaining an action, yet were otherwise noticed by the institutes of civil jurisprudence and indirectly enforced. Thus a merely naturalis obligatio, though not actionable, might (1) furnish a ground of an equitable defence (exceptio): for instance, on payment of a merely natural debt the receiver has a right of retention, and can bar the suit to recover it back as a payment made in error (condictio indebiti soluti) by pleading the naturalis obligatio, Dig. 12, 6, 64; or the defendant can meet a claim by Compensatio, 4 § 61, cross demand or set-off, of a debt that rests on merely naturalis obligatio, Dig. 40, 7, 20, 2: or a merely naturalis obligatio might (2) form the basis of an accessory obligation, such as Suretyship (fidejussio) 3 § 119 a, or Guaranty (constitutum) Dig. 13, 5, 1, 7, or Mortgage (pignus) Dig. 20, 1, 5 pr., or Novation, 3 § 176, Dig. 46, 2, 1, 1, all institutions, which are themselves direct grounds of action. Though these rights and obligations of natural law are imperfect (obligatio tantum naturalis) as not furnishing immediate grounds of action, yet, as being partially and indirectly enforced by Roman tribunals, they clearly compose a portion of Positive law. Cf. 3 §§ 88, 89 comm.
§ 3. Plebiscites as well as the enactments of the Comitia populi were called Leges, and were named after the tribunes by whom they were carried, as the leges proper (rarely called populiscita) were named after the consul, praetor or dictator by whom they were carried. Thus Lex Canuleia, Lex Aquilia, 3 § 210, Lex Atinia, Inst. 2, 6, 2, Lex Furia testamentaria, 2 § 225, were plebiscites named after tribunes, while the Lex Valeria Horatia was named after two consuls, the Lex Publilia and Lex Hortensia were named after dictators, the Lex Aurelia, 70 b. c., after a praetor. (As to the history of plebiscita and leges and of the other sources of Roman law cf. Historical Introduction and see Smith’s Dict. of Greek and Roman Antiquities, 3rd ed. s. v.)
§ 4. The legislative power of the senate was in the time of the republic a matter of controversy. It is certain that it had a power Edition: current; Page:  of issuing certain administrative decrees or instructions to magistrates that was hardly distinguishable from legislation. Under the emperors matters were changed. Legislation by the Comitia, though spoken of by Gaius in the present tense, had ceased to be a reality after the time of Tiberius, and the last recorded lex was passed in the reign of Nerva. As early as the time of Augustus the auctoritas of the senate began to be regarded as the essential process in making a law, and the subsequent rogatio of the Comitia as a mere formality, which was finally omitted. Senatusconsults, like laws, were sometimes named after the consuls who proposed them, though this is not in their case an official designation; they are sometimes even called leges: thus the measure which Gaius calls Sc. Claudianum, § 84, is subsequently referred to by him under the name of lex, § 157, 4 §§ 85, 86. Ulpian says, Non ambigitur senatum jus facere posse. Dig. 1, 3, 9. Of course, these senatusconsults were merely a disguised form of imperial constitution. The sovereignty had in fact passed from both patricians and plebeians to the hands of the princeps. A measure was recommended by the emperor in an oratio or epistola to the senate, and then proposed by the consul who convoked the senate, and voted by the senate without opposition. Hence a senatusconsult is sometimes called oratio, e. g. oratio divi Marci, Dig. 2, 12, 1 pr. Even this form was finally disused. No senatusconsult relating to matters of civil law occurs after the time of Septimius Severus.
§ 5. Although when Gaius wrote the emperor had not yet acquired the formal right of making statutes, his supreme executive power enabled him to give to his constitutions the same force as if they had been leges. The legal origin and character of the different forms of imperial constitution has been much controverted, and certainly varied at different periods.
Edicts were legislative ordinances issued by the emperor in virtue of the jurisdiction appertaining to him as highest magistrate, and were analogous to the edicts of the praetors and aediles. In the time of Gaius they had only binding force during the life of the emperor who issued them, requiring the confirmation of his successor for their continuing validity; but from the reign of Diocletian, when the empire assumed an autocratic form, their duration ceased to be thus limited.
Decreta were judicial decisions made by the emperor as the highest appellate tribunal: or in virtue of his magisterial jurisdiction, and analogous to the extraordinaria cognitio of the praetor.
Epistolae or rescripta were answers to inquiries addressed to the emperor by private parties or by judges. They may be regarded as Edition: current; Page:  interpretations of law by the emperor as the most authoritative juris peritus. Cf. § 94 comm.
Some examples of direct legal changes made by early emperors are recorded, as the right conferred by the edict of Claudius mentioned in § 32 c of this book.
The words of Gaius explaining why constitutions had the force of law seem to be imperfect, and may be supplemented from Justinian, who openly asserts for himself absolute authority: Sed et quod principi placuit legis habet vigorem: cum lege regia, quae de imperio ejus lata est, populus ei et in eum omne suum imperium et potestatem concessit, Inst. 1, 2, 6. The lex imperii, Cod. 6, 23, 6, was called in this and in the corresponding passage of the Digest (1, 4, 1) attributed to Ulpian, lex regia, in memory of the lex curiata, whereby the kings were invested with regal power. According to Cicero the king was proposed by the senate and elected by the Comitia Curiata, and the election was ratified in a second assembly presided over by the king: e. g. Numam Pompilium regem, patribus auctoribus, sibi ipse populus adscivit, qui ut huc venit, quanquam populus curiatis eum comitiis regem esse jusserat, tamen ipse de suo imperio curiatam legem tulit, De Republ. 2, 13. According to Mommsen and other modern writers, however, the later Roman idea, that the king was elected by the Comitia, is wrong, the lex curiata having been passed, not to elect a king, but merely to ratify a previous election or nomination. A lex curiata was also passed to confer on a Roman magistratus his imperium, and similarly the Roman emperor derived some of his powers from leges, but it seems a mistake to suppose that in the time of the principate a single lex gave him his entire authority. A fragment of a bronze tablet, on which was inscribed the lex investing Vespasian with sovereign powers, was discovered at Rome in the fourteenth century, and is still preserved in the Capitol.
§ 6. Huschke points out that the vacant space in the MS. before jus probably contained a definition of Edicta.
All the higher magistrates of Rome were accustomed to issue edicts or proclamations. Thus the consuls convoked the comitia, the army, the senate, by edict: the censors proclaimed the approaching census by edict: the aediles issued regulations for the market by edict: and magistrates with jurisdiction published edicts announcing the rules they would observe in the administration of justice, the Edicts of the Praetor urbanus, Praetor peregrinus, Aediles curules being called Edicta urbana, while the Edicts of the governors of provinces were called Edicta provincialia. These edicts, besides being orally proclaimed, were written on white tablets (in albo) and suspended in the forum: apud forum palam ubi de plano legi possit, Probus, ‘in the forum in an open space where persons Edition: current; Page:  standing on the ground may read.’ Such an edict was always published on entering on office (est enim tibi jam, cum magistratum inieris et in concionem adscenderis, edicendum quae sis observaturus in jure dicendo, Cic. De Fin. 2, 22), and was then called Edictum perpetuum, as opposed to occasional proclamations, Edictum repentinum. A clause (pars, caput, clausula, edictum) retained from a former edict was called Edictum tralaticium, Gellius, 3, 18; and though doubtless the edicts gradually changed according to changing emergencies, each succeeding praetor with very slight modifications substantially reproduced the edict of his predecessor. In the reign of Hadrian the jurist Salvius Julianus, called by Justinian Praetoriani edicti ordinator, reduced the edict to its definite form, and if the yearly publication was not discontinued (cf. § 6, jus edicendi habent), at all events Julian’s co-ordination of Praetorian law was embodied in all subsequent publications. Such was the origin of jus honorarium (praetorium, aedilicium), as opposed to jus civile: and from what has preceded, it need hardly be stated that the antithesis, jus civile, jus honorarium, is to a great extent coincident with the antithesis, jus civile, jus gentium.
It may be observed that Gaius does not attribute to edicts the force of a statute: and this theoretical inferiority of jus honorarium had a vast influence in modelling the forms and proceedings of Roman jurisprudence. The remedy or redress administered to a plaintiff who based his claim on jus civile differed from that administered on an appeal to jus honorarium, as we shall see when we come to treat of Bonitary ownership, Bonorum possessio, Actio utilis, in factum, ficticia. This difference of remedy preserved jus civile pure and uncontaminated, or at least distinguishable from jus honorarium; but this perpetuation of the memory of the various origins of the law, like the analogous distinction of Equity and Common law in English jurisprudence, was purchased by sacrificing simplicity of rule and uniformity of process.
The legislative power of the popular assembly and the absence of legislative power in the senate and praetor were marked by a difference of style in the lex and plebiscite, edict, and decree of the senate: while the lex and plebiscite employed the imperative (damnas esto, jus potestasque esto, &c.), the resolutions of the senate scrupulously avoid the imperative and are clothed in the forms placere, censere, arbitrari, &c., as if they were rather recommendations than commands: and the edicts and the interdicts of the praetor are couched in the subjunctive (Exhibeas, Restituas, &c.), a milder form of imperative. Or to show that their force and operation is limited to his own tenure of office, they are expressed in the first person (actionem dabo, ratum habebo, vim fieri veto). Where Edition: current; Page:  he has authority to command he shows it by using the imperative, as in addressing the litigants (mittite ambo hominem, inite viam, redite, 4 § 13 comm.) or the judge (judex esto, condemnato, absolvito). Ihering, § 47.
In the first period of the empire, that is, in the first three centuries of our era, it was the policy of the emperors to maintain a certain show of republican institutions, and the administration of the empire was nominally divided between the princeps or emperor and the people as represented by the senate. Thus, at Rome there were two sets of magistrates, the old republican magistrates with little real power, consuls, praetors, tribunes, quaestors, in outward form elected by the people; and the imperial nominees with much greater real authority, under the name of praefecti, the praefectus urbi, praefectus praetorio, praefectus vigilum, praefectus annonae, praefectus aerario; for though nominally the people and princeps had their separate treasuries under the name of aerarium and fiscus, yet the treasury of the people was not managed by quaestors as in the time of the republic, but by an official appointed by the emperor. Similarly the provinces were divided between the people and the prince, the people administering those which were peaceful and unwarlike, the prince those which required the presence of an army. The governor of a province, whether of the people or the emperor, was called Praeses Provinciae. The Praeses of a popular province was a Proconsul, and the chief subordinate functionaries were Legati, to whom was delegated the civil jurisdiction, and quaestors, who exercised a jurisdiction corresponding to that of the aediles in Rome. The emperor himself was in theory the Proconsul of an imperial province; but the actual governor, co-ordinate with the Proconsul of a senatorial province, was the Legatus Caesaris, while the financial administration and fiscal jurisdiction were committed to a functionary called Procurator Caesaris, instead of the republican Quaestor. Sometimes the same person united the office of Procurator and Legatus, as, for instance, Pontius Pilate.
§ 7. The opinions of a jurist had originally only the weight that was due to his knowledge and genius; but on the transfer of power from the hands of the people to those of the princeps, the latter recognized the expediency of being able to direct and inspire the oracles of jurisprudence; and accordingly Augustus converted the profession of jurist into a sort of public function, giving the decisions of certain authorized jurists the force of law, Pomponius in Dig. 1, 2, 49 (cf. Inst. 1, 2, 8). ‘Until Augustus, the public decision of legal questions was not a right conferred by imperial grant, but any one who relied on his knowledge advised the clients who chose to Edition: current; Page:  consult him. Nor were legal opinions always given in a letter closed and sealed, but were generally laid before the judge in the writing or by the attestation of one of the suitors. Augustus, in order to increase their weight, enacted that they should be clothed with his authority, and henceforth this office was sought for as a privilege.’ Those jurists who had the jus respondendi were called juris auctores. Their auctoritas resided, in the first instance, in their responsa, or the written opinions they gave when consulted on a single case, but in the second instance, doubtless, in their writings (sententiae et opiniones), which were mainly a compilation of their responsa, a fact which has left its traces in the disjointed and incoherent style which disagreeably characterizes Roman juristic literature. The jus respondendi instituted by Augustus and regulated by Tiberius, who themselves held the office of Pontifex Maximus, gave those to whom it belonged similar authority in interpreting law as had previously been exercised by the College of Pontifices—‘omnium tamen harum et interpretandi scientia et actiones apud Collegium Pontificum erant, ex quibus constituebatur, quis quoque anno praeesset privatis’ (Pomponius in Dig. 1, 2, 6; cf. Sohm, § 18).
As to the mode of collecting the opinions of the juris auctores no precise information has come down to us, but § 6 shows that the duty of the judex, in the not uncommon event of the authorities differing in their opinions on a case, was open to doubt, till Hadrian’s rescript allowed him under these circumstances to adopt the opinion he preferred. It may be gathered from the words ‘quorum omnium’ that all authorized jurists had to be consulted. The jus respondendi, as thus explained, may have continued in existence till the end of the third century, by which time the originative force of Roman jurisprudence had ceased. Instead of giving independent opinions jurists had become officials of the emperor, advising him in drawing rescripts and other affairs of imperial government. Legal authority rested in the writings of deceased juris auctores. (For a discussion of the causes of the decline of Roman Jurisprudence see Grueber’s Art. in Law Quarterly Review, vii. 70.) In the course of centuries the accumulation of juristic writings of co-ordinate authority was a serious embarrassment to the tribunals. To remedy this evil, a. d. 426, Valentinian III enacted what is called the law of citations, Cod. Theodosianus, 1, 4, 3, limiting legal authority to the opinions of five jurists, Gaius, Papinian, Ulpian, Paulus, Modestinus, and of any other jurists whom these writers quoted, provided that such quotations should be verified by reference to the original writings of these jurists (codicum collatione firmentur—on the question of the way of interpreting these words cf. Sohm, p. 122, n. 1, § 21). In case Edition: current; Page:  of a divergence of opinion, the authorities were to be counted, and the majority was to prevail. In case of an equal division of authorities, the voice of Papinian was to prevail. a. d. 533, Justinian published his Digest or Pandects, a compilation of extracts from the writings of the jurists, to which, subject to such modifications as his commissioners had made in them, he gives legislative authority. Every extract, accordingly, is called a lex, and the remainder of the writings of the jurists is pronounced to be absolutely void of authority. To prevent the recurrence of the evil which his codification was intended to remove, and confident in the lucidity and adequacy of his Digest and Code, which latter is a compilation of imperial statute law after the model of the Theodosian code, Justinian prohibits for the future the composition of any juristic treatise or commentary on the laws. If any one should disregard the prohibition, the books are to be destroyed and the author punished as guilty of forgery (falsitas), Cod. 1, 17, 2, 21. The constitutions enacted by Justinian subsequent to the publication of his code are called Novellae, Constitutiones or Novels.
We shall find frequent allusions, as we proceed in this treatise, to the existence of rival schools among the Roman juris auctores. This divergence of the schools dates from the first elevation of the jurist to a species of public functionary, namely, from the reign of Augustus, in whose time, as we have seen, certain jurists began to be invested by imperial diploma with a public authority. In his reign the rival oracles were M. Antistius Labeo and C. Ateius Capito: Hi duo primum veluti diversas sectas fecerunt, Dig. 1, 2, 47. ‘The first founders of the two opposing sects.’ From Labeo’s works there are 61 extracts in the Digest, and Labeo is cited as an authority in the extracts from other jurists oftener than any one else except Salvius Julianus. From Sempronius Proculus, a disciple of Labeo, and of whom 37 fragments are preserved in the Digest, the school derived its name of Proculiani. Other noted jurists of this school were Pegasus, in the time of Vespasian; Celsus, in the time of Domitian, who gave rise to the proverb, responsio Celsina, a discourteous answer, and of whom 141 fragments are preserved; and Neratius, of whom 63 fragments are preserved. To the other school belonged Masurius Sabinus, who flourished under Tiberius and Nero, and from whom the sect were called Sabiniani. To the same school belonged Caius Cassius Longinus, who flourished under Nero and Vespasian, and from whom the sect are sometimes called Cassiani: Javolenus Priscus, of whom 206 fragments are preserved: Salvius Julianus, the famous Julian, above mentioned, of whom 456 fragments are preserved: Pomponius, of whom 578 fragments are preserved: Sextus Caecilius Africanus, celebrated for his obscurity, so that Africani lex in the language of lawyers meant lex Edition: current; Page:  difficilis, of whom 131 fragments are preserved: and, lastly, our author, Gaius, who flourished under Hadrian, Antoninus Pius, and Marcus Aurelius, and from whose writings 535 extracts are to be found in the Digest.
If we now inquire whether this divergence of schools was based on any difference of principle, the answer is, No: on none, at least, that modern commentators have succeeded in discovering: it was merely a difference on a multitude of isolated points of detail. We are told indeed that the founders were men of dissimilar characters and intellectual dispositions: that Labeo was characterized by boldness of logic and a spirit of innovation; while Capito rested on tradition and authority, and inclined to conservatism, Dig. 1, 2, 47; but it is altogether impossible to trace their opposing tendencies in the writings of their successors: and we must suppose that the intellectual impulse given by Labeo was communicated to the followers of both schools of jurisprudence. But though, as we have stated, no difference of principle was involved, each school was accustomed to follow its leaders or teachers (praeceptores) with much servility; and it is quite an exception to find, on a certain question, Cassius, a member of the Sabinian school, following the opinion of Labeo; while Proculus, who gave his name to Labeo’s school, preferred the opinion of Ofilius, the teacher of Capito, 3 § 140; Gaius too, who was a Sabinian, sometimes inclines to the opinion of the rival school; cf. 3, § 98. Controversies between the two schools are referred to by Gaius in the following passages of his Institutes: 1, 196; 2, 15, 37, 79, 123, 195, 200, 216-222, 231, 244; 3, 87, 98, 103, 141, 167-8, 177-8; 4, 78-9, 114, 170.
As long as these schools of law, which may have derived their constitution from the Greek schools of philosophy, existed, the office of President appears to have devolved by succession from one jurist to another. (For an account of this subject and references to the chief modern writers who have discussed it see Sohm, pp. 98, &c.)
We may briefly mention some of the most illustrious jurists who flourished somewhat later than Gaius. Aemilius Papinianus, who was probably a Syrian, lived in the time of Septimius Severus, and was murdered by the order of Caracalla: 601 extracts from his writings are contained in the Digest. It was perhaps to some extent due to the transcendent genius, or at least to the extraordinary reputation, of Papinian, which made him seem too great to be reckoned any man’s follower, that we cease about his time to hear of opposing schools of jurisprudence. Papinian appears to have accompanied Severus to York, fulfilling the important function of praefectus praetorio, so that England may claim some slight connexion with the brightest luminary of Roman law.Edition: current; Page: 
A disciple and colleague of Papinian, of Syrian origin, who likewise became praefectus praetorio, was Domitius Ulpianus, murdered by the praetorian soldiery, whose domination he resisted, in the presence of the Emperor Alexander Severus: 2464 fragments, composing about a third of the whole Digest, are taken from his writings. An epitome of his Liber Singularis Regularum is still extant in a manuscript of the Vatican Library, and is the work referred to when, without mentioning the Digest, we cite the authority of Ulpian.
Another disciple and colleague of Papinian was Julius Paulus, of whose writings 2081 fragments are preserved in the Digest, forming about a sixth of its mass. An epitome of his treatise called Sententiae Receptae is found, with the Epitome of Gaius, in the code of Alaric II, king of the Visigoths; and it is to this book that we refer when we simply cite the authority of Paulus.
A disciple of Ulpian’s was Herennius Modestinus, of whom 344 extracts are contained in the Digest. After Modestinus the lustre of Roman jurisprudence began to decline. (For a detailed account of the Roman jurists, see Roby’s Introduction to the Digest, chs. vi-xvi.)
Besides the sources of law enumerated by Gaius, the Institutes of Justinian (1, 2, 9 and 10) mention Custom or Usage, the source of consuetudinary or customary law (jus non scriptum, consensu receptum, moribus introductum). To this branch of law are referred, with other rules, the invalidity of donations between husband and wife, Dig. 24, 1, 1, the power of a paterfamilias to make a will for his filiusfamilias who dies before the age of puberty (pupillaris substitutio), Dig. 28, 6, 2 pr., and universal succession in Coemption and Adrogation, 3 § 82. See also 4 §§ 26, 27. We may suppose that Customary law, like Roman law in general, would fall into two divisions, jus civile and jus gentium, the former embracing what Roman writers sometimes speak of as mores majorum. Before the time of Gaius, however, most of Customary law must have been incorporated by statute, as in early times by the law of the Twelve Tables, or taken up into the edict of the praetor or the writings of the jurists, Cic. De Invent. 2, 22, 67; i.e. unwritten law must have changed its character and have been transformed into written law.
§ 8. Omne autem ius quo utimur uel ad personas pertinet uel ad res uel ad actiones. et prius uideamus de personis. Inst. 1, 2, 12: Gaius in Dig. 1, 5, 1.
§ 8. The whole of the law by which we are governed relates either to persons, or to things, or to actions; and let us first examine the law of persons.
§ 8. What are the leading divisions of law—what are the main Edition: current; Page:  masses into which legislation naturally breaks itself—what are the joints and articulations which separate the whole code into various subordinate codes, like the different limbs and members of an organic whole—what is the import of the Gaian division, adopted perhaps from previous writers, into jus personarum, jus rerum, jus actionum, or rather, to adhere to the classical phrases, jus ad personas pertinens, jus ad res pertinens, jus ad actiones pertinens?
By jus ad actiones pertinens, to begin with the easier part of the problem, there is no doubt that the inventor of the division intended to designate the law of PROCEDURE as opposed to the law of rights; the adjective code, to use Bentham’s phraseology, as opposed to the substantive code. There is as little doubt that in the Institutions of Gaius this design is not executed with precision, and that, instead of the law of procedure, the last portion of his treatise contains also to some extent the law of sanctioning rights, as opposed to the law of primary rights. (For the meaning of this distinction see Austin’s Jurisprudence, bk. 1.) Or perhaps we should say that the legislative provisions respecting Procedure have a double aspect: a purely formal aspect, so far as they give regularity and method to the enforcement of sanctioning rights; and a material aspect, so far as certain stages of procedure (e.g. litis contestatio and res judicata) operate like Dispositions or any other Titles to modify the substantive rights of the contending parties. Procedure, then, is treated of in these Institutions partly indeed in its formal character, but still more in its material character, i.e. so far as its incidents can be regarded as belonging to the substantive code.
It is more difficult to determine the principle of the other division, the relation of the law of Persons to the law of Things. They both deal with the rights and duties of persons in the ordinary modern acceptation of the word; why then, we may inquire, are certain rights and duties of persons separated from the rest and dealt with under the distinguishing category of jura personarum? It is not enough to say with Austin that the law of Things is the universal or general portion of the law, the law of Persons a particular and exceptional branch; that it is treated separately on account of no essential or characteristic difference, but merely because it is commodious to treat separately what is special and exceptional from what is general and universal. This answer furnishes no positive character of the law of Persons, but only the negative character of anomaly, i.e. of unlikeness to the larger portion of the law; but it would be difficult to show that the law of Persons is more exceptional, anomalous, eccentric, than the Civil dispositions as opposed to the Natural dispositions of the law of Things.
We must look to the details of the law of Persons, and observe Edition: current; Page:  whether its dispositions have any common character as contrasted with the dispositions of the law of Things. The law of Persons, in other words, the law of Status, classifies men as slaves and free, as citizens (privileged) and aliens (unprivileged), as paterfamilias (superior) and filiusfamilias (dependent). The law of Things looks at men as playing the parts of contractors or of neighbouring proprietors; in other words, the law of Persons considers men as UNEQUALS, the law of Things considers them as EQUALS: the one may be defined as the law of relations of inequality, the other as the law of relations of equality.
It may induce us to believe that the law of unequal relations and the law of equal relations is a fundamental division of the general code, if we consider how essential are the ideas of equality and inequality to the fundamental conception of law. If we ventured on a Platonic myth, we might say that Zeus, wishing to confer the greatest possible gift on the human race, took the most opposite and uncombinable things in the universe, Equality and Inequality, and, welding them together indissolubly, called the product by the name of political society or positive law.
The assumption will hardly be controverted, that in the relations of subject to subject, Positive law, like Ethical law, recognizes, as an ideal at least, the identity of the just (lawful) with the equal. Inequality, however, is no less essentially involved in positive law. We have seen that there is no right and no duty by positive law without a legislator and sovereign to whom the person owing the duty is in subjection. On the one side weakness, on the other irresistible power. Positive rights and duties, then, imply both the relation of subject to subject and the relation of subject to sovereign or wielder of the sanction, in other words, both the relation of equal to equal and the relation of unequal to unequal. It is the more surprising that Austin should apparently have failed to seize with precision this conception of the law of Persons, as he makes the remark, in which the whole truth seems implicitly contained, that the bulk of the law of Persons composes the Public, Political, or Constitutional code (jus publicum). Political society or government essentially implies subordination. It implies, on the one hand, sovereign power reposing in various legislative bodies, distributed, delegated, and vested in various corporations, magistrates, judges, and other functionaries; on the other hand, private persons or subjects subordinate to the sovereign power and to its delegates and ministers. The different forms of government are so many forms of subordination, so many relations of superior and inferior, that is, so many relations of unequals. Public law, then, is a law of Status, and the law of Persons or law of Status in the private code is the Edition: current; Page:  intrusion of a portion of the public code into the private code; or, in barbarous and semi-civilized legislations, the disfigurement of private law by the introduction of relations that properly belong to public law. For instance, the most salient institution of the ancient Roman law of Persons, the power of life and death over wife and child that vested in the father of the household, was the concession to a subject of an attribute that properly belongs to the sovereign or a public functionary. Another institution, slavery, placed one subject over another in the position of despotic sovereign. The relation of civis to peregrinus may be conjectured to have originally been that of patronus to cliens, that is to say, of political superior to political inferior.
Government or positive law has usually commenced in the invasion by the stronger of the (moral) rights of the weaker; but so necessary is inequality to equality, or subordination to co-ordination, that the (moral) crimes of ancient conquerors are regarded with less aversion by philosophic historians, as being the indispensable antecedents of subsequent civilization. The beginnings, then, of positive law have been universally the less legitimate form of inequality, inequality between subject and subject, leaving its traces in dispositions of the civil code: but the advance of civilization is the gradual elimination of inequality from the law, until little remains but that between magistrate and private person, or sovereign and subject. Modern society has advanced so far on the path of equalization, in the recognition of all men as equal before the law, that the distinctions of status, as they existed in the Roman law of persons, are almost obliterated from the private code. Slavery has vanished; parental and marital power are of the mildest form; civilized countries accord the same rights to cives and peregrini; guardians (tutores) in modern jurisprudence, as in the later period of Roman law, are considered as discharging a public function, and accordingly the relation of guardian and ward may be regarded as a portion of the public code.
Before we terminate our general remarks on the nature of status, it is necessary to distinguish from the law of Persons a department of law with which, in consequence of a verbal ambiguity, it is sometimes confounded. Blackstone deserves credit for having recognized Public law as part of the law of Persons; but he also included under the law of Persons that department of primary rights to which belong the right of free locomotion, the right of using the bodily organs, the right to health, the right to reputation, and other rights which perhaps more commonly emerge in the redress meted out for their violation, that is, in the corresponding sanctioning rights, the right of redress for bodily violence, for false imprisonment, for bodily Edition: current; Page:  injury, for defamation, and the like. These, however, are not the special and exceptional rights of certain eminently privileged classes, but the ordinary rights of all the community, at least of all who live under the protection of the law; they belong to filiusfamilias as well as to paterfamilias, to peregrinus and latinus as well as to civis. The rights in question, that is to say, do not belong to the law of unequal rights, or the law of Persons, but to the law of equal rights, or the law of Things.
The anomalous institution of slavery, however, furnishes a ground for controverting this arrangement; for, as by this legalized iniquity of ancient law, the slave, living as he did, not so much under the protection as under the oppression of the law, was denuded of all legal rights, including those of which we speak, we cannot say that these rights belong to servus as well as to liber. The same, however, may be said of contract rights and rights of ownership, for the slave had neither part nor lot in these on his own account any more than in the right of a man to the use of his own limbs. In defining, therefore, jura rerum to be the equal rights of all, we must be understood to mean, of all who have any rights. Perhaps, indeed, instead of saying that jura rerum are the rights of men regarded as equal, it would be more exact to say, that while jus personarum regards exclusively the unequal capacities, that is, the unequal rights of persons, jus rerum treats of rights irrespectively both of the equality and the inequality of the persons in whom they are vested, leaving their equal or unequal distribution to be determined by jus personarum.
In order to mark the natural position of these rights in the civil code, I have avoided designating them, with Blackstone, by the name of Personal rights, a term which I am precluded from using by yet another reason. I have employed the terms Personal right and Real right to mark the antithesis of rights against a single debtor and rights against the universe. Now the rights in question are rights that imply a negative obligation incumbent on all the world, that is to say, in our sense of the words they are not Personal, but Real.
As contrasted with Acquired rights (Erworbene Rechte, jus quaesitum) they are called Birthrights or PRIMORDIAL rights (Urrechte), names which are open to objection, as they may seem to imply a superior dignity of these rights, or an independence, in contrast with other rights, of positive legislation, characters which the name is not intended to connote. For purposes of classification this branch of primary rights is of minor importance. Unlike Status, Dominion, Obligation, Primordial rights are not the ground of any primary division of the code. The actions founded on the Edition: current; Page:  infraction of Primordial rights partly belong to the civil code of obligation arising from Tort (e.g. actio injuriarum), partly and principally to the criminal code. (On the different interpretations which have been put on this threefold division of Private Law cf. Moyle’s Introduction to the Inst. Just.)
§ 9. Et quidem summa diuisio de iure personarum haec est quod omnes homines aut liberi sunt aut serui.
§ 10. Rursus liberorum hominum alii ingenui sunt, alii libertini.
§ 11. Ingenui sunt qui liberi nati sunt; libertini qui ex iusta seruitute manumissi sunt.
§ 12. Rursus libertinorum 〈tria sunt genera; nam aut ciues Romani aut Latini aut dediticiorum〉 numero sunt. de quibus singulis dispiciamus; ac prius de dediticiis.
§ 9. The first division of men by the law of persons is into freemen and slaves.
§ 10. Freemen are divided into freeborn and freedmen.
§ 11. The freeborn are free by birth; freedmen by manumission from legal slavery.
§ 12. Freedmen, again, are divided into three classes, citizens of Rome, Latins, and persons on the footing of enemies surrendered at discretion. Let us examine each class in order, and commence with freedmen assimilated to enemies surrendered at discretion.
§ 12. As Gaius has not marked very strongly the divisions of the present book, it may be worth while to consider what are the leading branches of the doctrine of Status. Status falls under three heads—liberty (libertas), citizenship (civitas), and domestic position (familia).
Under the first head, men are divided into free (liberi) and slaves (servi): the free, again, are either free by birth (ingenui) or by manumission (libertini). We have here, then, three classes to consider: ingenui, libertini, servi.
Under the second head men were originally divided into citizens (cives) and aliens (peregrini). The rights of citizens fall into two branches, political and civil, the former being electoral and legislative power (jus suffragii) and capacity for office (jus honorum); the latter relating to property (commercium) or to marriage (connubium). Aliens were of course devoid of the political portion of these rights (suffragium and honores); they were also devoid of proprietary and family rights as limited and protected by the jus civile (commercium and connubium), though they enjoyed corresponding rights under the jus gentium. At a subsequent period a third class were intercalated between cives and peregrini, namely, Latini, devoid of the political portion of the rights of citizenship, and Edition: current; Page:  enjoying only a portion of the private rights of citizenship, commercium without connubium. Here also, then, we have three classes, cives, Latini, peregrini.
The powers of the head of a family came to be distinguished by the terms potestas, manus, mancipium: potestas, however, was either potestas dominica, power over his slaves, or potestas patria, power over his children, which, at the period when Roman law is known to us, were different in kind; so that the rights of paterfamilias were really fourfold. Manus or marital power placed the wife on the footing of filiafamilias, which was the same as that of filiusfamilias. Paterfamilias had a legal power of selling (mancipare) his children into bondage; and mancipium, which is also a word used to denote a slave, designated the status of a filiusfamilias who had been sold by his parent as a bondsman to another paterfamilias. In respect of his purchaser, such a bondsman was assimilated to a slave: in respect of the rest of the world, he was free and a citizen, though probably his political capacities were suspended as long as his bondage (mancipii causa) lasted, § 116*. As slaves are treated of under the head of libertas, and the status of the wife (manus) was not legally distinguishable from that of the son, we may say, that in respect of domestic dependence or independence (familia), as well as in respect of libertas and civitas, men are divided into three classes,—paterfamilias, filiusfamilias, and Qui in mancipio est; paterfamilias alone being independent (sui juris), the other two being dependent (alieni juris) in unequal degrees.
These different classes are not examined by Gaius with equal minuteness. Under the first head he principally examines the libertini: the classes under the second head, cives, Latini, peregrini, are only noticed indirectly, i. e. so far as they present a type for the classification of libertini; and the bulk of the first book of the Institutions is devoted to domestic relations.
In modern jurisprudence, Status having disappeared, the law of domestic relations—the relation of husband to wife, parent to child, guardian to ward—constitutes the whole of that of which formerly it was only a part, the law of Persons. It differs from the rest of the civil code in that, while the relations of Property and Obligation are artificial and accidental, the relations governed by the code of the Family are natural, and essential to the existence of the human race: so much so that the principal relations of the family extend to the rest of the animal world, and the portion of the code relating to them is called by Ulpian pre-eminently jus Naturale, Dig. 1, 1, 3, Inst. 1, 2 pr. Secondly, whereas every feature of Property and Obligation is the creation of political law, Domestic life is only partially governed by political law, which leaves the greater portion Edition: current; Page:  of its rights and duties to be ruled by the less tangible dictates of the moral law.
The pure law of the Family, that is, when we exclude all consideration of Property and Obligation relating to property, is of very moderate compass: but with the pure code of the family it is convenient to aggregate what we may call with Savigny, Syst. § 57, the applied code of the Family, i.e. such of the laws of Property and Obligation as concern members of the family group—husband and wife, parent and child, guardian and ward. The main divisions then of the substantive code are Family law Pure and Applied; the law of Ownership; and the law of Obligation. If, in view of its importance, we separate from the law of Ownership the law of Rerum Universitates, confining the law of Ownership to the province of Res singulae, we may add to the three we have enumerated a fourth division, the law of Successions per universitatem. Sohm, § 29.
§ 13. Lege itaque Aelia Sentia cauetur ut qui serui a dominis poenae nomine uincti sint, quibusue stigmata inscripta sint, deue quibus ob noxam quaestio tormentis habita sit et in ea noxa fuisse conuicti sint, quiue ut ferro aut cum bestiis depugnarent traditi sint, inue ludum custodiamue coniectifuerint, et postea uel ab eodem domino uel ab alio manumissi, eiusdem condicionis liberi fiant, cuius condicionis sunt peregrini dediticii.
§ 14. Vocantur autem peregrini dediticii hi qui quondam aduersus populum Romanum armis susceptis pugnauerunt, deinde uicti se dediderunt.
§ 15. Huius ergo turpitudinis seruos quocumque modo et cuiuscumque aetatis manumissos, etsi pleno iure dominorum fuerint, numquam aut ciues Romanos aut Latinos fieri dicemus, sed omni modo dediticiorum numero constitui intellegemus.
§ 16. Si uero in nulla tali turpitudine sit seruus, manumissum modo ciuem Romanum modo Latinum fieri dicemus.
§ 17. Nam in cuius persona tria haec concurrunt, ut maior sit annorum triginta, et ex iure Quiritum domini, et iusta ac legitima manumissione liberetur, id est uindicta aut censu aut testamento, is ciuis Romanus fit; sin uero aliquid eorum deerit, Latinus erit.
§ 18. Quod autem de aetate serui requiritur, lege Aelia Sentia introductum est. nam ea lex minores xxx annorum seruos non aliter uoluit manumissos ciues Romanos fieri, quam si uindicta, apud consilium iusta causa manumissionis adprobata, liberati fuerint.
§ 19. Iusta autem causa manumissionis est ueluti si quis filium filiamue aut fratrem sororemue naturalem, aut alumnum, aut paedagogum, aut seruum procuratoris habendi gratia, aut ancillam matrimonii causa, apud consilium manumittat.
§ 20. Consilium autem adhibetur in urbe Roma quidem quinque senatorum et quinque equitum Romanorum puberum; in prouinciis autem uiginti recuperatorum ciuium Romanorum, idque fit ultimo die conuentus; sed Romae certis diebus apud consilium manumittuntur. maiores uero triginta annorum serui semper manumitti solent, adeo ut uel in transitu manumittantur, ueluti cum praetor aut pro consule in balneum uel in theatrum eat.
§ 21. Praeterea minor triginta annorum seruus [manumissus] potest ciuis Romanus fieri, si ab eo domino qui soluendo non erat, testamento eum liberum et heredem relictum ——— (24 uersus in C legi nequeunt) Ulp. 1, 14; Inst. 1, 6, 1; Epit. 1, 1, 2.
§ 22. — homines Latini Iuniani appellantur; Latini ideo, quia adsimulati sunt Latinis coloniariis; Iuniani ideo, quia per legem Iuniam libertatem acceperunt, cum olim serui uiderentur esse.
§ 23. Non tamen illis permittit lex Iunia uel ipsis testamentum facere, uel ex testamento alieno capere, uel tutores testamento dari.
Ulp. 20, 14.
§ 24. Quod autem diximus ex testamento eos capere non posse, ita intellegemus, ne quid directo hereditatis legatorumue nomine eos posse capere dicamus: alioquin per fideicommissum capere possunt.
§ 25. Hi uero qui dediticiorum numero sunt nullo modo ex testamento capere possunt, non magis quam quilibet peregrinus, nec ipsi testamentum facere possunt secundum id quod magis placuit.
§ 26. Pessima itaque libertas eorum est qui dediticiorum numero sunt; nec ulla lege aut senatusconsulto aut constitutione principali aditus illis ad ciuitatem Romanam datur.
§ 27. Quin etiam in urbe Roma uel intra centesimum urbis Romae miliarium morari prohibentur; et si qui contra ea fecerint, ipsi bonaque eorum publice uenire iubentur ea condicione, ut ne in urbe Roma uel intra centesimum urbis Romae miliarium seruiant neue umquam manumittantur; et si manumissi fuerint, serui populi Romani esse iubentur. et haec ita lege Aelia Sentia conprehensa sunt.
§ 13. The law Aelia Sentia enacts that slaves who have been punished by their proprietors with chains, or have been branded, or have been examined with torture on a criminal charge, and have been convicted, or have been delivered to fight with men or beasts, or have been committed to a gladiatorial school or a public prison, if subsequently manumitted by the same or by another proprietor, shall acquire by manumission the status of enemies surrendered at discretion.
§ 14. Surrendered enemies are people who have taken up arms and fought against the people of Rome and having been defeated have surrendered.
§ 15. Slaves tainted with this degree of criminality, by whatever mode they are manumitted and at whatever age, and notwithstanding the plenary dominion of their proprietor, never become Edition: current; Page:  citizens of Rome or Latins, but can only acquire the status of enemies who have surrendered.
§ 16. If the slave has not committed offences of so deep a dye, manumission sometimes makes him a citizen of Rome, sometimes a Latin.
§ 17. A slave in whose person these three conditions are united, thirty years of age, quiritary ownership of the manumitter, liberation by a civil and statutory mode of manumission, i. e. by the form of vindicta, by entry on the censor’s register, by testamentary disposition, becomes a citizen of Rome: a slave who fails to satisfy any one of these conditions becomes only a Latin.
§ 18. The requisition of a certain age of the slave was introduced by the lex Aelia Sentia, by the terms of which law, unless he is thirty years old, a slave cannot on manumission become a citizen of Rome, unless the mode of manumission is by the form of vindicta, preceded by proof of adequate motive before the council.
§ 19. There is an adequate motive of manumission if, for instance, a natural child or natural brother or sister or foster child of the manumitter’s, or a teacher of the manumitter’s child, or a male slave intended to be employed as an agent in business, or a female slave about to become the manumitter’s wife, is presented to the council for manumission.
§ 20. The council is composed in the city of Rome of five senators Edition: current; Page:  and five Roman knights above the age of puberty: in the provinces of twenty recuperators, who must be Roman citizens, and who hold their session on the last day of the assize. At Rome the council holds its session on certain days appointed for the purpose. A slave above the age of thirty can be manumitted at any time, and even in the streets, when the praetor or pro-consul is on his way to the bath or theatre.
§ 21. Under the age of thirty a slave becomes by manumission a citizen of Rome, when his owner being insolvent leaves a will, in which he gives him his freedom and institutes him his heir (2 § 154), provided that no other heir accepts the succession.
§ 22. Slaves manumitted in writing, or in the presence of witnesses, or at a banquet, are called Latini Juniani: Latini because they are assimilated in status to Latin colonists (§ 131), Juniani because they owe their freedom to the lex Junia, before whose enactment they were slaves in the eye of the law.
§ 23. These freedmen, however, are not permitted by the lex Junia either to make a will or to take under the will of another, or to be appointed testamentary guardians.
§ 24. Their incapacity to take under a will must only be understood as an incapacity to take directly as heirs or legatees, not to take indirectly as beneficiaries of a trust.
§ 25. Freedmen classed with Edition: current; Page:  surrendered enemies are incapable of taking under a will in any form, as are other aliens, and are incompetent to make a will according to the prevalent opinion.
§ 26. It is only the lowest grade of freedom, then, that is enjoyed by freedmen assimilated to surrendered aliens, nor does any statute, senatusconsult, or constitution open to them a way of obtaining. Roman citizenship.
§ 27. Further, they are forbidden to reside in the city of Rome or within the hundredth milestone from it; and if they disobey the prohibition, their persons and goods are directed to be sold on the condition that they shall be held in servitude beyond the hundredth milestone from the city, and shall be incapable of subsequent manumission, and, if manumitted, shall be the slaves of the Roman people: and these provisions are dispositions of the lex Aelia Sentia.
§ 14. Peregrini dediticii. Cf. Livy 1, 38; Theoph. 1, 5, 3.
§ 15. Pleno jure. Cf. § 54 and 2 § 41.
§ 17. The earliest forms of manumission depended on the fiction that the slave is a freeman. They therefore carry us back to a time when manumission was not legally recognized. Cf. Sohm, p. 174, n. 4, and p. 58, n. 4. Manumission was either a public or a private act. When manumission, besides freeing a slave from the dominion of his proprietor, converted him into a citizen of Rome, it was not a matter of merely private interest to be accomplished by the sole volition of the proprietor. Accordingly, the three modes of manumission which conferred Roman citizenship on the manumitted slave, vindicta, censu, testamento, involved in different forms the intervention of the State.
In manumission by Vindicta the State was represented by the praetor. The vindicta or festuca was a rod or staff, representing a lance, the symbol of dominion, with which the parties in a real action (vindicatio) touched the subject of litigation as they solemnly Edition: current; Page:  pronounced their claim, 4 § 16. Accordingly it was used in a suit respecting freedom (liberalis causa), for this, as status is a real right (jus in rem), was a form of real action, and was sometimes prosecuted by way of genuine litigation, sometimes was merely a solemn grant of liberty, that is, a species of alienation by surrender in the presence of the magistrate (in jure cessio). In a liberalis causa the slave to be manumitted, being the subject of the fictitious litigation, could not himself be a party, but was advocated by a vindex or adsertor libertatis, who in later times was usually represented by the praetor’s lictor. The adsertor grasping the slave with one of his hands, and touching him with the vindicta, asserted his freedom. The proprietor quitting his grasp of the slave (manu mittens) and confessing by silence or express declaration the justice of the claim, the magistrate pronounced the slave to be free. This procedure, which came to be much curtailed, belonging to the praetor’s voluntary, not his contentious, jurisdiction, did not require the praetor to be seated on his elevated platform in the comitium (pro tribunali), but might be transacted by him on the level ground (de plano); and as the mere presence of the praetor constituted a court (jus), he was usually seized upon for the purpose of manumissions as he was preparing to take a drive (gestatio), or to bathe, or to go to the theatre, § 20 (for the different accounts given of this mode of manumission see Roby, Private Law, 1, p. 26, n. 1).
In manumission by the Census the interests of the State were represented by the censor. Censu manumittebantur olim qui lustrali censu Romae jussu dominorum inter cives Romanos censum profitebantur, Ulpian, 1, 8. ‘Registry by the censor was an ancient mode of manumission by the quinquennial census at Rome when a slave at his master’s order declared his right to make his return of property (professio) on the register of Roman citizens.’ Ex jure civili potest esse contentio, quum quaeritur, is qui domini voluntate census sit, continuone an ubi lustrum conditum liber sit, Cic. De Orat. 1, 40. ‘It is a question of civil law, when a slave is registered with his owner’s sanction, whether his freedom dates from the actual inscription on the register or from the close of the censorial period.’ The census was a republican institution, which had been long obsolete when Gaius wrote. Ulpian, l. c., speaks of it as a thing of the past. Since the Christian era only three had been held, the last under Vespasian, a. d. 74.
Wills were originally executed at the Comitia calata, 2 § 101, where the dispositions of the testator, including his donations of freedom, received legislative sanction, being converted into a private law by the ratification of the sovereign assembly. When a new Edition: current; Page:  form of will was introduced, 2 § 102, testators retained their power of manumission, although the people here at the utmost were only symbolically represented by the witnesses of a mancipation. Bequests of liberty were either direct or indirect. A direct bequest of liberty (directo data libertas) made the manumitted slave a freedman of the testator (libertus orcinus, Inst. 2, 24, 2): an indirect bequest, that is, a request to the heir to manumit the slave (fideicommissaria libertas), made the slave on manumission a freedman of the heir, 2 § 266.
§ 18. The lex Aelia Sentia passed in the reign of Augustus, a. d. 4, and named after the consuls Sextus Aelius Catus and Caius Sentius Saturninus, was intended to throw obstacles in the way of acquiring Roman citizenship (Sueton. Aug. 40). One of its enactments provided that a slave under the age of thirty could not be made a citizen unless manumitted by vindicta, after proof of adequate motive before a certain judicial board. We may inquire what would be the effect of manumission if the causae probatio were omitted. Inscription on the censor’s register, if in use, would probably have been null and void, as this ceremony was either a mode of making a Roman citizen or it was nothing. Testamentary manumission, as we learn from Ulpian, 1, 12, left the man legally a slave, but gave him actual liberty (possessio libertatis, in libertate esse, as opposed to libertas), a condition recognized and protected by the praetor. Manumission by vindicta left him still a slave (according to the MS. of Ulpian, ib. the slave of Caesar). Either the lex Aelia Sentia or lex Junia, it is uncertain which (cf. §§ 29, 31; Ulpian, l. c.), apparently provided that, in the absence of causae probatio, the minor triginta annis manumissus should belong to the new class which it introduced, namely, the Latini.
§ 19. Alumnus denotes a slave child reared by the manumitter, as appears from the following passage: Alumnos magis mulieribus conveniens est manumittere, sed et in viris receptum est, satisque est permitti eum manumitti in quo nutriendo propensiorem animum fecerint, Dig. 40, 2, 14 pr. ‘Foster children are more naturally manumitted by women than by men, though not exclusively; and it suffices to allow the manumission of a child who has won his master’s affection in the course of his education.’ (For the custom derived from Greece of employing slaves as paedagogi in Roman households see Smith’s Dict. of Greek and Roman Antiq. s. v.)
§ 20. The Equites Romani, who at Rome composed a moiety of the council mentioned in the text, were either Equites or Equites equo publico (for the title eques Romanus equo publico, which appears in inscriptions, see Wilmann’s Index Inscriptionum, 2178, 2182; cf. Greenidge, Infamia, p. 88). Eques was such merely by his census: Edition: current; Page:  Eques equo publico was a youth nominated by the emperor to the turmae equitum; not, however, intended for actual service with the legions, but merely marked out as an expectant of future employment in higher public functions, military or civil. The title of Princeps juventutis, often conferred by the emperors on their successors designate, denoted the leader of the Equites equo publico. This distinction of classes among Equites lasted down to the time of Hadrian, and perhaps later. In the time of Augustus, and subsequently, the list of judices (album judicum) was, according to Mommsen (Staatsr. 3, p. 535), taken simply from the Equites equo publico, the Senatores being no longer a decuria. Augustus added a new decuria, the Ducenarii, those whose census amounted to 200,000 sesterces, who judged minor cases; and subsequently Caligula added a fifth (cf. Greenidge’s Roman Public Life).
Recuperators are judges not taken from the panel (album judicum); see Greenidge’s Legal Procedure of Cicero’s Time, p. 266.
§ 21. Ulpian says, 1, 14, that a slave either under thirty years of age, or one who otherwise would only have become dediticius, or a freedman of the lowest class, if he is instituted the heres necessarius of an insolvent, becomes civis Romanus; cf. 2 § 154. Mommsen would supplement the text in this section with the following words—‘relictum alius heres nullus excludit neque ullus alius ex eo testamento heres existat idque eadem lege cautum est.’ In respect of what is missing in the remainder of the lacuna cf. note to Huschke’s Gaius.
When manumission was a purely private act, it could not confer Roman citizenship; it could only make a dediticius or a latinus.
The codex Alaricianus or Breviarium Alaricianum, a code promulgated a. d. 506 by Alaric II, king of the Visigoths of Spain and Gaul, contained, besides extracts from the codex Theodosianus (promulgated a. d. 438), a selection from the Sententiae of Paulus and an epitome of these Institutes of Gaius. From this epitome it appears that in the paragraphs now obliterated Gaius proceeded to explain the modes of private manumission by which a slave became Latinus Junianus, and instanced writing (per epistolam), attestation of witnesses (inter amicos), invitation of the slave to sit with other guests at the table of his master (convivii adhibitione).
§ 22. The lex Junia, as this law is called by Gaius and Ulpian (3, 3), or lex Junia Norbana, the title given to it by Justinian (Inst. 1, 5, 3), may be regarded as of uncertain date; the common opinion based on the word Norbana has been that it was passed in the reign of Tiberius, a. d. 19, fifteen years after the lex Aelia Sentia in the consulate of Marcus Junius Silanus and Lucius Norbanus Balbus, but it is now thought by some well-known Edition: current; Page:  writers to be earlier than the lex Aelia Sentia; thus Mommsen (Staatsr. 3, 626) is inclined to put it back to the end of the free republic (cf. Schneider, Zeitschr. d. Sav. Stiftung v. R. A. 1884). It defined and modified the status conferred by such acts of private manumission as were probably mentioned in this paragraph, converting Praetoris tuitione liber into ipso jure liber, or possessio libertatis into genuine libertas; with, however, sundry grievous stints and deductions. Under this statute the freedman was nominally assimilated to Latinus coloniarius, the citizen of a Roman colony in Latium; that is, had a moiety of the private rights composing civitas Romana or jus Quiritium, possessing commercium without connubium. As incapable of connubium or civil marriage, the Latinus was incapable of patria potestas over his children and of agnatio or civil relationship. Though incapable of civil marriage he was of course capable of gentile marriage (matrimonium, uxorem liberorum quaerendorum causa ducere) and of natural relationship (cognatio), just as an alien (peregrinus), though, by want of commercium, incapable of dominion ex jure Quiritium, was capable of bonitary ownership (in bonis habere) under the jus gentium.
In virtue of commercium, the Latinus Junianus was capable of Quiritary ownership, of civil acquisition and alienation (usucapio, mancipatio, in jure cessio), contract (obligatio), and action (vindicatio, condictio), like a Roman citizen; but in respect of testamentary succession his rights were very limited. He was said to have testamentary capacity (testamenti factio), Ulpian, 20, 8; but this only meant that he could perform the part of witness, or familiae emptor, or libripens (2 § 104), i. e. could assist another person to make a valid will; not that he could take under a will either as heir or as legatee, or could dispose of his own property by will, Ulpian, 20, 14. At his death all his property belonged to his patron, as if it were the peculium of a slave, 3 § 56. In fact, as Justinian says: Licet ut liberi vitam suam peragebant, attamen ipso ultimo spiritu simul animam atque libertatem amittebant, Inst. 3, 7, 4. ‘Though free in their lifetime, the same moment that deprived them of life reduced them to the condition of slaves.’
Although in the person of libertus himself, Latinitas retained many traces of its servile origin, yet it was not so for his posterity; these disabilities only attached to the original freedman, not to his issue. The son of the dediticius or Latinus Junianus, though reduced to absolute penury by the confiscation of the parental property to the patron, began, and continued, the world with the ordinary capacities, respectively, of peregrinus and Latinus coloniarius, and was under no legal obligations to the patron of his father.Edition: current; Page: 
Long before the time of Gaius, Latinitas or Latium had only a juristic, not an ethnographic signification. Cf. § 79. Soon after the Social War (b. c. 91) all Italy received the civitas Romana. Originally Gallia Cispadana (Southern Lombardy) had civitas Romana, while Gallia Transpadana (Northern Lombardy) had only Latinitas, but Gallia Transpadana afterwards obtained civitas. Latinitas was a definite juristic conception, and Latin status was conferred as a boon on many provincial towns and districts that had no connexion with Latium or its races. Vitellius is carped at by Tacitus for his lavish grants of Latinity (Latium vulgo dilargiri, Hist. 3, 55). Hadrian made many similar grants (Latium multis civitatibus dedit, Spartian, Had. 21), and Vespasian conferred Latin rights on the whole of Spain, Pliny, Hist. Nat. 3, 4. See § 131 Comm.
§ 28. Latini uero multis modis ad ciuitatem Romanam perueniunt.
§ 29. Statim enim ex lege Aelia Sentia minores triginta annorum manumissi et Latini facti si uxores duxerint uel ciues Romanas uel Latinas coloniarias uel eiusdem condicionis, cuius et ipsi essent, idque testati fuerint adhibitis non minus quam septem testibus ciuibus Romanis puberibus, et filium procreauerint, cum is filius anniculus esse coeperit, datur eis potestas per eam legem adire praetorem uel in prouinciis praesidem prouinciae, et adprobare se ex lege Aelia Sentia uxorem duxisse et ex ea filium anniculum habere; et si is apud quem causa probata est id ita esse pronuntiauerit, tunc et ipse Latinus et uxor eius, si et ipsa 〈eiusdem condicionis sit, et filius, si et ipse〉 eiusdem condicionis sit, ciues Romani esse iubentur.
Ulp. 3, 3.
§ 30. Ideo autem in huius persona adiecimus ‘si et ipse eiusdem condicionis sit,’ quia si uxor Latini ciuis Romana est, qui ex ea nascitur, ex nouo senatusconsulto, quod auctore diuo Hadriano factum est, ciuis Romanus nascitur.
Cf. § 80; Ulp. l. c.
§ 31. Hoc tamen ius adipiscendae ciuitatis Romanae etiamsi soli minores triginta annorum manumissi et Latini facti ex lege Aelia Sentia habuerunt, tamen postea senatusconsulto, quod Pegaso et Pusione consulibus factum est, etiam maioribus triginta annorum manumissis Latinis factis concessum est.
§ 32. Ceterum etiamsi ante decesserit Latinus, quam anniculi filii causam probauerit, potest mater eius causam probare, et sic et ipsa fiet ciuis Romana, si Latina fuerit —|— permissum — | — quibusdam — | ipse filius ciuis Romanus sit, quia ex ciue Romana matre natus est, tamen debet causam probare ut suus heres patri fiat.
§ 32 a. 〈quae〉 uero diximus de filio annicul〈o, eadem et de filia annicula〉 dicta intellegemus.
§ 32 b. |—|—| id est fiunt ciues Romani, si Romae inter uigiles sex annis militauerint. postea dicitur factum esse senatusconsultum, quo data est illis ciuitas Romana, si triennium militiae expleuerint.
Ulp. 3, 5.
§ 32 c. Item edicto Claudii Latini ius Quiritium consecuntur, si nauem marinam aedificauerint, quae non minus quam decem milia modiorum frumenti capiat, eaque nauis uel quae in eius locum substituta sit sex annis frumentum Roman portauerit.
Ulp. 3, 6.
§ 33. Praeterea a Nerone constitutum est ut si Latinus qui patrimonium sestertium cc milium plurisue habebit in urbe Roma domum aedificauerit, in quam non minus quam partem dimidiam patrimonii sui inpenderit, ius Quiritium consequatur.
Tac. Ann. 15, 43; Ulp. 3, 1.
§ 34. Denique Traianus constituit ut si Latinus in urbe triennio pistrinum exercuerit, in quo in dies singulos non minus quam centenos modios frumenti pinseret, ad ius Quiritium perueniat.
Ulp. l. c.
§ 35. —|—|—| sequi —| maiores triginta annorum manumissi et Latini facti —|— ius Quiritium consequi — tri|ginta annorum manumittant —|—| manumissus uindicta aut censu aut testamento — ciuis Romanus|—libertus fit qui eum iterauerit. ergo si seruus in | bonis tuis, ex iure Quiritium meus erit, Latinus quidem a te solo fieri potest, iterari autem a me, non etiam a te potest, et eo modo meus libertus fit. sed et ceteris modis ius Quiritium consecutus meus libertus fit. bonorum autem quae—, cum is morietur, reliquerit tibi possessio datur, quocumque modo ius Quiritium fuerit consecutus. quodsi cuius et in bonis et ex iure Quiritium sit manumissus, ab eodem scilicet et Latinus fieri potest et ius Quiritium consequi.
Ulp. 3, 1-4.
§ 28. Latins have many avenues to the Roman citizenship.
§ 29. For instance, the lex Aelia Sentia enacts that when a slave below the age of thirty becomes by manumission a Latin, if he take to himself as wife a citizen of Rome, or a Latin colonist, or a freedwoman of his own condition, and thereof procure attestation by not less than seven witnesses, citizens of Rome above the age of puberty, and begets a son, on the latter attaining the age of a year, he is entitled to apply to the praetor, or, if he reside in a province, to the president of the province, and to prove that he has married a wife in accordance with the lex Aelia Sentia, and has had by her a son who has completed the first year of his age: and thereupon if the magistrate to whom the proof is submitted pronounce the truth of the declaration, that Latin and his wife, if she is of the same condition, and their son, if he is of the same condition, are declared by the statute to be Roman citizens.
§ 30. The reason why I added, when I mentioned the son, if of the same condition, was this, that if the wife of the Latin is a citizen of Rome, the son, in virtue of the recent senatusconsult made on the motion of the late Emperor Hadrian, is a citizen of Rome from the date of his birth.
§ 31. This capacity of acquiring Roman citizenship, though by the lex Aelia Sentia exclusively granted to those under thirty years of age who had become Latins by this statute, by a subsequent senatusconsult, made in the consulship of Pegasus and Pusio, was extended to all freedmen who acquire the status of Latins, even though thirty years old when manumitted.
§ 32. If the Latin die before proof of his son’s attaining the age of a year the mother may prove his condition, and thereupon both she and her son, if she be a Latin, become citizens of Rome. And if the mother fails to prove it, the tutors of the son may do so or the son himself when he has attained the age of puberty. If the son himself is a Roman citizen owing to the fact of his having been born of a Roman citizen mother, he must nevertheless prove his condition in order to make himself his father’s self successor.
§ 32 a. What has been said about a son of a year old, must be understood to be equally applicable to a daughter of that age.
§ 32 b. By the Visellian statute those either under or over thirty years of age, who when manumitted become Latins, acquire the jus quiritium, i. e. become Roman citizens, if they have served for six years in the guards at Rome. Edition: current; Page:  A subsequent senatusconsultum is said to have been passed, by which Roman citizenship was conferred on Latins, who completed three years’ active military service.
§ 32 c. Similarly by an edict of Claudius Latins acquire the right of citizenship, if they build a ship which holds 10,000 modii of corn, and this ship or one substituted for it imports corn to Rome for six years.
§ 33. Nero further enacted that if a Latin having property worth 200,000 sesterces or more, build a house at Rome on which he expends not less than half his property, he shall acquire the right of citizenship.
§ 34. Lastly, Trajan enacted that if a Latin carry on the business of miller in Rome for three years, and grinds each day not less than a hundred measures of wheat, he shall attain Roman citizenship.
§ 35. Slaves who become Latins either because they are under thirty at the time of their manumission, or having attained that age because they are informally manumitted, may acquire Roman citizenship by re-manumission in one of the three legal forms, and they are thereby made freedmen of their re-manumitter. If a slave is the bonitary property of one person and the quiritary property of another he can be made a Latin by his bonitary owner, but his re-manumission must be the act of his quiritary owner, and even if he acquires citizenship in other Edition: current; Page:  ways he becomes the freedman of his quiritary owner. The praetor, however, invariably gives the bonitary owner possession of the inheritance of such freedman. A slave in whom his owner has both bonitary and quiritary property, if twice manumitted by his owner, may acquire by the first manumission the Latin status, and by the second Roman citizenship.
§ 29. This enactment is stated by Ulpian to belong to the lex Junia (Ulp. 3, 3), cf. § 18, comm.
Pronuntiaverit. The decision (sententia) of the judex in a judicium ordinarium was either condemnatio or absolutio of the defendant. In actions in which the case was left to the arbitrium of a judex this was apparently preceded by pronuntiatio, a declaration of the rights of the parties. This appears from the following, among other passages: Sed et si fundum vindicem meum esse, tuque confessus sis, perinde teneberis atque si dominii mei fundum esse pronuntiatum esset, Dig. 42, 2, 6, 2. Si quum de hereditate inter me et te controversia esset, juravero hereditatem meam esse, id consequi debeo quod haberem si secundum me de hereditate pronuntiatum esset, Dig. 12, 2, 10, 3. When the pronuntiatio was for the plaintiff, if the defendant obeyed the arbitrium or provisional order of the judex by making restitution, there was no subsequent condemnatio. Cf. 4 § 49. In the form of real action, called a praejudicium, that is, a preliminary issue of fact, the pronuntiatio formed the whole result of the trial, and was not followed by sententia. Similarly, when a Latinus laid his claim of Roman citizenship before the praetor under this enactment of the lex Aelia Sentia, the result of the extraordinaria cognitio of the praetor was merely a pronuntiatio without any subsequent decretum.
§ 31. Pegasus and Pusius were consuls in the reign of Vespasian. Inst. 2, 23, 5.
§ 32 b-§ 35. For references to the Visellian law cf. Cod. 9, 21 and 31. It was probably passed a.d. 24, when Serv. Cornelius Cethegus and L. Visellius Varro were consuls (but see Mommsen, Staatsr. 3, 424). Besides the method provided by the lex Aelia Sentia, and by the Senatusconsultum mentioned in § 31, Latinus or Latina might attain the Roman citizenship under the following conditions:—
1. By erroris causae probatio, i.e. if Latinus marry Peregrina, believing her to be Latina or Civis, § 70; or Latina marry Peregrinus, Edition: current; Page:  believing him to be Latinus, § 69; or if Civis, believing himself to be Latinus or Peregrinus, marry Latina, § 71; or if Civis marry Peregrinus, believing him to be Civis or Latinus; or if Civis marry Latina or Peregrina, believing her to be Civis Romana, § 67; on birth of a child and on proof of this mistake, the Latinus or Latina and their offspring acquire the citizenship.
2. By magistracy in a Latin colony Latinus becomes Civis Romanus, §§ 95, 96.
3. By re-manumission (iteratio), i.e. on slaves under thirty when manumitted acquiring Latinity by one of the private modes of manumission, a subsequent manumission by one of the public modes, vindicta, censu, or testamento, converted them from Latini into Cives, § 35, and Ulp. 3, 4.
4. Under the lex Visellia above mentioned by six years’ service in the Roman guards (si inter vigiles Romae sex annos militaverit, Ulp. 3, 5). A decree of the senate made three years’ service a sufficient title, § 32 b. Compare the provision of 13 Geo. II, c. 3, whereby every foreign seaman who in time of war serves two years on board an English ship, and all foreign protestants serving two years in a military capacity in the American colonies, are naturalized.
5. Under a constitution of Nero by building a house in Rome (aedificio, Ulp. 3, 1), § 33.
6. Under an edict of Claudius by building a ship of 10,000 modii and importing corn to Rome for six years, § 32 c, Sueton. Claud., Ulp. 3, 6. Compare the English law by which all foreign protestants employed three years in the whale fishery are naturalized, except as to capacity for public office.
7. Under a constitution of Trajan by building a mill and bakehouse for the supply of Rome (pistrino, Ulp. 3, 1), § 34.
8. By bearing three children, Ulp. 3, 1.
9. By imperial grant (beneficio principali, Ulp. 3, 2). This and the previous mode of acquiring citizenship were perhaps mentioned by Gaius at the beginning of § 35.
Civitas Romana and Jus Quiritium are synonymous, but the former term was always used when citizenship was conferred on a Peregrinus, the latter generally when it was conferred on Latinus Junianus: e. g. Quare rogo, des ei civitatem, est enim peregrinae conditionis, manumissus a peregrina. . . . Idem rogo, des ius Quiritium libertis Antoniae Maximillae . . . quod a te, petente patrona, peto, Pliny to Trajan, 10, 4. Ago gratias, domine, quod et ius Quiritium libertis necessariae mihi feminae et civitatem Romanam Harpocrati, iatraliptae meo, sine mora indulsisti, ibid. 10, 5. Civitas Romana, however, was sometimes used in speaking of the enfranchisement of Latinus, as we see from § 28.
§ 36. | Non tamen cuicumque uolenti manumittere licet.
Inst. 1, 6 pr.
§ 37. Nam is qui | in fraudem creditorum uel in fraudem patroni manumittit, nihil agit, quia lex Aelia Sentia inpedit libertatem.
Inst. l. c., Ulp. 1, 15.
§ 38. Item eadem lege minori xx annorum domino non aliter manumittere permittitur, quam [si] uindicta apud consilium iusta causa manumissionis adprobata [fuerit].
Inst. 1, 6, 4.
§ 39. Iustae autem causae manumissionis sunt ueluti si quis patrem aut matrem aut paedagogum aut conlactaneum manumittat. sed et illae causae, quas superius in seruo minore xxx annorum exposuimus, ad hunc quoque casum de quo loquimur adferri possunt. item ex diuerso hae causae, quas in minore xx annorum domino rettulimus, porrigi possunt et ad seruum minorem xxx annorum.
Inst. 1, 6, 4, 5.
§ 40. Cum ergo certus modus manumittendi minoribus xx annorum dominis per legem Aeliam Sentiam constitutus sit, euenit ut qui xiiii annos aetatis expleuerit, licet testamentum facere possit et in eo heredem sibi instituere legataque relinquere possit, tamen, si adhuc minor sit annorum xx, libertatem seruo dare non possit.
Inst. 1, 6, 7.
§ 41. Et quamuis Latinum facere uelit minor xx annorum dominus, tamen nihilo minus debet apud consilium causam probare et ita postea inter amicos manumittere.
§ 36. Not every owner who is so disposed is permitted to manumit.
§ 37. An owner who would defraud his creditors or his own patron by an intended manumission, attempts in vain to manumit, because the lex Aelia Sentia prevents the manumission.
§ 38. Again, by a disposition of the same statute, before attaining twenty years of age, the only process by which an owner can manumit is fictitious vindication, preceded by proof of adequate motive before the council.
§ 39. It is an adequate motive of manumission, if the father, for instance, or mother or teacher or foster-brother of the manumitter, is the slave to be manumitted. In addition to these, the motives recently specified respecting the slave under thirty years of age may be alleged when the manumitting owner is under twenty; and, reciprocally, the motives valid when the manumitting owner is under twenty are admissible when the manumitted slave is under thirty.
§ 40. As, then, the lex Aelia Sentiaimposes a certain restriction on manumission for owners under the age of twenty, it follows that, though a person who has completed his fourteenth year is competent to make a will, and therein to institute an heir and leave bequests; yet, if he has not attained the age of twenty, he cannot therein enfranchise a slave.
§ 41. And even to confer the Latin status, if he is under the age of twenty, the owner must Edition: current; Page:  satisfy the council of the adequacy of his motive before he manumits the slave in the presence of witnesses.
§ 41. Justinian, having first reduced the age from 20 to 17, or the beginning of the eighteenth year (Inst. 1, 6, 7), finally permitted minors to enfranchise by will as soon as they could make a valid will, i. e. at the age of 14 (Novella, 119, 2). He mentions that the lowest class of freedmen (dediticia libertas) had long been obsolete, and formally abolished the second class (latina libertas), converting informal modes of making Latinus, such as per epistolam, inter amicos, into modes of making Civis Romanus, and declaring the rest inoperative, Cod. 7, 6. Cf. Moyle, Comm. Inst. 1, 5.
§ 42. Praeterea lege Fufia Caninia certus modus constitutus est in seruis testamento manumittendis.
Inst. 1, 7, 1.
§ 43. Nam ei qui plures quam duos neque plures quam decem seruos habebit usque ad partem dimidiam eius numeri manumittere permittitur; ei uero, qui plures quam x neque plures quam xxx seruos habebit usque ad tertiam partem eius numeri manumittere permittitur. at ei qui plures quam xxx neque plures quam centum habebit usque ad partem quartam potestas manumittendi datur. nouissime ei qui plures quam c nec plures quam d habebit, non plures manumittere permittitur quam quintam partem; neque plures 〈—〉 tur: sed praescribit lex, ne cui plures manumittere liceat quam c. quodsi quis unum seruum omnino aut duos habet, ad hanc legem non pertinet et ideo liberam habet potestatem manumittendi.
§ 44. Ac ne ad eos quidem omnino haec lex pertinet qui sine testamento manumittunt. itaque licet iis, qui uindicta aut censu aut inter amicos manumittunt, totam familiam liberare, scilicet si alia causa non inpediat libertatem.
§ 46. Nam et si testamento scriptis in orbem seruis libertas data sit, quia nullus ordo manumissionis inuenitur, nulli liberi erunt, quia lex Fufia Caninia quae in fraudem eius facta sint rescindit. sunt etiam specialia senatusconsulta quibus rescissa sunt ea quae in fraudem eius legis excogitata sunt.
§ 47. In summa sciendum est, 〈cum〉 lege Aelia Sentia cautum sit, ut creditorum fraudandorum causa manumissi liberi non fiant, hoc etiam ad peregrinos pertinere (senatus ita censuit ex auctoritate Hadriani), cetera uero iura eius legis ad peregrinos non pertinere.
§ 42. Moreover, by the lex Fufia Caninia a certain limit is fixed to the number of slaves who can receive testamentary manumission.
§ 43. An owner who has more than two slaves and not more than ten is allowed to manumit as many as half that number; he who was more than ten and not more than thirty is allowed to manumit a third of that number; he who has more than thirty and not more than a hundred is allowed to manumit a fourth; lastly, he who has more than a hundred and not more than five hundred is allowed to manumit a fifth: and, however many a man possesses, he is never allowed to manumit more than this number, for the law prescribes that no one shall manumit more than a hundred. On the other hand, if a man has only one or only two, the law is not applicable, and the owner has unrestricted power of manumission.
§ 44. Nor does the statute apply to any but testamentary manumission, so that by the form of vindicta or inscription on the censor’s register, or by attestation of friends, a proprietor of slaves may manumit his whole household, provided that there is no other let or hindrance to impede their manumission.
§ 46. If a testator manumits in excess of the permitted number, and arranges their names in a circle, as no order of manumission can be discovered, none of them can obtain their freedom, as both the lex Fufia Caninia itself and certain subsequent decrees of the senate declare null and void all dispositions contrived for the purpose of eluding the statute.
§ 47. Finally, it is to be noted that the provision in the lex Aelia Sentia making manumissions in fraud of creditors inoperative, was extended to aliens by a decree of the senate passed on the proposition of the Emperor Hadrian; whereas the remaining dispositions of that statute are inapplicable to aliens.
§ 47. The lex Fufia Caninia, passed under Augustus (Sueton. Aug. 40), to prevent the degradation of citizenship by testators abusing their testamentary right of manumission, was generally called the lex Furia Caninia before the manuscript of Gaius was re-examined by Studemund; it was abrogated by Justinian. See Inst. 1, 7. The clause of the lex Aelia Sentia referred to in the text was retained by Justinian. Inst. 1, 6 pr.
§ 48. Sequitur de iure personarum alia diuisio. nam quaedam personae sui iuris sunt, quaedam alieno iuri subiectae sunt.
Inst. 1, 8 pr.
§ 49. Rursus earum personarum, quae alieno iuri subiectae sunt, aliae in potestate, aliae in manu, aliae in mancipio sunt.
Inst. l. c.
§ 50. Videamus nunc de his quae alieno iuri subiectae sint; 〈nam〉 si cognouerimus quae istae personae sint, simul intellegemus quae sui iuris sint.
Inst. l. c.
§ 51. Ac prius dispiciamus de iis qui in aliena potestate sunt.
Inst. l. c.
§ 52. In potestate itaque sunt serui dominorum. quae quidem potestas iuris gentium est: nam apud omnes peraeque gentes animaduertere possumus dominis in seruos uitae necisque potestatem esse; et quodcumque per seruum adquiritur, id domino adquiritur.
Inst. 1, 8, 1.
§ 53. Sed hoc tempore neque ciuibus Romanis, nec ullis aliis hominibus qui sub imperio populi Romani sunt, licet supra modum et sine causa in seruos suos saeuire; nam ex constitutione imperatoris Antonini qui sine causa seruum suum occiderit, non minus teneri iubetur, quam qui alienum seruum occiderit. sed et maior quoque asperitas dominorum per eiusdem principis constitutionem coercetur; nam consultus a quibusdam praesidibus prouinciarum de his seruis, qui ad fana deorum uel ad statuas principum confugiunt, praecepit ut si intolerabilis uideatur dominorum saeuitia cogantur seruos suos uendere. et utrumque recte fit; male enim nostro iure uti non debemus; qua ratione et prodigis interdicitur bonorum suorum administratio.
Inst. 1, 8, 2.
§ 54. Ceterum cum apud ciues Romanos duplex sit dominium (nam uel in bonis uel ex iure Quiritium uel ex utroque iure cuiusque seruus esse intellegitur), ita demum seruum in potestate domini esse dicemus, si in bonis eius sit, etiamsi simul ex iure Quiritium eiusdem non sit; nam qui nudum ius Quiritium in seruo habet, is potestatem habere non intellegitur.
§ 48. Another division in the law of Persons classifies men as either dependent or independent.
§ 49. Those who are dependent or subject to a superior, are either in his power, in his hand, or in his mancipation.
§ 50. Let us first explain what persons are dependent on a superior, and then we shall know what persons are independent.
§ 51. Of persons subject to a superior, let us first examine who are in his power.
§ 52. Slaves are in the power of their proprietors, a power recognized by jus gentium, since all nations present the spectacle of masters invested with power of life and death over slaves; and (by the Roman law) the owner acquires everything acquired by the slave.
§ 53. But in the present day neither Roman citizens, nor any other persons under the empire of the Roman people, are permitted to indulge in excessive or causeless harshness towards their slaves. By a constitution of the Emperor Antoninus, a man who kills a slave of whom he is owner, is as liable to punishment as a man who kills a slave of whom he is not owner: and inordinate cruelty on the part of owners is checked by another constitution whereby the same emperor, in answer to inquiries from presidents of provinces concerning slaves who take refuge at temples of the gods, or statues of the emperor, commanded that on proof of intolerable cruelty a proprietor should be compelled to sell his slaves: and both ordinances are just, for we ought not Edition: current; Page:  to make a bad use of our lawful rights, a principle recognized in the interdiction of prodigals from the administration of their fortune.
§ 54. But as citizens of Rome may have a double kind of dominion, either bonitary or quiritary, or a union of both bonitary and quiritary dominion, a slave is in the power of an owner who has bonitary dominion over him, even unaccompanied with quiritary dominion; if an owner has only bare quiritary dominion he is not deemed to have the slave in his power.
§§ 52, 53. The condition of the slave was at its worst in the golden period of Roman history. As soon as Rome found her power irresistible she proceeded to conquer the world, and each stage of conquest was the reduction of a vast portion of mankind to slavery. 30,000 Tarentines were sent as slaves to Rome by Fabius Cunctator, the captor of Tarentum; 150,000 Epirots by Paulus Aemilius, the subjugator of Epirus. Julius Caesar retrieved his shattered fortunes by enormous operations in the slave market during his campaign in Gaul. Thus, unfortunately for the slave, the slave market was continually glutted and slave life was cheap. The condition of the slave gradually but slowly improved under the emperors. The killing of the slave of another was not an offence under the lex Cornelia de sicariis itself, but by the interpretation of later times it was brought under this law. A lex Petronia of uncertain date, but which must have been passed before the destruction of Pompeii, a. d. 79, being mentioned in an inscription found there, required a slave-owner to obtain the permission of a magistrate before exposing a slave to be torn to pieces by wild beasts, and only allowed such permission to be granted for some offence committed by the slave, Dig. 48, 8, 11, 2. Claudius prohibited a master killing his own slaves who fell sick, and enacted that the exposure of a slave to perish in his sickness should operate as a manumission, conferring Latinitas, Sueton. Claud. 25, Cod. 7, 6, 3. Hadrian is said to have deprived proprietors of the power of putting slaves to death without a judicial sentence, Spartian, Had. 18 (but see on this Mommsen, Strafr., p. 617, n. 2). Antoninus Pius declared a Edition: current; Page:  master who killed his own slave to be responsible in the same way as if he had killed the slave of another, cf. § 53, 3 § 213, i. e. guilty of murder, and subject to the penalty of the lex Cornelia de sicariis. We read in Justinian’s Digest: Qui hominem occiderit punitur non habita differentia cujus conditionis hominem interemit, Dig. 48, 8, 2. The punishment was generally capital, Dig. 48, 8, 3, 5. It is to be remembered, however, that none of these laws deprive the master of the right of punishing his slaves himself for domestic offences. Hadrian prohibited the castration of a slave, consenting or not consenting, under penalty of death, Dig. 48, 8, 4, 2. Antoninus Pius also protected slaves against cruelty and personal violation, Dig. 1, 6, 2, obliging the master, as we see by the text, to manumit them on account of his maltreatment. The Digest, 1, 6, 1, quoting § 53, after sine causa, interpolates, legibus cognita, thus placing slaves under the protection of the law, and almost recognizing in slaves some of the primordial rights of humanity, except that, as already observed, obligation does not necessarily imply a correlative right. Roman law to the end, unlike other legislations which have recognized forms of slavery, refused to admit any rights in the slave. Florentinus, however, not long after the time of Gaius, admitted that slavery, though an institution of jus gentium, was a violation of the law of nature. Servitus est constitutio juris gentium qua quis domino alieno contra naturam subicitur, Dig. 1, 5, 4. Ulpian says the same: Quod attinet ad jus civile, servi pro nullis habentur, non tamen et jure naturali; quia quod ad jus naturale attinet, omnes homines aequales sunt, Dig. 50, 17, 32. ‘Before the Civil law a slave is nothing, but not before the Natural law; for in the eye of Natural law all men are equal.’ The belief in a Natural law, more venerable than any Civil law, was very prevalent in the ancient world, and one of the principal contributions of Philosophy to civilization.
The absolute privation of all rights was sometimes expressed by saying that a slave has no persona, caput, or status: e. g. Servos quasi nec personam habentes, Nov. Theod. 17. Servus manumissus capite non minuitur quia nullum caput habet, Inst. 1, 16, 4. Cum servus manumittitur, quia servile caput nullum jus habet, ideo nec minui potest, eo die enim incipit statum habere, Dig. 4, 5, 4. The word ‘persona,’ however, is sometimes applied to slaves; e. g. in personam servilem nulla cadit obligatio, Dig. 50, 17, 22. So is caput in the last but one of the above-quoted passages.
But though a Roman slave was incapable of being invested with rights for himself, yet he often filled positions of considerable importance both in public and private life and was allowed by his owner to hold a considerable peculium. It was because slaves were Edition: current; Page:  ordinarily employed as procuratores in commercial transactions, that Roman law failed to develop the principle of contractual agency, as it is understood in modern systems of jurisprudence.
§ 55. Item in potestate nostra sunt liberi nostri quos iustis nuptiis procreauimus. quod ius proprium ciuium Romanorum est; fere enim nulli alii sunt homines qui talem in filios suos habent potestatem qualem nos habemus. idque diuus Hadrianus edicto quod proposuit de his, qui sibi liberisque suis ab eo ciuitatem Romanam petebant, significauit. nec me praeterit Galatarum gentem credere in potestate parentum liberos esse.
Inst. 1, 9 pr.
§ 55. Again, a man has power over his own children begotten in civil wedlock, a right peculiar to citizens of Rome, for there is scarcely any other nation where fathers are invested with such power over their children as at Rome; and this the late Emperor Hadrian declared in the edict he published respecting certain petitioners for a grant of Roman citizenship to themselves and their children; though I am aware that among the Galatians parents are invested with power over their children.
§ 55. The most peculiar portion of the Roman law of status is that which refers to patria potestas, or the relation of paterfamilias to filiusfamilias. Patria potestas was founded on consuetudinary law (cum jus potestatis moribus sit receptum, Dig. 1, 6, 8), and may be considered under two heads, (1) as regarding the person of the son, (2) as regarding proprietary rights acquirable by the son.
1. Over the person of the child the father had originally a power of life and death. Patribus jus vitae in liberos necisque potestas olim erat permissa, Cod. 8, 47, 10. So the lex Pompeia de parricidiis, enumerating the persons who could be guilty of parricide, or the murder of a blood relation, omits the father, Dig. 48, 9. Compare also the formula of Adrogatio, §§ 97-107, commentary. But in later times this power was withdrawn. Hadrian condemned to deportation a father who in the hunting-field killed his son who had committed adultery with his stepmother, Dig. 48, 9, 5. Constantine, a. d. 319, included killing by a father under the crime of parricide, Cod. 9, 17. Fathers retained the power of moderate chastisement, but severe punishment could only be inflicted by the magistrate, Cod. 8, 46, 3. Si atrocitas facti jus domesticae emendationis excedat, placet enormis delicti reos dedi judicum notioni, Cod. 9, 15. Trajan compelled a father to emancipate a son whom he treated with inhumanity, Dig. 37, 12, 5. It was originally at Edition: current; Page:  the option of the parent whether he would rear an infant or expose it to perish, but in later times such exposure was unlawful, as was declared by Valentinian, Valens, and Gratian, a. d. 374, Cod. 8, 51, 2.
Originally also parents had the power of selling (mancipandi) their children into bondage, thus producing a capitis minutio, or degradation of status. The patriarchs of the Roman race may perhaps have been slave-dealers who, like some savage tribes in Africa and elsewhere, trafficked in the bodies of their own children, but we must note that the bondage into which a Roman father sold his children was, at least at the time at which this institution is known to us, a limited degree of subjection: the mancipation, which if made three times released a son from his father’s power according to a provision of the Twelve Tables, could only be made to another Roman citizen, and the bondsman continued to be liber and civis. And this power also was withdrawn in more civilized times. A law of Diocletian and Maximian, a. d. 294, declares the sale, donation, pledging of children to be unlawful, Cod. 4, 43, 1. A rescript of one of the Antonines commences in the following terms, Cod. 7, 16, 1: ‘You are guilty, by your own admission, of an unlawful and disgraceful act, as you state that you sold your freeborn children.’ Justinian increased the penalties of the law against creditors who took possession of the freeborn child of a debtor as a security for a debt. He enacted that the creditor should forfeit the debt, should pay an equal sum to the child or parent, and in addition should undergo corporal punishment, Novella, 134, 7. In the time of Gaius, the only genuine sale of a child into bondage was in the case of noxal surrender, i. e. when a father sued for the delict of a child, in lieu of damages, surrendered his delinquent son or daughter as a bondsman (mancipium) to the plaintiff, § 140. The sale of the child in adoption and emancipation was merely fictitious; even noxal surrender was practically obsolete in the time of Justinian, by whom it was formally abolished, Inst. 4, 8, 7. Constantine, however, a. d. 329, in cases of extreme poverty permitted parents to sell their children immediately after birth (sanguinolentos), and this constitution was retained in the code of Justinian, Cod. 4, 43, 2.
2. In respect of property, filiusfamilias was capable of obligation but not of right; he could be debtor but not creditor; in any transaction where an independent person (sui juris) would have been creditor, filiusfamilias was merely a conduit-pipe through which a right vested in his father as creditor or proprietor. Even in domestic relations filiusfamilias could only figure as inferior, not as superior; he owed obedience, but could not exercise command Edition: current; Page:  (jus, in the special sense which it has in the phrases, sui juris, alieni juris); he could only be an instrument by which his father acquired a right of command. Thus, filiusfamilias had commercium, and could take by mancipatio, but the property he thus took vested in his father; he could make a valid contract, but the contractual right vested in his father; he had testamentifactio, that is, he could be witness, libripens, familiae emptor, but he could not make a will, for he had no property to leave; and if he took under a will as legatee or heir, the legacy or succession vested in his father: cf. 2 § 87, 3 § 163, comm. He had the other element of civitas, connubium; that is, he could contract a civil marriage and beget civil children; but the patria potestas over these children vested not in the father but in the grandfather, and if the marriage was accompanied with power of hand (manus), marital power over the wife, this vested not in the husband but in the husband’s father. Any property which the son was allowed by his father to manage was called his peculium, i. e. was held on the same terms as property which a slave administered by permission of his proprietor. In respect of debts which he incurred, the son did not act as conduit-pipe, but (except for a loan of money, which the Sc. Macedonianum made irrecoverable) was liable in his own person, Dig. 44, 7, 39. ‘A son under power incurs obligation by the same titles, and may be sued on the same grounds of action as an independent person.’ The same rule applied to the son as to the slave: Melior conditio nostra per servos fieri potest, deterior fieri non potest, Dig. 50, 17, 133. ‘The melioration of his proprietor’s condition is in the power of a slave, but not the deterioration.’
In his public functions, filiusfamilias was entirely beyond the sphere of patria potestas. Quod ad jus publicum attinet non sequitur jus potestatis, Dig. 36, 1, 14. Thus, a son could act as praetor or as judex in a suit to which his father was a party. He could even preside as magistrate over his own adoption or emancipation: Si consul vel praeses filiusfamilias sit, posse eum apud semetipsum vel emancipari vel in adoptionem dari constat, Dig. 1, 7, 3 (which makes it doubtful how far political functions were suspended even by the state of mancipium or bondage). He could also be appointed guardian (tutor), for guardianship (tutela) was held to be a public function, Dig. 1, 6, 9. ‘A filiusfamilias in his public relations is deemed independent, for instance, as magistrate or as guardian.’
The above-stated incapacities of filiusfamilias were subject, however, to certain exceptions and modifications, which may now be briefly considered.
a. In certain cases filiusfamilias had an anomalous right of suing Edition: current; Page:  in his own name (suo nomine), i. e. not merely as procurator or attorney of his father, and even in opposition to his father’s wishes, Dig. 44, 7, 9. ‘A filiusfamilias can only, according to Julian, sue in his own name for outrage, by interdict for violent or clandestine disturbance, for a deposit, and for a thing he has lent for use.’ These suits, which, in spite of the statement in the text, were not the only, though perhaps the oldest, actions maintainable by a person under power, deserve a brief explanation. Without the right to Honour, one of the primordial rights of humanity, a man is scarcely a freeman, and, accordingly, this right vests definitively in filiusfamilias, and does not again pass out of him to vest in his father. Any dishonouring outrage, therefore, gave filiusfamilias a right of bringing a civil action, called actio injuriarum, in his own name, though the paterfamilias as a rule maintained the action both on his own account and that of his son; if, however, he was unable to do so, or his character was dubious, the son could proceed by himself (cf. 3 § 221, and Dig. 47, 10, 17, 10, &c.), although any pecuniary damages that he thereby recovered, being in the nature of property, were recovered for his father. The son under power was recognized, then, as invested with a vindictive right, though not with a proprietary right. The actio injuriarum was one in bonum et aequum concepta (compare Dig. 47, 10, 11, 1, and Dig. 44, 7, 34 pr.), that is, the terms of the formula (conceptio) directed the judex to assess the damages not on any strict principle of law, but by his own sense of natural equity (aequum et bonum), and this form may have helped to make the action maintainable by one who was generally incompetent to sue. The interdict quod vi aut clam was maintainable by filiusfamilias on the same principle as the actio injuriarum, being a means of vindicating a dishonouring outrage inflicted on filiusfamilias by some violent disturbance of real immovable property in defiance of his prohibitio or summons to stay operations and let the matter ahide the result of a judicial trial. Cf. 4 §§ 138-170, comm. On the same principle a filiusfamilias disinherited or passed over in the will of his mother or maternal grandfather, as such disinheritance or pretermission was an implied imputation of turpitude or unworthiness and therefore dishonouring, might without the consent of his father (Dig. 5, 2, 22 pr.) vindicate his honour by impeaching the will of inofficiositas (immorality, or want of natural affection), although such querela inofficiosi testamenti, being an action having a right to property for its object, would not otherwise have been maintainable by a filiusfamilias. If the plaintiff filiusfamilias could show that the disinheritance or omission was not due to his own demerits, he invalidated the will by a Edition: current; Page:  fictitious presumption of the testator’s lunacy and made the testator intestate; and thus filiusfamilias vindicated his own character, though whatever share he recovered in the intestate succession vested in his father. Cf. 2 §§ 152-173, comm.; Inst. 2, 18.
The right of filiusfamilias to sue by actio commodati or depositi was founded on a different principle. Suppose that filiusfamilias had borrowed or hired a thing that he afterwards lent or deposited; his father, not being responsible for his son’s debts, would not be interested in the recovery of the thing, and therefore was not entitled to sue the depositary or borrower: the son, however, would be answerable to the original lender or letter, and accordingly was allowed to sue in his own name. To avoid, however, contravening the civil law by affirming a proprietary right vested in a filiusfamilias, he did not sue by a formula in jus concepta, i. e. of the form, si paret oportere, ‘if the plaintiff establish a right,’ but by a formula in factum, of the form, si paret factum esse, ‘if the plaintiff establish a fact.’ It is remarkable that Gaius instances precisely the actio commodati and the actio depositi as having two forms, one in jus and another in factum (4 § 47); and we may eonjecture that the latter was invented to be used under these very circumstances by filiusfamilias.
b. The latter periods of Roman law present a gradual emancipation of filiusfamilias by successive inventions of new kinds of peculium. As early as the time of Augustus filiusfamilias was allowed to dispose freely by will of his earnings in military service, castrense peculium, which came to be treated in all respects as his individual property, except that till the time of Justinian the rules of intestate succession did not apply to it. Filiifamilias in castrensi peculio vice patrumfamiliarum funguntur, Dig. 4, 6, 2. Subsequently to the time of Gaius, under Constantine and his successors, the earnings of filiifamilias in the civil service of the State, in holy orders, in the liberal professions, were assimilated to their earnings in the army, and came to be called peculium quasi castrense. Further, in the time of Constantine, it was also established that whatever came to the son from his mother or, as the law was under Justinian, from the maternal line, or from any source but the paternal estate (ex re patris), should be acquired for the father, and held by him only as a usufruct or life estate, while, subject to this, the son had the ownership of it (peculium adventicium). Peculium adventicium thus included everything acquired by the son which was not castrense peculium, nor quasi-castrense peculium, nor acquired by means of the father’s property (ex re patris). Only this latter peculium derived from the paternal estate continued, under the name of peculium profecticium, subject to the old rules, and belonged in Edition: current; Page:  absolute property to the father. Cf. 2 § 87, comm.; Inst. 2, 9, 1; 3, 19, 6; 4, 8, 7; 3, 10, 2, 28 pr.
The Gallic race, of which the Galatians were a branch, are mentioned by Caesar as having the institution of patria potestas: Viri in uxores, sicuti in liberos, vitae necisque habent potestatem, De Bello Gall. 6, 19. St. Paul in his Epistle to the Galatians may perhaps allude to the peculiarity of their law: ‘The heir, as long as he is a child, differeth nothing from a servant (slave), though he be lord of all’; 4, 1, though the Apostle seems to be directly referring to the cognate institution of guardianship.
§ 56. |—,| si ciues Romanas uxores duxerint, uel etiam Latinas peregrinasue cum quibus conubium habeant; cum enim conubium id efficiat, ut liberi patris condicionem sequantur, euenit ut non 〈solum〉 ciues Romani fiant, sed etiam in potestate patris sint.
Inst. 1, 10 pr.
§ 57. Unde et ueteranis quibusdam concedi solet principalibus constitutionibus conubium cum his Latinis peregrinisue quas primas post missionem uxores duxerint; et qui ex eo matrimonio nascuntur, et ciues Romani et in potestate parentum fiunt.
§ 58. | Non tamen omnes nobis uxores ducere licet; | nam a quarundam nuptiis abstinere debemus;
Inst. l. c.
§ 59. inter eas enim personas quae parentum liberorumue locum inter se optinent nuptiae contrahi non possunt, nec inter eas conubium est, ueluti inter patrem et filiam, uel inter matrem et filium, uel inter auum et neptem; et si tales personae inter se coierint, nefarias et incestas nuptias contraxisse dicuntur. et haec adeo ita sunt, ut quamuis per adoptionem parentum liberorumue loco sibi esse coeperint, non possint inter se matrimonio coniungi, in tantum, ut etiam dissoluta adoptione idem iuris maneat; itaque eam quae mihi per adoptionem filiae aut neptis loco esse coeperit non potero uxorem ducere, quamuis eam emancipauerim.
Inst. l. c.
§ 60. Inter eas quoque personas quae ex transuerso gradu cognatione iunguntur est quaedam similis obseruatio, sed non tanta.
§ 61. Sane inter fratrem et sororem prohibitae sunt nuptiae, siue eodem patre eademque matre nati fuerint, siue alterutro eorum: sed si qua per adoptionem soror mihi esse coeperit, quamdiu quidem constat adoptio, sane inter me et eam nuptiae non possunt consistere; cum uero per emancipationem adoptio dissoluta sit, potero eam uxorem ducere; sed et si ego emancipatus fuero, nihil inpedimento erit nuptiis.
§ 62. Fratris filiam uxorem ducere licet. idque primum in usum uenit, cum diuus Claudius Agrippinam fratris sui filiam uxorem duxisset; sororis uero filiam uxorem ducere non licet. et haec ita principalibus constitutionibus significantur. Item amitam et materteram uxorem ducere non licet.
Inst. 1, 10, 3-5.
§ 63. Item eam quae mihi quondam socrus aut nurus aut priuigna aut nouerca fuit. ideo autem diximus ‘quondam,’ quia si adhuc constant eae nuptiae, per quas talis adfinitas quaesita est, alia ratione mihi nupta esse non potest, quia neque eadem duobus nupta esse potest, neque idem duas uxores habere.
Inst. 1, 10, 6.
§ 64. Ergo si quis nefarias atque incestas nuptias contraxerit, neque uxorem habere uidetur neque liberos; itaque hi qui ex eo coitu nascuntur matrem quidem habere uidentur, patrem uero non utique: nec ob id in potestate eius 〈sunt, sed tales〉 sunt quales sunt hi quos mater uulgo concepit; nam et hi patrem habere non intelleguntur, cum is etiam incertus sit; unde solent spurii filii appellari, uel a Graeca uoce quasi σποράδην concepti, uel quasi sine patre filii.
Inst. 1, 10, 12.
§ 56. A Roman citizen contracts civil wedlock and begets children subject to his power when he takes to wife a citizen of Rome or a Latin or alien with whom a Roman has capacity of civil wedlock; for as civil wedlock has the effect of giving to the children the paternal condition, they become by birth not only citizens of Rome, but also subject to the power of the father.
§ 57. And for this purpose veterans often obtain by imperial constitution a power of civil wedlock with the first Latin or alien woman they take to wife after their discharge from service, and the children of such marriages are born citizens of Rome and subject to paternal power.
§ 58. But it is not any woman that can be taken to wife, for some marriages are prohibited.
§ 59. Persons related as ascendent and descendent are incapable of lawful marriage or civil wedlock, father and daughter, for instance, mother and son, grandfather and granddaughter; and if such relations unite, their unions are called incestuous and nefarious; and so absolute is the Edition: current; Page:  rule that merely adoptive ascendents and descendents are for ever prohibited from intermarriage, and dissolution of the adoption does not dissolve the prohibition: so that an adoptive daughter or granddaughter cannot be taken to wife even after emancipation.
§ 60. Collateral relatives also are subject to similar prohibitions, but not so stringent.
§ 61. Brother and sister, indeed, are prohibited from intermarriage whether they are born of the same father and mother or have only one parentin common: but though an adoptive sister cannot, during the subsistence of the adoption, become a man’s wife, yet if the adoption is dissolved by her emancipation, or if the man is emancipated, there is no impediment to their intermarriage.
§ 62. A man may marry his brother’s daughter, a practice first introduced when Claudiusmarried his brother’s daughter Agrippina, but may not marry his sister’s daughter, a distinction laid down in imperial constitutions, nor may he marry his father’s sister or his mother’s sister.
§ 63. He may not marry one who has been his wife’s mother or his son’s wife or his wife’s Edition: current; Page:  daughter or his father’s wife. I say, one who has been so allied, because during the continuance of the marriage that produced the alliance there would be another impediment to the union, for a man cannot have two wives nor a woman two husbands.
§ 64. A man who contracts a nefarious and incestuous marriage is not deemed to have either a wife or children; for the offspring of such a union are deemed to have a mother but no father, and therefore are not subject to paternal power; resembling children born in promiscuous intercourse, who are deemed to have no father, because their true father is uncertain, and who are called bastards either from the Greek word denoting illicit intercourse or because they are fatherless.
In any treatise on the law of marriage that we open we shall meet the expression, the marriage contract; and this suggests the inquiry, is marriage a contract, and, if so, to which class of Roman contracts, Verbal, Literal, Real, Consensual, 3 § 89, is Roman marriage to be referred? Most writers assume that it was a Consensual contract, on the strength of texts like the following: Nuptias non concubitus sed consensus facit, Dig. 35, 1, 15. ‘Marriage does not depend on cohabitation, but on consent.’ Ortolan, however, remarks that consensual contracts could be formed by absent contractors, Inst. 3, 22, 2, whereas a marriage could not be contracted in the absence of the wife, Paul, 2, 19, 8; and shows that, besides the consent of the parties, delivery of possession of the wife to the husband was required, from which he infers that Roman marriage was not a Consensual but a Real contract. It is true that marriage might be contracted in the absence of the husband; but this was only under certain conditions, Dig. 23, 22, 5. ‘A man in his absence may marry by letter or message, provided the woman is led to his house: a woman in her absence cannot marry by letter or message, for the leading must be to the husband’s house, as the domicile of the married pair.’ And precisely the same conditions Edition: current; Page:  were sufficient in other cases to constitute delivery of possession, Dig. 41, 2, 18, 2. ‘If a vendor deposit any article in my house by my order, I have possession of it though I have never touched it.’ Consensus, then, in the above-quoted passage, is not opposed to delivery of possession, but to cohabitation, or to the use of certain words or certain documents, or to the solemn and graceful ceremonial with which custom surrounded the matrimonial union.
Real contracts, however, are executory on one side and executed on the other, whereas in the conjugal relation both parties are on the same footing in respect of execution; and we may ask whether marriage is a contract at all; whether it does not rather fall under the opposite category of alienation or conveyance. Instead of finding its analogon in locatio-conductio or societas (consensual contracts) or pignus or commodatum (real contracts), may we not rather, with Savigny, find it in transfer of dominion or other creations of real right, such as adoption, the concession of patria potestas, or emancipation? This seems the truer view, and if we use the expression, marriage contract, we must use the term contract not in a specific sense, as opposed to conveyance, but in the generic sense of bilateral disposition (as opposed to unilateral disposition, e.g. testation), a sense embracing both contract proper and conveyance, and extending beyond the sphere of Property into the relations of domestic life. Contract proper and conveyance, though generally contrasted in jurisprudence, have much in common. If contract in its narrower sense is defined to be the concurrence of two manifestations of will creating a jus in personam, and conveyance the concurrence of two manifestations of will creating a jus in rem, the concurrence of two manifestations of will creating a jus is an element common to both terms of the comparison, and this common element may be denominated in a generic sense a contract. Contract in the narrower sense may then be distinguished as an obligative contract and conveyance as a translative contract, and the latter head will include the contract of marriage, if we continue to employ this expression.
As in respect of property or dominion we find in Roman law the distinction of Quiritary and Bonitary, that is, of civil and gentile, ownership, so in respect of the conjugal relation we find the distinction of Roman or civil marriage (connubium, justae nuptiae, justum matrimonium) and gentile marriage (nuptiae, matrimonium), of which the former alone was valid at civil law (connubium est uxoris jure ducendae facultas, Ulpian, 5, 3; ‘connubium is the capacity of marriage valid by civil law’) and capable of producing patria potestas and agnatio, though the latter produced legitimate children (justi Edition: current; Page:  as opposed to naturales liberi) and cognatio or natural relationship.
Capacity of civil marriage (connubium) is (a) absolute and (b) relative. (a) Only citizens have the absolute capacity of civil marriage, and such Latins and aliens as are specially privileged, § 56: slaves are incapable both of civil and gentile marriage. (b) Capacity of civil marriage is, however, always relative to another person who forms the other party to the union. A citizen only has connubium with a citizen or with such Latins and aliens as are specially privileged; and, before the lex Papia Poppaea was passed, a freeborn citizen (ingenuus) had no connubium with a citizen by manumission (libertinus). Lege Papia cavetur omnibus ingenuis, praeter senatores eorumque liberos libertinam uxorem habere licere, Dig. 23, 2, 23. ‘The lex Papia permits all freeborn citizens, except senators and their children, to marry freedwomen.’
§§ 58-63. The prohibition of marriage between collateral relations, originally perhaps extended as far as there were legal names for the relationship, i. e. as far as the sixth degree, for Tacitus mentions that second cousins were once incapable of intermarriage, sobrinarum diu ignorata matrimonia, Ann. 12, 6; and Livy (20, see Hermes, 4, 372), in a fragment discovered by Krueger, expressly says that marriage was once restricted within this limit. ‘P. Coelius patricius primus adversus veterem morem intra septimum cognationis gradum duxit uxorem. Ob hoc M. Rutilius plebeius sponsam sibi praeripi novo exemplo nuptiarum dicens sedicionem populi concitavit adeo, ut patres territi in Capitolium perfugerent’ (cf. Karlowa, Röm. Rechtsg., p. 175); but though marriages within this limit may still have been regarded as contrary to religion (fas), the law (jus) was gradually relaxed. The prohibition was subsequently reduced to the fourth degree, i. e. to the intermarriage of first cousins (consobrini), Ulpian, 5, 6, with this restriction, however, that if one of the collaterals was only removed by one degree from the common ancestor (stipes communis), he was regarded as a quasi ascendent (loco parentis) and incapable of intermarriage at any degree: thus, a man could not marry his brother’s or sister’s granddaughter, though only related in the fourth degree, Cod. 5, 4, 17. Degrees in the direct line were reckoned by counting the generations or births to which a person owed his descent from an ancestor: thus, a man is one degree from his father, two from his grandfather: in the transverse or collateral line, by adding the degrees which separate each collateral from the common stock; thus, a man is two degrees from his sister, three from his niece.
Constantinus, a. d. 355, restored the ancient law and prohibited Edition: current; Page:  marriage with a brother’s daughter as incestuous, Cod. Theod. 3, 12, 1.
Affinity (affinitas) is the relationship of a person to the kin (cognates) of a spouse. The husband is allied to the kin of the wife, the wife to the kin of the husband; but there is no alliance between the kin of the husband and the kin of the wife. The following are some of the names given to these relationships. In the ascending line the father and mother of the wife or husband are socer and socrus (father-in-law, mother-in-law), and in relation to them the husband of the daughter and wife of the son are gener and nurus (son-in-law, daughter-in-law). In the descending line the children of the spouse are privignus and privigna (step-son, step-daughter), and in relation to them the husband of the mother and the wife of the father are vitricus and noverca (step-father and step-mother). In the collateral line the husband’s brother is levir (brother-in-law), the husband’s sister is glos (sister-in-law). Intermarriage with affines in the direct line, or their ascendents or descendents, was absolutely prohibited; collateral alliance appears to have been no impediment in the time of Gaius, but at a later period marriage with a deceased brother’s wife or a deceased wife’s sister was forbidden, Cod. Theod. 2, 3, 12; Cod. 5, 5, 5.
To the marriage of a filius- or filia-familias the consent of the father was required: but if he withheld it without a reason he could be compelled by the magistrate to give it, and, in the case of a daughter, to provide a dower, Dig. 23, 2, 19: one of several instances in which, as the condition of the validity of a title, when a voluntary action could not be obtained, the legislator substituted a compulsory action, instead of simply declaring the action unnecessary. See § 190, comm.
§ 65. | Aliquando autem euenit ut liberi qui statim ut na|ti sunt parentum in potestate non fiant, ii postea tamen redigantur in potestatem.
Inst. 1, 10, 13.
§ 66. Veluti si Latinus ex lege Aelia Sentia uxore ducta filium procreauerit aut Latinum ex Latina aut ciuem Romanum ex ciue Romana, non habebit eum in potestate; sed si postea causa probata ius 〈Quiritium〉 consecutus fuerit, simul eum in potestate sua habere incipit.
§ 67. Item si ciuis Romanus Latinam aut peregrinam uxorem duxerit per ignorantiam, cum eam ciuem Romanam esse crederet, et filium procreauerit, hic non est in potestate eius, quia ne quidem ciuis Romanus est, sed aut Latinus aut peregrinus, id est eius condicionis cuius et mater fuerit, quia non aliter quisque ad patris condicionem accedit, quam si inter patrem et matrem eius conubium sit; sed ex senatusconsulto permittitur causam erroris probare, et ita uxor quoque et filius ad ciuitatem Romanam perueniunt, et ex eo tempore incipit filius in potestate patris esse. idem iuris est, si eam per ignorantiam uxorem duxerit quae dediticiorum numero est, nisi quod uxor non fit ciuis Romana.
§ 68. Item si ciuis Romana per errorem nupta sit peregrino tamquam ciui Romano, permittitur ei causam erroris probare, et ita filius quoque eius et maritus ad ciuitatem Romanam perueniunt, et aeque simul incipit filius in potestate patris esse. idem iuris est, si peregrino tamquam Latino ex lege Aelia Sentia nupta sit; nam et de hoc specialiter senatusconsulto cauetur. idem iuris est aliquatenus, si ei qui dediticiorum numero est tamquam ciui Romano aut Latino e lege Aelia Sentia nupta sit; nisi quod scilicet qui dediticiorum numero est, in sua condicione permanet, et ideo filius, quamuis fiat ciuis Romanus, in protestatem patris non redigitur.
§ 69. Item si Latina peregrino, cum eum Latinum esse crederet, 〈e lege Aelia Sentia〉 nupserit, potest ex senatusconsulto filio nato causam erroris probare, et ita omnes fiunt ciues Romani et filius in potestate patris esse incipit.
§ 70. Idem constitutum est, si Latinas per errorem peregrinam quasi Latinam aut ciuem Romanam e lege Aelia Sentia uxorem duxerit.
§ 71. Praeterea si ciuis Romanus, qui se credidisset Latinum esse, ob id Latinam 〈uxorem duxerit〉, permittitur ei filio nato erroris causam probare, tamquam 〈si〉 e lege Aelia Sentia uxorem duxisset. Item his qui cum ciues Romani essent, peregrinos se esse credidissent et peregrinas uxores duxissent, permittitur ex senatusconsulto filio nato causam erroris probare; quo facto fiet | uxor ciuis Romana et filius—non solum ad ciuita|tem Romanam peruenit, sed etiam in potestatem patris redigitur.
§ 72. Quaecumque de filio esse diximus, eadem et de filia dicta intellegemus.
§ 73. Et quantum ad erroris causam probandam attinet, nihil interest cuius aetatis filius sit | —|—|—, si minor anniculo sit filius filiaue, causa probari | non potest. nec me praeterit in aliquo rescripto diui Hadriani ita esse constitutum, tamquam quod ad erroris quoque | causam probandam—|—|—imperator—dedit.
§ 74. 〈Sed〉 si peregrinus ciuem Romanam uxorem duxerit, an ex senatusconsulto causam pro|bare possit, quaesitum est.—probare | causam non potest, quamuis ipse— — | hoc ei specialiter concessum est. sed cum peregrinus ciuem Romanam uxorem duxisset et filio nato alias ciuitatem Romanam consecutus esset, deinde cum quaereretur, an causam probare posset, rescripsit imperator Antoninus proinde posse eum causam probare, atque si peregrinus mansisset. ex quo colligimus etiam peregrinum causam probare posse.
§ 75. Ex his quae diximus apparet, siue ciuis Romanus peregrinam siue peregrinus ciuem Romanam uxorem duxerit, eum qui nascitur peregrinum esse. sed siquidem per errorem tale matrimonium contractum fuerit, emendari uitium eius ex senatusconsulto licet 〈secundum〉 ea quae superius diximus. si uero nullus error interuenerit, 〈sed〉 scientes suam condicionem ita coierint, nullo casu emendatur uitium eius matrimonii.
§ 65. It sometimes happens that children when first born are not in their father’s power, but are subsequently brought under it.
§ 66. Thus, under the lex Aelia Sentia a Latin who marries and begets a son of Latin status by a Latin mother, or a citizen of Rome by a Roman mother, has not power over him; but on proof of his case as required by the Edition: current; Page:  statute, he becomes a Roman citizen along with his son, who is henceforth subject to his power.
§ 67. Again, if a Roman citizen marry a Latin or an alien woman, in a mistaken belief that she is a Roman citizen, the son whom he begets is not in his power, not indeed being born a Roman citizen, but a Latin or an alien, that is to say. of the same status as his mother, for a child is not born into the condition of his father unless his parents had capacity of civil marriage: but a senatus-consult allows the father to prove a cause of justifiable error, and then the wife and son become Roman citizens, and the son is thenceforth in the power of the father. The same relief is given when a Roman citizen under a like misconception marries a freedwoman having the status of a surrendered foe, except that the wife does not become a Roman citizen.
§ 68. Again, a female Roman citizen who marries an alien, believing him to be a Roman citizen, is permitted to prove a cause of justifiable error, and thereupon her son and husband become Roman citizens, and simultaneously the son becomes subject to the power of his father. Similar relief is given if she marry an alien as a Latin intending to comply with the conditions of the lex Aelia Sentia, for this case is specially provided for in the senatus consult. Similar relief is given to a certain extent if she marry a freedman having the status of a surrendered foe instead of a Roman citizen, or instead of a Latin, whom she intended to marry according to the provision of the lex Aelia Sentia, except that the freedman Edition: current; Page:  husband continues of the same status, and therefore the son. though he becomes a Roman citizen, does not fall under paternal power.
§ 69. Also a Latin freedwoman married according to the provision of the lex Aelia Sentia to an alien whom she believed to be a Latin, is permitted by the senatusconsult, on the birth of a son, to prove a cause of justifiable error, and thereupon they all become Roman citizens, and the son becomes subject to paternal power.
§ 70. Exactly the same relief is given if a Latin freedman mistakenly marry an alien woman believing her to be a Latin freedwoman, or a Roman citizen, when he intended to comply with the lex Aelia Sentia.
§ 71. Further, a Roman citizen who marries a Latin freedwoman, believing himself to be a Latin, is permitted on the birth of a son to prove the cause of his mistake as if he had married according to the provisions of the lex Aelia Sentia. So, too, a Roman citizen, who marries an alien, believing himself to be an alien, is permitted by the senatusconsult on the birth of a son to prove the cause of the mistake, and then the alien wife becomes a Roman citizen, and the son becomes a Roman citizen and subject to the power of the father.
§ 72. Whatever has been said of a son applies to a daughter.
§ 73. And as to the proof of the cause of error, the age of the son or daughter is immaterial, except that, if the marriage was contracted with an intention to satisfy the requirements of the lex Aelia Sentia, the child must be a year old before the cause can be proved. Edition: current; Page:  I am aware that a rescript of the late Emperor Hadrian speaks as if it was a condition of proof of the cause of error that the son must be a year old, but this is to be explained by the particular circumstances of the case in which this rescript was granted.
§ 74. It is a question whether an alien, who has married a Roman wife, can prove cause of error under the S. C. But when an alien, believed to be a Roman citizen, married a Roman wife, and subsequently to the birth of a son acquired Roman citizenship, on the question arising whether he could prove the cause of error, a rescript of Antoninus Pius decided that he was just as competent to prove as if he had continued an alien: from which may be gathered that an alien is competent to prove the cause of error.
§ 75. Hence it appears that a person born in marriage is an alien if his father was a Roman citizen and his mother an alien, or if his father was an alien and his mother a Roman citizen, though if the marriage was contracted under a mistake, a remedy is supplied by the S. C. as above explained. No relief is given in any case, where the parties did not contract marriage under an error, but were aware of their condition.
Mistake or error sometimes conferred a right which a party could not have acquired if he had not acted under a mistake. Thus, the lender of money to a filiusfamilias without the father’s consent had no legal claim to recover, unless he lent believing the borrower to be independent (sui juris), and possession could not mature by usucapion into ownership, unless it had a bona fide inception, i. e. Edition: current; Page:  unless it commenced in an honest misunderstanding. The relief of error had similarly important results in questions of status. Erroris causam probare seems to mean ‘to make good a title by error,’ i. e. to establish, as title (causa) to relief, a probabilis error or justa ignorantia; i. e. a mistake not due to negligence; for negligence would exclude from relief.
The subjection of a child to patria potestas by erroris causae probatio operated to invalidate a previously executed will, like the subsequent birth (agnatio) of a child in civil wedlock (suus postumus), 2 § 142.
§ 76. Loquimur autem de his scilicet, 〈inter〉 quos conubium non sit; nam alioquin si ciuis Romanus peregrinam cum qua ei conubium est uxorem duxerit, sicut supra quoque diximus, iustum matrimonium contrahitur; et tunc ex his qui nascitur ciuis Romanus est et in potestate patris erit.
§ 77. Item si ciuis Romana peregrino, cum quo ei conubium est, nupserit, peregrinum sane procreat et is iustus patris filius est, tamquam si ex peregrina eum procreasset. hoc tamen tempore 〈ex〉 senatusconsulto, quod auctore diuo Hadriano factum est, etiamsi non fuerit conubium inter ciuem Romanam et peregrinum, qui nascitur iustus patris filius est.
§ 78. Quod autem diximus inter ciuem Romanam peregrinumque—qui | nascitur peregrinum esse, lege Minicia cauetur,〈—〉 |est, ut s—parentis condicionem sequatur.|eadem lege enim ex diuerso cauetur, ut si peregrinam, cum qua ei conubium non sit, uxorem duxerit ciuis Romanus, peregrinus ex eo coitu nascatur. sed hoc maxime casu necessaria lex Minicia; nam remota ea lege diuersam condicionem sequi debebat, quia ex eis, inter quos non est conubium, qui nascitur iure gentium matris condicioni accedit. qua parte autem iubet lex ex ciue Romano et peregrina peregrinum nasci, superuacua uidetur; nam et remota ea lege hoc utique iure gentium | futurum erat.
§ 79. Adeo autem hoc ita est, ut —|—|— non | solum exterae nationes et gentes, sed etiam qui Latini nominantur; sed ad alios Latinos pertinet qui proprios populos propriasque ciuitates habebant et erant peregrinorum numero.
§ 80. Eadem ratione ex contrario ex Latino et ciue Romana, siue ex lege Aelia Sentia siue aliter contractum fuerit matrimonium, ciuis Romanus nascitur. fuerunt tamen qui putauerunt ex lege Aelia Sentia contracto matrimonio Latinum nasci, quia uidetur eo casu per legem Aeliam Sentiam et Iuniam conubium inter eos dari, et semper conubium efficit, ut qui nascitur patris condicioni accedat; aliter uero contracto matrimonio eum qui nascitur iure gentium matris condicionem sequi et ob id esse ciuem Romanum. sed hoc iure utimur ex senatusconsulto, quo auctore diuo Hadriano significatur, ut quoquo modo ex Latino et ciue Romana natus ciuis Romanus nascatur.
§ 81. His conuenienter etiam illud senatusconsultum diuo Hadriano auctore significauit, ut 〈qui〉 ex Latino et peregrina, item contra 〈qui〉 ex peregrino et Latina nascitur, is matris condicionem sequatur.
§ 82. Illud quoque his consequens est, quod ex ancilla et libero iure gentium seruus nascitur, et contra ex libera et seruo liber nascitur.
§ 83. Animaduertere tamen debemus, ne iuris gentium regulam uel lex aliqua uel quod legis uicem optinet, aliquo casu commutauerit.
§ 84. Ecce enim ex senatusconsulto Claudiano poterat ciuis Romana quae alieno seruo uolente domino eius coiit, ipsa ex pactione libera permanere, sed seruum procreare; nam quod inter eam et dominum istius serui conuenerit, eo senatusconsulto ratum esse iubetur. sed postea diuus Hadrianus iniquitate rei et inelegantia iuris motus restituit iuris gentium regulam. ut cum ipsa mulier libera permaneat, liberum pariat.
§ 85. 〈Item e lege —〉 ex ancilla et libero poterant liberi nasci; nam ea lege cauetur, ut si quis cum aliena ancilla quam credebat liberam esse coierit, siquidem masculi nascantur, liberi sint, si uero feminae, ad eum pertineant cuius mater ancilla fuerit. sed et in hac specie diuus Vespasianus inelegantia iuris motus restituit iuris gentium regulam, ut omni modo, etiamsi masculi nascantur, serui sint eius cuius et mater fuerit.
§ 86. Sed illa pars eiusdem legis salua est, ut ex libera et seruo alieno, quem sciebat seruum esse, serui nascantur. itaque apud quos talis lex non est, qui nascitur iure gentium matris condicionem sequitur et ob id liber est.
§ 87. Quibus autem casibus matris et non patris condicionem sequitur qui nascitur, isdem casibus in potestate eum patris, etiamsi is ciuis Romanus sit, non esse plus quam manifestum est. et ideo superius rettulimus quibusdam casibus per errorem non iusto contracto matrimonio senatum interuenire et emendare uitium matrimonii, eoque modo plerumque efficere, ut in potestatem patris filius redigatur.
§ 76. It is to be remembered that we are speaking of a marriage between persons who have not the capacity of entering into a civil marriage with one another. When, however, a Roman citizen takes to wife an alien privileged as I described (§ 56), he contracts a civil marriage, and his son is born a Roman citizen and subject to his power.
§ 77. So if a female Roman citizen marry an alien with whom she has capacity of civil marriage, her son is an alien and a lawful son of his father, just as if his mother had been an alien. At the present day, by a senatusconsult passed on the proposition of the late Emperor Hadrian, even without civil marriage the offspring of a Roman woman and alien is a lawful son of his father.
§ 78. The rule we have stated that when a female Roman citizen marries an alien, the offspring is an alien, if there is no capacity of civil marriage between them, is enacted by the lex Minicia, which also provides that when a Roman citizen marries an alien woman, and there is no capacity of civil marriage between them, their offspring shall be an alien. This Edition: current; Page:  special enactment was required in the first case, as otherwise the child would follow the condition of the mother; for when there is no capacity of civil marriage between parents, their offspring belongs to the condition of his mother by jus gentium. But the part of this law which ordains that the offspring of a Roman citizen and an alien woman is an alien seems to be superfluous, since without any enactment this would be so under the rule of jus gentium.
§ 79. So much so that it is under this rule of jus gentium that the offspring of a Latin freedwoman by a Roman citizen with whom she has no capacity of civil marriage is a Latin, since the statute did not refer to those who are now designated Latins; for the Latins mentioned in the statute are Latins in another sense, Latins by race and members of a foreign state, that is to say, aliens.
§ 80. By the same principle, conversely, the son of a Latin and a Roman woman is by birth a Roman citizen, whether their marriage was contracted under the lex Aelia Sentia or otherwise. Some, however, thought that if the marriage was contracted in accordance with the lex Aelia Sentia, the offspring is a Latin by birth, because on this hypothesis the lex Aelia Sentia and Junia confer a capacity of civil marriage, and a civil marriage always transmits to the offspring the status of the father: if the marriage was otherwise contracted, they held the offspring acquires by jus gentium the status of his mother. However, the law on this point is now determined by the senatusconsult passed on the proposition of the late Emperor Edition: current; Page:  Hadrian, which enacts that the son of a Latin and a Roman woman is under every hypothesis a Roman citizen.
§ 81. Consistently herewith Hadrian’s senatusconsult provides that the offspring of the marriage of a Latin freedman with an alien woman or of an alien with a Latin freedwoman follows the mother’s condition.
§ 82. Consistently herewith the offspring of a female slave and a freeman is by jus gentium a slave, the offspring of a freewoman and a slave is free.
§ 83. We must observe, however, whether the jus gentium in any given instance is overruled by a statute or ordinance having the authority of a statute.
§ 84. For instance, the Sc. Claudianum permitted to a female citizen of Rome having intercourse with a slave with his owner’s consent, to continue herself in virtue of the agreement free, while she gave birth to a slave, her agreement to that effect with the owner being made valid by the senatusconsult. Subsequently, however, the late Emperor Hadrian was induced by the injustice and anomaly of the ordinance to re-establish the rule of jus gentium, that as the mother continues free the offspring follows her status.
§ 85. By a law (the name of which is unknown) the offspring of a female slave by a freeman might be free, for that law provided that the offspring of a freeman by another person’s female slave whom he believed to be free shall be free if they are male, but shall belong to their mother’s proprietor if they are female: but here too the late Emperor Vespasian was moved by the Edition: current; Page:  anomalous character of the rule to re-establish the canon of jus gentium, and declared that the offspring in every case, whether male or female, should be slaves and the property of their mother’s owner.
§ 86. But another clause of that law continues in force, providing that the offspring of a freewoman by another person’s slave whom she knows to be a slave are born slaves, though where this law is not established the offspring by jus gentium follow the mother’s condition and are free.
§ 87. When the child follows the mother’s condition instead of the father’s, it is obvious that he is not subject to the power of the father, even though the father is a Roman citizen: but in some cases, as I mentioned above (§ 67), when a mistake was the occasion of a non-civil marriage being contracted, the senate interferes and purges the defect of the marriage. and this generally has the effect of subjecting the son to the power of the father.
§§ 76, &c. The rules relating to the status of the offspring of parents of unequal status are at first sight chaotic and bewildering, but they are reducible to a few canons. The most general canon is the rule of jus gentium, that children follow the condition of the mother. This is subject to two exceptions.
1. Children born in civil wedlock follow the condition of the father. Cf. §§ 88, 89, 94.
2. Children born in gentile (lawful) wedlock of a Roman mother and alien father follow the condition of the father: this was a special enactment of the lex Minicia.
These rules are stated in the following passages: Lex naturae haec est ut qui nascitur sine legitimo matrimonio matrem sequatur nisi lex specialis aliud inducat, Dig. 1, 5, 24. ‘By the law of nature children not born in civil wedlock follow the status of the mother, in the absence of a special statute to the contrary.’ Connubio interveniente liberi semper patrem sequuntur: non interveniente connubio, matris conditioni accedunt, excepto eo qui ex Edition: current; Page:  peregrino et cive Romana peregrinus nascitur, quoniam lex Minicia (in MS. Mensia) ex alterutro peregrino natum deterioris parentis conditionem sequi jubet, Ulpian, 5, 8. ‘In civil wedlock the children have the status of the father, in the absence of civil wedlock of the mother; except that the children of an alien father and Roman mother are aliens, as the lex Minicia makes the children aliens when either parent is an alien.’
The Sc. Claudianum introduced some special enactments respecting the intercourse of freewomen with slaves, which, however, were subsequently abolished.
a. If a freewoman had intercourse with a slave with the consent of his proprietor she retained her freedom, though degraded to the class of a freedwoman, but her issue was the slave of the proprietor. The slavery of the issue was abolished by Hadrian, § 84.
b. If a freewoman persisted in intercourse with the slave of another person against the will and in spite of the prohibition of the proprietor, after three denunciations on his part she was awarded to him by the magistrate as a slave, and her issue, whether born before or after the adjudication, became slaves of the same person, who also acquired her estate by a species of universal succession. Cf. §§ 91, 160. This terroristic law, which, from the minuteness with which the details are developed (Paulus, 2, 21), appears to have been often applied, was not abrogated till the time of Justinian, Inst. 3, 12, 1.
c. If a freeman had intercourse with a slave whom he supposed to be free by a law the title of which is lost, but which possibly may be the Sc. Claudianum, her male children were born into freedom. This relief of error was abolished by Vespasian as anomalous (inelegans), § 85.
§ 80. There was some ground for the view that a marriage under the lex Aelia Sentia, because it was statutory (regulated by statute), was therefore a civil marriage; and we may regard the senatusconsult of Hadrian, which denied its civil character, as not purely declaratory.
§ 88. Sed si ancilla ex ciue Romano conceperit, deinde manumissa ciuis Romana facta sit et tunc pariat, licet ciuis Romanus sit qui nascitur, sicut pater eius, non tamen in potestate patris est, quia neque ex iusto coitu conceptus est neque ex ullo senatusconsulto talis coitus quasi iustus constituitur.
§ 89. Quod autem placuit, si ancilla ex ciue Romano conceperit, deinde manumissa pepererit, qui nascitur liberum nasci, naturali ratione fit; nam hi qui illegitime concipiuntur, statum sumunt ex eo tempore quo nascuntur; itaque si ex libera nascuntur, liberi fiunt, nec interest ex quo mater eos conceperit, cum ancilla fuerit; at hi qui legitime concipiuntur ex conceptionis tempore statum sumunt.
§ 90. Itaque si cui mulieri ciui Romanae praegnati aqua et igni interdictum fuerit, eoque modo peregrina facta tunc pariat, conplures distinguunt et putant, siquidem ex iustis nuptiis conceperit, ciuem Romanum ex ea nasci, si uero uulgo conceperit, peregrinum ex ea nasci.
§ 91. Item si qua mulier ciuis Romana praegnas ex senatusconsulto Claudiano ancilla facta sit ob id, quod alieno seruo inuito et denuntiante domino eius 〈coierit〉, conplures distinguunt et existimant, siquidem ex iustis nuptiis conceptus sit, ciuem Romanum ex ea nasci, si uero uulgo conceptus sit, seruum nasci eius cuius mater facta esset ancilla.
§ 92. Peregrina quoque si uulgo conceperit, deinde ciuis Romana 〈fiat〉 et tunc pariat, ciuem Romanum parit; si uero ex peregrino secundum leges moresque peregrinorum conceperit, ita uidetur ex senatusconsulto quod auctore diuo Hadriano factum est ciuem Romanum parere, si et patri eius ciuitas Romana donetur.
§ 88. If a female slave conceive by a Roman citizen and become herself by manumission a Roman citizen before giving birth to a son, her son, though a Roman citizen like his father, is not in his father’s power, because he was not begotten in civil wedlock, and there is no senatusconsult which cures the defect of the intercourse in which he was begotten.
§ 89. The decision that when a female slave conceives by a Roman citizen and is manumitted before childbirth, her offspring is born free, is a rule of natural law; for in illegitimate or non-civil conception the status of the offspring depends on the moment of birth, and the mother’s freedom at the moment of birth makes the offspring free, and the status of the father is immaterial; but in statutory or civil conception the status of the child is determined by the time of conception.
§ 90. Accordingly, if a female citizen of Rome being pregnant is interdicted from fire and water, and becoming thus an alien gives birth to a child, many jurists distinguish and hold that her offspring is a Roman citizen if begotten in civil wedlock, but if in promiscuous intercourse, an alien.
§ 91. So if a female citizen of Rome being pregnant is reduced to slavery under the Sc. Claudianum for having intercourse with a slave in spite of the dissent and denunciation of his owner, many jurists make a distinction and hold that her offspring, if conceived in civil wedlock is a citizen of Rome, if conceived in illicit intercourse is a slave of the person who becomes proprietor of the mother.
§ 92. Also if an alien woman conceive in illicit intercourse and afterwards becomes a Roman citizen and gives birth to a child, the child is a Roman citizen; but if she conceived by an alien, to whom she was married in accordance with alien laws and customs, it seems that upon Hadrian’s senatusconsult her offspring is only born a Roman citizen, if the father also has acquired the Roman citizenship.
Supposing the status of a parent changes during the period of gestation (if, for instance, the mother is a slave at the time of conception and free at the time of birth), what effect has this on the status of the issue? The following rule was adopted: in cases where the child follows the status of the father, that is, when it is begotten in civil marriage, the status of the father at the time of conception determines the status of the child; where the child follows the status of the mother, that is, when it is begotten in gentile marriage or in promiscuous intercourse, the status of the child is determined by the status of the mother at the moment of birth. Ulpian, 5, 10. ‘Children born in civil wedlock have their status fixed at the time of conception; children born out of civil wedlock have their status fixed at the time of delivery.’ That is to say, the legal position of the issue is made to follow the analogy of its physical condition. The physical influence of the father terminates with conception: his subsequent health, life, or death, does not affect the physical state of the child; but the child is affected by every change in the physical condition of the mother, her health, life, or death, up to the moment of birth. In imitation of this analogy, the status of the child, when it depended on the status of the father, was not affected by any change in that status subsequent to the period of conception; but when it depended on the status of the mother it varied with every change in that status up to the moment of birth. By the time of Gaius, though the change is not mentioned in the text, this rule was modified in favour of liberty, and it was established that if the mother was free either at the date of conception or at the date of birth or at any intermediate period, the issue was born free. Si libera conceperit et ancilla facta peperit, liberum parit, id enim favor libertatis exposcit. Si ancilla conceperit et medio tempore manumissa sit, rursus facta ancilla peperit, liberum parit, media enim tempora libertati prodesse, non nocere etiam possunt, Paulus, 2, 24, 2. Cf. Inst. 1, 4 pr.
§ 88. The issue of a mother who was a slave at the date of conception but is a citizen at the date of birth, though it is born a Roman citizen, is not subject to patria potestas, because it does not satisfy the definition in § 55, liberi quos justis nuptiis procreavimus, ‘a child begotten in civil wedlock.’
§ 90. Aquae et ignis interdictio was originally a permission to avoid punishment under the penal code by voluntary exile. Subsequently it was employed as a punishment, and under the emperors assumed the form of deportatio in insulam. It was attended with confiscation of goods, and involved loss of civitas but not of libertas, §§ 128, 161.
§ 92. The offspring of a wedded mother who was an alien at the date of conception and is a citizen at the date of birth, according Edition: current; Page:  to the general rule of jus gentium, should be born a Roman citizen; but this would contravene the above-mentioned lex Minicia, which enacted that the issue of a marriage is an alien whenever either parent is an alien, § 78.
§ 93. Si peregrinus sibi liberisque suis ciuitatem Romanam petierit, non aliter filii in potestate eius fient, quam si imperator eos in potestatem redegerit; quod ita demum is facit, si causa cognita aestimauerit hoc filiis expedire. diligentius autem exactiusque causam cognoscit de inpuberibus absentibusque; et haec ita edicto diui Hadriani significantur.
§ 94. Item si quis cum uxore praegnate ciuitate Romana donatus sit, quamuis is qui nascitur, ut supra diximus, ciuis Romanus sit, tamen in potestate patris non fit; idque subscriptione diui Hadriani significatur; qua de causa qui intellegit uxorem suam esse praegnatem, dum ciuitatem sibi et uxori ab imperatore petit, simul ab eodem petere debet, ut eum qui natus erit in potestate sua habeat.
§ 95. Alia causa est eorum qui Latii iure cum liberis suis ad ciuitatem Romanam perueniunt; nam horum in potestate fiunt liberi. quod ius quibusdam peregrinis ciuitatibus datum est uel a populo Romano uel a senatu uel a Cae|sare.
§ 96. — aut maius est Lati|um aut minus: maius est Latium, cum et hi qui decuriones leguntur et ei qui honorem aliquem aut magistratum gerunt ciuitatem Romanam consecuntur; minus Latium est, cum hi tantum qui magistratum uel honorem gerunt ad ciuitatem Romanam perueniunt: idque conpluribus epistulis principum significatur.
§ 93. If an alien has obtained by petition for himself and his children a grant of Roman citizenship, the children do not fall under the power of the father except by express ordinance of the emperor, which he only makes if, on hearing the facts of the case, he deems it expedient for the interest of the children, and he makes a still more careful and minute inquiry if they are below the age of puberty and absent, as an ediot of the Emperor Hadrian intimates.
§ 94. Also if an alien and his pregnant wife receive a grant of Roman citizenship, the child, though a Roman citizen, as above mentioned, is not born in the power of his father according to a rescript of the late Emperor Hadrian; wherefore, if he knows his wife to be pregnant, an alien who petitions the emperor for Roman citizenship for himself and his wife ought at the same time to petition that his son may be subjected to his power.
§ 95. The rule is different for those who with their children are made Roman citizens by right of Latinity, for their children fall under their power; this right has been conceded to certain alien states either by the Roman people, or by the senate or by the emperor.
§ 96. The right of Latinity is either greater or lesser. Greater Latinity is the right whereby those who are chosen decuriones or hold some high office or magistracy acquire Roman citizenship: lesser Edition: current; Page:  Latinity is when only those who are magistrates or hold high office acquire Roman citizenship, a distinction intimated by several imperial rescripts.
The grant of civitas was either made to communities or to individuals. It was a lucrative source of revenue to the emperors. The fees to be paid were not small, Acts of the Apostles, 22, 28, and the new-made civis was regarded as a manumitted slave of the emperor, and was expected to remember the emperor in his will. The philosophic emperor, Marcus Aurelius, under whom Gaius flourished, granted Roman citizenship to all who were ready to pay the fees, data cunctis promiscue civitas Romana, Aurelius Victor, 16. Antoninus Caracalla, a. d. 212-217, after raising from one-twentieth to one-tenth the tax on manumissions and the testamentary succession and legacy duty, which was only levied on Roman citizens, exhausted for a time this source of revenue by conferring at a stroke Roman citizenship on every free subject of the empire: In orbe Romano qui sunt ex constitutione imperatoris Antonini cives Romani effecti sunt, Dig. 1, 5, 17. This was not a general manumission of slaves nor an abolition of the status of Latin or alien, but a grant of citizenship to all existing Latins and aliens, imposing in effect a capitation tax on the individuals, and leaving those orders to be again replenished by subsequent manumissions of Latini and dediticii. The value of the privileges of civis Romanus was gradually declining. The political portions of civitas had been extinguished by the establishment of the empire, and Rome was destined at last to undergo the fate she had inflicted on so many other cities. She was sacked by Alaric, king of the Goths, a. d. 410. She was entered by Genseric, king of the Vandals, and, after a sack of fourteen days, left a heap of ruins, a. d. 455. The splendour of the title of civis Romanus was sadly dimmed before Justinian made it acquirable by every form of manumission.
§ 94. Subscriptio was an imperial rescript written under the petition to which it was an answer: a rescript written on a separate document was called epistola. The latter was addressed to public functionaries, the former to private individuals, and by its connexion with the petition enabled a tribunal to which it was submitted to investigate the truth of the allegations on which it was founded. Cf. § 5, comm.; and see Roby, Private Law, Intr. p. 6, n. 2.
The grant of patria potestas by the Emperor to the new-made citizen, § 93, may be assimilated to the legislative grant of patria potestas in adrogatio. Its different effects may be compared with Edition: current; Page:  the incidents of Naturalization and Denization in English law. Naturalization formerly only effected by act of parliament is retrospective, and puts an alien in exactly the same state as if he had been born in the king’s ligeance, and his son born before the naturalization may inherit: whereas the issue of a Denizen (an alien born who has obtained ex donatione regis letters patent to make him an English subject) cannot inherit to him, but his issue born after may. Blackstone.
§§ 95, 96. Before the recension of the text by Studemund Gaius was supposed to have defined greater Latinity in this section as the right whereby the magistrates of certain towns acquire the Roman franchise along with their wives and children, and lesser Latinity as the right whereby the magistrates themselves acquire the Roman franchise, but not their wives and children. The distinction made by Gaius between these two kinds of Latinity is not found in any other writer (cf. note to Muirhead’s Gaius, h. l.).
The name of a senate in a municipality was ordo decurionum or simply ordo or curia, its members being decuriones or curiales. The office of decurio, which was at one time a coveted distinction, became very burdensome; and in order to make it more acceptable, privileges were from time to time attached to it, as e. g. Latium majus, and in later times legitimatio per oblationem curiae (Inst. 1, 10, 13). (Dig. 50, 2 de decurionibus.)
It is to be noticed that the jus Latii could, according to Gaius, § 95, be constitutionally granted in three ways, either by the people itself (in Comitia), or by the senate (representing the people), or by the Emperor (in whom the power of the people was to a great extent vested).
§ 97. | Non solum tamen naturales liberi secundum ea quae | diximus in potestate nostra sunt, uerum et hi quos adoptamus.
Inst. 1, 11 pr.
§ 98. Adoptio autem duobus modis fit, aut populi auctoritate, aut imperio magistratus, ueluti praetoris.
Inst. 1, 11, 1.
§ 99. Populi auctoritate adoptamus eos qui sui iuris sunt; quae species adoptionis dicitur adrogatio, quia et is qui adoptat rogatur, id est interrogatur, an uelit eum quem adoptaturus sit iustum sibi filium esse; et is qui adoptatur rogatur an id fieri patiatur; et populus rogatur an id fieri iubeat. imperio magistratus adoptamus eos qui in potestate parentum sunt, siue primum gradum liberorum optineant, qualis est filius et filia, siue inferiorem, qualis est nepos neptis, pronepos proneptis.
Inst. l. c.
§ 100. Et quidem illa adoptio quae per populum fit nusquam nisi Romae fit; at haec etiam in prouinciis apud praesides earum fieri solet.
§ 101. Item per populum feminae non adoptantur, nam id magis placuit; apud praetorem uero uel in prouinciis apud proconsulem legatumue etiam feminae solent adoptari.
§ 102. Item inpuberem apud populum adoptari aliquando prohibitum est, aliquando permissum est; nunc ex epistula optimi imperatoris Antonini quam scripsit pontificibus, si iusta causa adoptionis esse uidebitur, cum quibusdam condicionibus permissum est. apud praetorem uero et in prouinciis apud proconsulem legatumue cuiuscumque aetatis〈personas〉 adoptare possumus.
Inst. 1, 11, 3.
§ 103. Illud utriusque adoptionis commune est, quod et hi qui generare non possunt, quales sunt spadones, adoptare possunt.
Inst. 1, 11, 9.
§ 104. Feminae uero nullo modo adoptare possunt, quia ne quidem naturales liberos in potestate habent.
Inst. 1, 11, 10.
§ 105. Item si quis per populum siue apud praetorem uel apud praesidem prouinciae adoptauerit, potest eundem alii in adoptionem dare.
§ 106. Sed et illa quaestio, an minor natu maiorem natu adoptare possit, utriusque adoptionis communis est.
§ 107. Illud proprium est eius adoptionis quae per populum fit, quod is qui liberos in potestate habet, si se adrogandum dederit, non solum ipse potestati adrogatoris subicitur, sed etiam liberi eius in eiusdem fiunt potestate tamquam nepotes.
Inst. 1, 11, 11.
§ 97. Not only natural children are subject, as mentioned, to paternal power, but also adoptive children.
§ 98. Adoption is of two forms, adoption by authority of the people and adoption by the executive command of a magistrate, as of the praetor.
§ 99. Authority of the people is required for the adoption of an independent person, and this form is called adrogation, because the adopter is interrogated whether he wishes to have the Edition: current; Page:  person adopted for his lawful son, the person adopted is interrogated whether he thereto consents, and the people (in comitia) is interrogated whether such is its command. The executive command of a magistrate is the proceeding for the adoption of a person subject to the power of an ascendent, whether a descendent in the first degree, as a son or daughter, or in a remoter degree, as a grandson or granddaughter, great-grandson or great-granddaughter.
§ 100. Adoption by vote of the people (in comitia) can only be solemnized at Rome, the other process is usually effected in the provinces in the court of the president.
§ 101. Adoption by vote of the people is inapplicable to females, as has finally been ruled; but females may be adopted by the other mode of adoption, at Rome in the court of the praetor, in provinces of the people it is usually effected in the court of the proconsul, in provinces of the emperor in the court of the legate.
§ 102. The legislative adoption of a child below the age of puberty by vote of the people was at one time prohibited, at another permitted; at the present day, by the epistle of the Emperor Antoninus addressed to the pontifices, on evidence of a just cause of adoption, it is permitted, subject to certain conditions. In the court of the praetor at Rome, in the court of the proconsul in a province of the people, and in the court of the legate in a province of the emperor, a person of any age may be adopted.
§ 103. Both forms of adoption agree in this point, that persons incapable of procreation by Edition: current; Page:  natural impotence are permitted to adopt.
§ 104. Women cannot adopt by either form of adoption, for even their natural children are not subject to their power.
§ 105. He who has adopted a person either by the vote of the people or by the authority of the praetor or of the president of a province, can transfer his adoptive son to another adoptive father.
§ 106. Whether a younger person can adopt an older is a disputed point in both forms of adoption.
§ 107. It is peculiar to adoption by the vote of the people 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.
Adrogation, or the adoption of an independent person (paterfamilias), reducing him to a dependent status (filiusfamilias), was a legislative act of the Comitia Curiata; but though, as representing the people, this assembly was legally omnipotent, it was unconstitutional to deprive a person either of the citizenship or of domestic independence without his own consent. We learn from Cicero the formula by which this assent was ascertained. De Domo, 29. ‘As it is an immemorial rule of law that no citizen of Rome shall be deprived of the independent position of paterfamilias or of citizenship against his will, as you have had occasion of learning by your own experience, for I suppose that, illegal as your adrogation was in all points, you at least were asked whether you consented to become subject to the adrogator’s power of life and death as if you were his son;—if you had opposed or been silent, and the thirty Curiae had nevertheless passed the law, tell me, would their enactment have had any binding force?’ The form in which the law was proposed to the legislative assembly is given by Gellius, 5, 19. ‘Adrogation is the subjection of an independent person with his own consent to the power of a superior, and is not transacted in the dark or without Edition: current; Page:  investigation. The Comitia Curiata, at which the College of Pontiffs is present, are convened, and examine whether the age of the adrogator does not rather qualify him for the natural procreation of children, and whether the estate of the adrogatus is not the object of fraudulent cupidity, and an oath, said to be framed by Q. Mucius, the high pontiff, has to be taken by the adrogator. . . . Adrogation, the name given to this transmit into a strange family, is derived from the interrogation of the legislative body, which is in the following form: ‘May it please you to will and command that L. Valerius shall be as completely by law and statute the son of L. Titius as if he were born of L. Titius and his wife, and that L. Titius shall have power of life and death over L. Valerius as a father has over his son. Do you will and command as I have said, Quirites?’ Those who voted in affirmation of the measure proposed said (at least in other similar assemblies): Uti rogas; those who voted against it said: Antiquo. Women were originally incapable of being adrogated, § 101, because they were incapable of appearing in the Comitia Curiata, Quoniam cum feminis nulla comitiorum communio est, Gellius, ibid.; but this incapacity vanished as soon as the lex Curiata, as form of adrogation, was superseded by imperial rescript (principale rescriptum), Gaius in Dig. 1, 7, 21. Women, being incapable of exercising parental power, could not, properly speaking, adrogate, § 104; but they were permitted, under Diocletian a. d. 291, by quasi adrogation to establish the same legal relation as existed between a mother and her natural children, Cod. 8, 48, 5; Inst. 1, 11, 10. An adrogator was usually required to be sixty years old, Dig. 1, 7, 15, 2, and to be eighteen years (plena pubertate) older than adrogatus, Inst. 1, 11, 4. Originally a youth must have attained the age of puberty before he could be adrogated, § 102, and Gellius, ibid.: Sed adrogari non potest nisi jam vesticeps . . . quoniam tutoribus in pupillos tantam esse auctoritatem potestatemque fas non est, ut caput liberum fidei suae commissum alienae ditioni subiciant. ‘A youth cannot be adrogated before he has assumed the toga virilis, because a guardian has no authority or power to subject an independent person, with whose charge he is entrusted, to the domination of a stranger.’ The purple-edged praetexta was generally laid aside by boys along with the bulla aurea which they wore round their neck, on the first Liberalia, the 17th March, Ovid, Fasti, 3, 771, after the completion of their fourteenth year. Females did not lay aside the praetexta till their marriage. Antoninus Pius permitted the adrogation of youths below the age of puberty (impubes, investis) under certain conditions; e. g. the adrogator entered into a stipulation, originally with a public slave, in later times with a public notary (tabularius), in the event of the Edition: current; Page:  death of adrogatus before the age of puberty, to restore his estate to his natural heirs, and, in the event of emancipation, to adrogatus himself: and adrogatus became entitled to a fourth part of the estate of adrogator (called quarta Antonini), of which he could not be deprived by disinherison or by unmerited emancipation, § 102; cf. Inst. 1, 11, 3. In the time of Justinian the adrogator only acquired a usufruct for life in the property, subject to which the adrogatus was owner of it; that is to say, the property of adrogatus was transformed by adrogation into peculium adventicium. Cf. 3, 84, comm.
The form of simple adoption is explained below, § 134, under the head of dissolution of patria potestas, for as patria potestas is vested by adoption in the adoptive father, so it is divested from the natural father.
The effect of adoption was much reduced by a constitution of Justinian. If the adoption was by an ascendent, maternal or paternal, it retained its old character: but if it was by a stranger it neither created nor extinguished patria potestas; it did not transfer the adopted son from his old family into a new family, and therefore it neither destroyed nor created any tie of agnation: its only effect was to give to the adopted son, in the event of intestacy, a claim against the estate of the intestate adoptive father; Cod. 8, 47, 10; Inst. 1, 11, 2 and 3, 1, 14.
§ 108. Nunc de his personis uideamus quae in manu nostra sunt. quod | et ipsum ius proprium ciuium Romanorum est.
§ 109. Sed in potestate quidem et masculi et feminae esse solent; in manum autem feminae tantum conueniunt.
§ 110. Olim itaque tribus modis in manum conueniebant, usu farreo coemptione.
§ 111. Usu in manum conueniebat quae anno continuo nupta perseuerabat; quia enim ueluti annua possessione usucapiebatur, in familiam uiri transibat filiaeque locum optinebat. itaque lege xii tabularum cautum est, ut si qua nollet eo modo in manum mariti conuenire, ea quotannis trinoctio abesset atque eo modo 〈usum〉 cuiusque anni interrumperet. sed hoc totum ius partim legibus sublatum est, partim ipsa desuetudine oblitteratum est.
§ 112. Farreo in manum conueniunt per quoddam genus sacrificii, quod Ioui Farreo fit; in quo farreus panis adhibetur, unde etiam confarreatio dicitur; conplura praeterea huius iuris ordinandi gratia cum certis et sollemnibus uerbis praesentibus decem testibus aguntur et fiunt. quod ius etiam nostris temporibus in usu est; nam flamines maiores, id est Diales Martiales Quirinales, item reges sacrorum nisi ex farreatis nati non leguntur; ac ne ipsi quidem sine confarreatione sacerdotium habere possunt.
§ 113. Coemptione uero in manum conueniunt per mancipationem, id est per quandam imaginariam uenditionem; nam adhibitis non minus quam v testibus ciuibus Romanis puberibus, item libripende, emit is mulierem, cuius in manum conuenit.
§ 114. Potest autem coemptionem facere mulier non solum cum marito suo, sed etiam cum extraneo; scilicet aut matrimonii causa facta coemptio dicitur aut fiduciae; quae enim cum marito suo facit coemptionem, 〈ut〉 apud eum filiae loco sit, dicitur matrimonii causa fecisse coemptionem; quae uero alterius rei causa facit coemptionem aut cum uiro suo aut cum extraneo, ueluti tutelae euitandae causa, dicitur fiduciae causa fecisse coemptionem:
§ 115. quod est tale: si qua uelit quos habet tutores deponere et alium nancisci, illis auctoribus coemptionem facit; deinde a coemptionatore remancipata ei cui ipsa uelit, et ab eo uindicta manumissa incipit eum habere tutorem, 〈a〉 quo manumissa est; qui tutor fiduciarius dicitur, sicut inferius apparebit.
§ 115 a. Olim etiam testamenti faciendi gratia fiduciaria fiebat coemptio; tunc enim non aliter feminae testamenti faciendi ius habebant, exceptis quibusdam personis, quam si coemptionem fecissent remancipataeque et manumissae fuissent: sed hanc necessitatem coemptionis faciendae ex auctoritate diui Ha|driani senatus remisit.
§ 115 b. —| femina—fi|duciae causa cum uiro suo fecerit coemptionem, nihilo minus filiae loco incipit esse; nam si omnino qualibet ex causa uxor in manu uiri sit, placuit eam filiae iura nancisci.
§ 108. Let us next proceed to consider what persons are subject to the hand, which also relates to law quite peculiar to Roman citizens.
§ 109. Power is a right over males as well as females: hand relates exclusively to females.
§ 110. In former days there were three modes of becoming subject to hand, use, confarreation, coemption.
§ 111. Use invested the husband with right of hand after a whole year of unbroken cohabitation. Such annual possession operated a kind of usucapion, and brought the wife into the family of the husband, where it gave her the Edition: current; Page:  status of a daughter. Accordingly, the law of the Twelve Tables provided that a wife who wished to avoid subjection to the hand of the husband should annually absent herself three nights from his roof to bar the annual usucapion: but the whole of this law has been either partly abolished by statute, or partly obliterated by mere disuse.
§ 112. Confarreation, another mode in which subjection to hand originates, is a sacrifice offered to Jupiter Farreus, in which they use a cake of spelt, whence the ceremony derives its name, and various other acts and things are done and made in the solemnization of this disposition with a traditional form of words, in the presence of ten witnesses: and this law is still in use, for the functions of the greater flamens, that is, the flamens of Jove, of Mars, of Quirinus, and the duties of the ritual king, can only be performed by persons born in marriage solemnized by confarreation. Nor can such persons themselves hold a priestly office if they are not married by confarreation.
§ 113. In coemption the right of hand over a woman attaches to a person to whom she is conveyed by a mancipation or imaginary sale: for the man purchases the woman who comes into his power in the presence of at least five witnesses, citizens of Rome above the age of puberty, besides a balance holder.
§ 114. By coemption a woman may convey herself either to a husband or to a stranger, that is to say there are two forms of coemption, matrimonial and fiduciary. A coemption with a husband in order to acquire the status of daughter in his house is a matrimonial Edition: current; Page:  coemption: a coemption for another purpose, whether with a husband or with a stranger, for instance, for avoiding a guardianship, is a fiduciary coemption.
§ 115. This is accomplished by the following process: the woman who desires to set aside her present guardians and substitute another makes a coemption of herself to some one with their sanction: thereupon the party to this coemption remancipates her to the person intended to be substituted as guardian, and this person manumits her by the form of vindicta, and in virtue of this manumission becomes her guardian, being called a fiduciary guardian, as will hereafter be explained.
§ 115 a. In former times testamentary capacity was acquired by fiduciary coemption, for no woman was competent to dispose of her property by will, with the exception of certain persons, unless she had made a coemption, and had been remancipated and then manumitted: but this necessity of coemption was abolished by a senatusconsult made on the motion of Hadrian, of divine memory.
§ 115 b. Even if a woman makes only a fiduciary coemption with her husband, she acquires the status of his daughter, for it is held that from whatever cause a woman is in the hand of her husband, she acquires the position of his daughter.
In early Roman law a woman on marriage necessarily passed out of her own agnatic family into that of her husband, taking the place of a filiafamilias in it. If her husband was paterfamilias, she came into his hand, if he was filiusfamilias into that of his father. This power (manus) was the same in its nature as patria potestas. Edition: current; Page:  By manus the husband, or the husband’s father, had power of life and death over the wife, Livy, 39, 18; Tac. Ann. 13, 32; and all the property of the wife, even more absolutely than by the common law of English jurisprudence, vested in the husband or his paterfamilias, 2 § 98.
The patriarchs of the Roman nation could probably not conceive of the conjugal union as disjoined from manus. Yet at a very early period of Roman history these were recognized as separable, and in later times they were almost universally dissociated, and wedlock was unaccompanied by manus. In a marriage celebrated without confarreation and without coemption before the expiration of the first year of cohabitation, there was civil wedlock without manus, and the Twelve Tables provided a method (trinoctio abesse) by which this state could be indefinitely prolonged, § 111: and as soon as gentile marriages were recognized by the law the Romans were still more familiarized with the spectacle of lawful matrimony without manus. As the ages advanced the wife acquired more and more independence; manus was almost obsolete in the time of Gaius, and it has quite vanished from the legislation of Justinian. (For a detailed account of the law of marriage see Sohm, pp. 470-498.)
Confarreation was a form of marriage which made the issue eligible for certain high sacerdotal functions, and may therefore be regarded as characteristic of the patrician caste. Originally it probably produced marital power in its full extent; but when Augustus, b. c. 10, after a vacancy of seventy-five years, renewed the priesthood of Jove (flaminium diale) he limited by statute the legal effect of confarreation in that particular instance, § 136; and Tiberius, a.d. 23, extended the limitation to all future cases of confarreation, Tac. Ann. 4, 16. Henceforth it only operated a change of family in respect of sacred rites (sacra): the woman ceased to have the domestic gods and domestic worship of her father, and took in exchange the domestic gods and domestic worship of her husband. But in secular matters her family was unchanged: she remained, if filiafamilias, subject to patria potestas, and did not become quasi filiafamilias in the household of her husband: her old ties of agnation in her father’s family were not snapped, and no new ties of agnation in her husband’s family were acquired. Divorce (diffarreatio, Festus, s.v.) was almost impossible, and this indissolubility of the connexion contributed to the unpopularity of confarreatio. Moreover, it was a religious ceremonial, requiring the presence of the pontifex maximus and flamen dialis, and as such it vanished with vanishing paganism. The ten witnesses apparently represented the ten curiae of which the tribe was composed, or the ten gentes of which the curia was composed, or, if the decimal division continued further, the ten families of which the gens was composed.Edition: current; Page: 
The purchase of the wife by the husband, a widespread custom in a primitive state of society, was no doubt one of the ways in which Roman marriage originated. The exact nature of Coemption, in consequence of the defective state of the Veronese manuscript, must, however, remain a mystery. Coemption was a form of mancipation, § 113, but in virtue of the provision of the Twelve Tables, Cum nexum faciet mancipiumque, uti lingua nuncupassit, ita jus esto, the nature of every mancipation depended on the mancipii lex, the accompanying nuncupation or verbal declaration of its condition, intentions, purposes; as in English conveyancing the nature of a grant is limited and determined by the habendum and tenendum of the deed. We are informed that in coemption, the formula was not the same as in other mancipations, § 123, but we are not informed what it was. Even in Cicero’s time many advocates were ignorant of the legal effect of a coemption because they were ignorant of the precise terms of the formula in which it was concluded, De Orat. 1, 56. The word itself may suggest a conjecture that it was a conveyance of the husband to the wife as well as of the wife to the husband; and this is supported by Servius on Georgics, 1, 34, and Isidorus, 5, 24, no great authorities, but who quoted apparently from Ulpian: ‘An ancient nuptial form wherein husband and wife made a mutual purchase, to bar the inference that the wife became a slave.’ Plutarch informs us that the wife asserted her equality by the terms, Ubi tu Caius, ego Caia, Quaest. Rom. 28: ‘Where thou art master, I am mistress.’ Boethius on Cicero, Topica, 3, 14, quoting from Ulpian, says: ‘The man and woman interrogated one another. He asked her if she wished to be mother of his household; she answered, Yes. She asked him if he wished to be father of her household; he answered, Yes. And thus the woman passed into the hand of the man, and was called the mother of his household, with the status of filiafamilias.’ According to Cicero, the wife was only called materfamilias when subject to hand: Genus est uxor; ejus duae formae; una matrumfamilias, eae sunt, quae in manum convenerunt, altera earum quae tantummodo uxores habentur, Top. 3, 14. Gellius says the same, 18, 6, 7: Tradiderunt matremfamilias appellatam esse eam solam quae in mariti manu mancipioque aut in ejus, in cujus maritus manu mancipioque esset. Boethius (in Cic. Top. 3, 14) further limits the title to a wife who has become subject to manus by coemption: Quae autem in manum per coemptionem convenerant, hae matresfamilias vocabantur, quae vero usu et farreatione, minime, ibid. However this may have been, in one sense the name was a misnomer, for a wife subject to hand was not sui juris (materfamilias), but alieni juris (filiafamilias): and that materfamilias denoted a woman sui juris, whether married or unmarried, as opposed to Edition: current; Page:  a filiafamilias or woman alieni juris, appears from Ulpian (4, 1): Sui juris sunt familiarum suarum principes, id est paterfamiliae itemque materfamiliae. (See Muirhead’s Roman Law, App. B.)
If the wife was subject to the power of her father, she required his sanction before she could make a coemption with her husband. If the wife was independent of parental control, she required the sanction of her guardians, who under the old law would have been her nearest agnates.
Coemption was sometimes employed for other purposes than matrimony, and was then called fiduciary coemption. Sometimes the intention was to extinguish the obligation of onerous sacred rites attached to the estate of an heiress: Jure consultorum ingenio senes ad coemptiones faciendas interimendorum sacrorum causa reperti sunt, Cic. Pro Murena, 12, § 27. ‘Juristic ingenuity invented coemptions with aged men for extinguishing sacred rites.’ Savigny (Verm. Schr. 1, 190) gives the following conjectural explanation of the process. The obligation to the sacra belonged to the Quiritary ownership of the universitas of the woman’s estate. This, by the effect of coemption, vested in the coemptionator, an old man approaching dissolution (senex coemptionalis), with whom a fictitious marriage was contracted, and who took the estate as universal successor. He forthwith dismissed the woman from his manus by remancipation and manumission: and then, according to covenant, restored to her the estate in portions; that is, released from the ritual obligations, which only attached to the universitas. On his death, as Quiritary owner of the empty universitas, the obligation to the rites was extinguished: for the succession (hereditas) to the coemptionator did not pass to the woman, as she by remancipation had ceased to be [such was the hypothesis of Savigny before the discovery of Gaius: instructed by Gaius we must rather say, as mere fiduciary coemption had not the effect of making her] his filiafamilias and sua heres. The phrase senex coemptionalis denotes a slave. From which it may be inferred that a slave, useless for any other purpose, and therefore very cheap, was sometimes bought and manumitted to serve as coemptionator. In such a case the whole transaction would be very inexpensive, if not very decorous. This mode of getting rid of sacred rites is compared by Ihering, § 58, with the institution of a slave as heir to bear the infamy of bankruptcy instead of the deceased testator, 2 § 154. Universal succession was an institution which Roman law only admitted in certain cases, 2 § 98, including the cases of Manus and Adrogatio. If universal succession was required for the purpose of extinguishing the obligation to sacred rites attaching to the estate of an heiress, we might have supposed that Adrogatio would have been a less offensive Edition: current; Page:  mockery than a fictitious marriage (fiduciary coemption); adrogatio, however, was inapplicable, because, as we have seen, up to a late period of Roman law women were incapable of being adrogated. Moreover, the Pontifices, who had a veto on adrogations, were not likely to lend themselves readily to the extinction of sacred rites. (Comments of other modern writers on this subject are noticed in Roby’s Roman Private Law, 1, 71, n. 1.)
At other times Coemption was employed to enable a woman to select a guardian, §§ 115, 195 a. Cic. Pro Murena, 12 § 27. ‘There are many wise legal provisions that juristic ingenuity has defeated and perverted. All women on account of their weakness of judgement were placed by our ancestors under a guardian’s control: jurists invented a kind of guardian subject to female dictation.’ (Cf. Sohm, 103, n. 2.)
The latest employment of Coemption enabled a woman to break the ties of agnation and thus acquire testamentary capacity, § 115 a; Cic. Top. 4, 18. The coemptionator (party to the coemption) in virtue of the manus thereby acquired was able, and by a fiducia or trust was bound, to sell the woman into bondage as if she were filiafamilias: accordingly he remancipated her to a third person, who by manumitting her in accordance with another fiducia became her patron, and as patron, in accordance with the Twelve Tables, §§ 165, 166, her statutory guardian (tutor legitimus), and, as having acted under a fiducia, her fiduciary guardian, § 115. It may occur to us that as coemptio required the sanction of a father or guardian, this process could not be of much use in getting rid of a guardian or defeating the claims of agnatic guardians to a woman’s intestate succession; but it must be remembered that the nearest agnate, who alone was heir and guardian, was a variable person, and that a given nearest agnate might be not indisposed to allow a woman to acquire the free disposition of her property and to defeat the claims of those who, after his death, would be nearest agnates and presumptive heirs. At all events, however indisposed the guardian might be to such a course, a period at last arrived when the auctoritas of the guardian, though still required as a formality, could be extorted, if not yielded voluntarily, by appeal to the magistrate, § 190.
Agnatic guardianship of female wards was abolished by a lex Claudia, § 171, and thus the woman would be free from the control of an interested guardian in the disposition of her property during her lifetime. She would still however have had little more than a life interest until she acquired the power of testation. For when wills could be only executed in the comitia, 2 § 101, she would be excluded from testation, as well as from adrogation, by exclusion from the comitia: and after the introduction of the mancipatory will she Edition: current; Page:  was still barred by her agnates’ indefeasible claims to her reversion. Agnation itself, however, was defeasible by means of coemptio and remancipatio and the consequent capitis minutio; and when the auctoritas of the guardian for these proceedings could be extorted, § 190, the woman had practically acquired power of testation, although its exercise was hampered by a tedious formality, which was not abolished by the emperor Claudius when he abolished agnatic guardianship. It was not till the senatusconsult of Hadrian that the rupture of the ties of agnation by means of coemptio ceased to be necessary to the validity of a woman’s will, § 115 a; 2 §§ 112, 118; though it had probably been previously a mere formality (the woman having power to extort at pleasure the auctoritas of the agnatic guardian) even before the time of Claudius. As we learn from the text coemption had not been required previously in the case of certain privileged women. Cf. §§ 145, 194; 3 § 44; Ulp. 29, 3.
§ 114. Fiducia was a declaration of the trusts of a mancipation, by which the party to whom the mancipation was made undertook to remancipate under certain conditions. Besides its use in coemption, it was employed, as we shall see presently, in emancipation and adoption, and was the earliest form of constituting the contracts of deposit and mortgage, 2 §§ 59, 60; 3 §§ 90, 91, comm.
The pactum fiduciae, or agreement by which the conditions or trusts were defined, must not be identified with nuncupatio. Nuncupatio forms an integral part of Mancipatio, and what was declared in it would constitute a title under the law of the Twelve Tables. Pactum fiduciae, on the other hand, never coalesces with Mancipatio, but remains a separate adjunct, originally only morally binding on the transferee, but afterwards forming an obligation of jus gentium, and affording ground to support a bonae fidei actio. Herein Mancipatio is contrasted with Tradition and the dispositions of natural law. Conventions accompanying Tradition unite with it, and form a single consolidated disposition; and the pacts annexed (pacta adjecta) to any contract of natural law (venditio, conductio, mandatum, &c.) become integral parts thereof, and are enforced by the action brought on the principal contract. Stipulatio, as a civil disposition, seems to have originally resembled Mancipation in this respect: at least it was a late period of the law when the rule was clearly established that: Pacta incontinenti facta stipulationi inesse creduntur, Dig. 12, 1, 40, i. e. Pacts made contemporaneously with a stipulation are deemed to be portions of the stipulation. Savigny, § 268. It is true that a Pactum adjectum respecting interest and annexed to the gentile disposition Mutuum could not be enforced by an action brought upon the Mutuum: but that was a consequence of the nature of the action (condictio certi) whereby Mutuum was enforced, and which Edition: current; Page:  could not embrace any sum beyond the original subject of the Mutuum; 3 §§ 90, 91, comm.
§ 116. Superest ut exponamus quae personae in mancipio sint.
§ 117. Omnes igitur liberorum personae siue masculini siue feminini sexus quae in potestate parentis sunt mancipari ab hoc eodem modo possunt, quo etiam serui mancipari possunt.
§ 118. Idem iuris est in earum personis quae in manu sunt; | — coemptionatoribus eodem modo possunt |—apud coemptionatorem fi|liae loco sit—nupta sit, — nihilo minus etiam quae ei nupta non sit nec ob id filiae loco sit, ab eo mancipari possit.
§ 118 a. Plerumque 〈uero tum〉 solum et a parentibus et a coemptionatoribus mancipantur, cum uelint parentes coemptionatoresque 〈ex〉 suo iure eas personas dimittere, sicut inferius euidentius apparebit.
§ 119. Est autem mancipatio, ut supra quoque diximus, imaginaria quaedam uenditio; quod et ipsum ius proprium ciuium Romanorum est, eaque res ita agitur: adhibitis non minus quam quinque testibus ciuibus Romanis puberibus et praeterea alio eiusdem condicionis, qui libram aeneam teneat, qui appellatur libripens, is qui mancipio accipit, aes tenens ita dicit: hvnc ego hominem ex ivre qviritivm mevm esse aio isqve mihi emptvs esto hoc aere aeneaqve libra; deinde aere percutit libram idque aes dat ei a quo mancipio accipit quasi pretii loco.
§ 120. Eo modo et seruiles et liberae personae mancipantur; animalia quoque quae mancipi sunt, quo in numero habentur boues, equi, muli, asini; item praedia tam urbana quam rustica quae et ipsa mancipi sunt, qualia sunt Italica, eodem modo solent mancipari.
§ 121. In eo solo praediorum mancipatio a ceterorum mancipatione differt, quod personae seruiles et liberae, item animalia quae mancipi sunt, nisi in praesentia sint, mancipari non possunt; adeo quidem, ut eum 〈qui〉 mancipio accipit, adprehendere id ipsum quod ei mancipio datur necesse sit; unde etiam mancipatio dicitur, quia manu res capitur; praedia uero absentia solent mancipari.
§ 122. Ideo autem aes et libra adhibetur, quia olim aereis tantum nummis utebantur, et erant asses, dupundii, semisses, quadrantes, nec ullus aureus uel argenteus nummus in usu erat, sicut ex lege xii tabularum intellegere possumus; eorumque nummorum uis et potestas non | in numero erat sed in pondere—as|ses librales erant, et dupundii—|; unde etiam dupundius dictus est quasi duo pondo, quod nomen adhuc in usu retinetur. semisses quoque et quadrantes pro rata scilicet portione ad pon|dus examinati erant —qui dabat olim | pecuniam, non numerabat eam, sed appendebat; unde serui quibus permittitur administratio pe|cuniae dispensatores appellati sunt et—|
§ 123. —coemptio|—a quidem quae coem|ptionem fac — seruilem condici|onem a—| mancipati mancipataeue seruorum loco con|stituuntur, adeo quidem, ut ab eo cuius in mancipio sunt neque hereditatem neque legata aliter capere possint, quam 〈si〉 simul eodem testamento liberi esse iubeantur sicut iuris est in persona seruorum. sed differentiae ratio manifesta est, cum a parentibus et a coemptionatoribus isdem uerbis mancipio accipiantur quibus serui; quod non similiter fit in coemptione.
§ 116. It remains to examine what persons are held in mancipation.
§ 117. All children, male or female, in the power of their father are liable to be mancipated by their father just as his slaves may be mancipated.
§ 118. A woman in the hand is subject to the same mode of alienation, and may be mancipated by the person who has acquired her by coemption just as a daughter may be mancipated by her father: and although the acquirer of her by coemption otherwise than for the purpose of marriage has not the power of a father over her, nevertheless, though he is not her husband, and therefore has not the status of a father, he can dispose of her by mancipation.
§ 118 a. Almost the sole occasion of mancipation by a parent or by the acquirer of a woman by coemption is when the parent or acquirer by coemption designs to liberate the person mancipated from his lawful control, as will presently be more fully explained.
§ 119. Mancipation, as before stated, is an imaginary sale, belonging to that part of the law which is peculiar to Roman citizens, and consists in the following process: in the presence of not fewer than five witnesses, citizens of Rome above the age of puberty, and another person of the same condition, who holds a bronze balance in his hands and is called the balance holder, the alienee holding a bronze ingot in his hand, pronounces the Edition: current; Page:  following words: This man I claim as belonging to me by right quirtary and be he (or, he is) purchased to me by this ingot and this scale of bronze. He then strikes the scale with the ingot, which he delivers to the mancipator as by way of purchase money.
§ 120. By this formality both slaves and free persons may be mancipated, and also such animals as are mancipable, namely, oxen, horses, mules, and asses: immovables also, urban and rustic, if mancipable, such as Italic lands and houses, are aliened by the same process.
§ 121. The only point wherein the mancipation of land and buildings differs from the mancipation of other things is this, that mancipable persons, whether slaves or free, and animals that are mancipable, must be present to be mancipated: it being necessary that the alienee should grasp the object to be mancipated with his hand, and from this manual prehension the name of mancipation is derived; whereas land and buildings may be mancipated at a distance from them.
§ 122. The reason of using a bronze ingot and a weighing scale is the fact that bronze was the only metal used in the ancient currency, which consisted of pieces called the as, the double as, the half as, the quarter as, and that gold and silver were not used as media of exchange, as appears by the law of the Twelve Tables: and the value of the pieces was not measured by number but by weight. Thus the as was a pound of bronze, the double as two pounds, whence its name (dupondius), which still survives; while the half as and quarter as Edition: current; Page:  were masses defined by weighing those respective fractions of a pound. Accordingly, money payments were not made by tale, but by weight, whence slaves entrusted with the administration of money have been called cashiers.
§ 123. If it is asked in what respect coemptive conveyance differs from mancipation, the answer is this, that coemption does not reduce to a servile condition, whereas mancipation reduces to so completely a servile condition that a person held in mancipation cannot take as heir or legatee under the will of the person to whom he is mancipated, unless he is enfranchised by such will, thus labouring under the same incapacity as a slave: the reason too of the difference is plain, as the form of words employed in mancipation by a parent or previous acquirer by coemption is identical with that used in the mancipation of slaves, but it is not so in coemptive conveyance.
In what respects did domestic bondage (mancipium or mancipii causa) differ from slavery (servitus)? Bondage was an institute of jus civile, slavery an institute of jus gentium, § 52. Bondage was the result of mancipation by a parent or coemptionator, and only a Roman citizen was capable of becoming a bondsman. The proprietor has possession of the slave, the lord has no possession of the bondsman, 2 § 90. The bondsman was civis Romanus, though what became of his political capacities during his bondage is uncertain; and he was liber, though alieni juris; he was free in respect of the rest of the world, he was only a bondsman in respect of the person in whose mancipium he was. Thus the status of mancipium was relative; a man could only be in mancipio in relation to a given domestic lord: whereas the status of slavery was absolute; a man might be a slave without an owner (servus sine domino): for instance, a person condemned for a capital crime, who was called the slave of punishment (servus poenae, Inst. 1, 12, 3), or a slave abandoned (derelictus) by his owner. Accordingly, falling into servitus was maxima capitis diminutio, while falling into mancipii Edition: current; Page:  causa was minima capitis diminutio, § 162. The bondsman had no proprietary rights against his superior, 2 § 86, but he had some of the primordial rights; for instance, he could sue his superior for outrage, § 141; and he was capable of civil wedlock and could beget Roman citizens, though during his bondage his patria potestas was in abeyance, § 135. Release from bondage, as from slavery, was by manumission, § 138, and the manumitter became the patron of the released person, §§ 166, 195 a, but the manumitted bondsman became ingenuus, whereas the manumitted slave became libertinus. Bondage did not exist in the time of Justinian.
§ 119. The libripens must not be dumb, Ulpian, 20, 7: probably because he had to utter the formula preserved by Festus, Raudusculo libram ferito, i. e. to invite the emptor to strike the scale with the ingot, in order to show by the ring that the metal was genuine. Ihering, § 46, n. 708.
§ 120. Praedia Italica. Under the first emperors the body of the Roman world consisted of three members, the imperial city, Rome, Italy, and the provinces, the two former being highly privileged in comparison with the third. After the Social War, 91-88 b. c., all Italy had acquired Roman citizenship, but Italic soil was not a purely local appellation, as jus Italicum was conceded to many provincial cities. Jus Italicum, or Italian privileges, implied (1) a free municipal constitution with elective magistrates (generally called duumviri juri dicundo) possessed of independent jurisdiction; and, what was still more important, (2) immunity from direct taxation, whether in the form of capitation tax (tributum capitis), imposed on all who were not holders of land (tributarii), or in the form of land tax (tributum agri), imposed on holders of land (possessores), and paid in provinces of the people to the aerarium under the name of stipendium, in provinces of the emperor to the fiscus under the name of tributum, 2 § 21. Italic soil was (3) subject to Quiritary ownership (dominium ex jure Quiritium) and acquirable and transferable by usucapion and mancipation. Under the later emperors, as early as the time of Diocletian, the Roman world was equalized, not by the elevation of the depressed members, but by depression of those formerly favoured: Italy was shorn of her privileges, and all the empire became provincial.
§ 122. Chemical analysis shows that the aes of which Roman coins consisted was bronze, a mixture of copper (cuprum), tin, and lead. [English bronze is an alloy composed of ninety-five parts of copper, four parts of tin, and one part of zinc.] Brass, a mixture of copper and calamine (cadmeia) or zinc, was called orichalcum. Silver currency was first introduced b. c. 269. The primitive system of currency was everywhere currency by weight, and every system Edition: current; Page:  of coinage was originally identical with a system of weights, the unit of value being the unit of weight of some selected metal (Jevons, Money, ch. 9). The pieces of which a currency by weight consists are not properly coins, for coins are ingots of which the weight and fineness are certified by the integrity of the designs impressed upon the surfaces of the metal (ibid. ch. 7). Money is legal tender (Mill, Pol. Econ. 12, 7). Legal tender is that which must be tendered by the debtor and accepted by the creditor in discharge of a debt; e. g. in England silver coin is a legal tender only to the amount of forty shillings in any one payment, bronze coins are a legal tender only to the aggregate amount of one shilling. Bank of England notes are a legal tender everywhere in England but at the bank, i. e. are there convertible into gold.
§ 123. As coemptio was a form of mancipatio, how does it happen that manus, the result of coemptio, differs from mancipium, the result of mancipatio? Because, Gaius answers, the formula of words used in the mancipatio that entered into coemptio was specifically different from the formula employed on other occasions of mancipation.
§ 124. Videamus nunc quomodo hi qui alieno iuri subiecti sunt eo iure liberentur.
Inst. 1, 12pr.
§ 125. Ac prius de his dispiciamus qui in potestate sunt.
§ 126. Et quidem serui quemadmodum potestate liberentur, ex his intellegere possumus quae de seruis manumittendis superius exposuimus.
Inst. l. c.
§ 127. Hi uero qui in potestate parentis sunt, mortuo eo sui iuris fiunt. sed hoc distinctionem recipit; nam mortuo patre sane omni modo filii filiaeue sui iuris efficiuntur; mortuo uero auo non omni modo nepotes neptesue sui iuris fiunt, sed ita, si post mortem aui in patris sui potestatem recasuri non sunt. itaque si moriente auo pater eorum et uiuat et in potestate patris 〈sui〉 fuerit, tunc post obitum aui in patris sui potestate fiunt; si uero is, quo tempore auus moritur, aut iam mortuus est aut exiit de potestate 〈patris, tunc hi, quia in potestatem〉 eius cadere non possunt, sui iuris fiunt.
Inst. l. c.
§ 128. Cum autem is cui ob aliquod maleficium ex lege Cornelia aqua et igni interdicitur ciuitatem Romanam amittat, sequitur ut, quia eo modo ex numero ciuium Romanorum tollitur, proinde ac mortuo eo desinant liberi in potestate eius esse; nec enim ratio patitur, ut peregrinae condicionis homo ciuem Romanum in potestate habeat. pari ratione et si ei qui in potestate parentis sit aqua et igni interdictum fuerit, desinit in potestate parentis esse, quia aeque ratio non patitur, ut peregrinae condicionis homo in potestate sit ciuis Romani parentis.
Inst. 1, 12, 1.
§ 129. Quodsi ab hostibus captus fuerit parens, quamuis seruus hostium fiat, tamen pendet ius liberorum propter ius postliminii, quo hi qui ab hostibus capti sunt, si reuersi fuerint, omnia pristina iura recipiunt; itaque reuersus habebit liberos in potestate. si uero illic mortuus sit, erunt quidem liberi sui iuris; sed utrum ex hoc tempore quo mortuus est apud hostes parens, an ex illo quo ab hostibus captus est, dubitari potest. ipse quoque filius neposue si ab hostibus captus fuerit, similiter dicemus propter ius postliminii potestatem quoque parentis in suspenso esse.
Inst. 1, 12, 5.
§ 130. Praeterea exeunt liberi uirilis sexus de parentis potestate si flamines Diales inaugurentur, et feminini sexus si uirgines Vestales capiantur.
§ 131. Olim quoque, quo tempore populus Romanus in Latinas regiones colonias deducebat, qui iussu parentis in coloniam Latinam nomen dedissent, desinebant in potestate parentis esse, quia efficerentur alterius ciuitatis ciues.
§ 124. Let us now examine the modes whereby persons dependent on a superior are freed from their dependence.
§ 125. And, first, let us consider persons subject to power.
§ 126. How slaves are liberated may be intelligible from what we have explained above about servile manumission.
§ 127. Children under paternal power become independent at the parent’s death, subject, however, to this reservation: the death of a father always releases his sons and daughters from dependence: the death of a grandfather only releases his grandchildren from dependence, provided that it does not subject them to the power of their father: for if at the death of the grandfather the father is alive and in his power, the grandchildren, Edition: current; Page:  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.
§ 128. As interdiction from fire and water for an offence against the Cornelian law involves loss of citizenship, such removal of a man from the list of Roman citizens operates, like his death, to liberate his children from his power, for it is inconsistent with civil law that an alien should exercise parental power over a citizen of Rome: conversely, the interdiction from fire and water of a person subject to parental power terminates the power of the parent, because it is a similar inconsistency that a person of alien status should be subject to the parental power of a Roman citizen.
§ 129. Though the hostile capture of the parent makes him a slave of the enemy, the status of his children is suspended by the jus postliminii, whereby on escape from captivity a man recovers all former rights: accordingly, if the father returns he will have his children in his power; if he dies in captivity his children will be independent, but whether their independence dates from the death of the parent or from his capture by the enemy may be disputed. Conversely, if a son or grandson is captured by the enemy, the power of his ascendent is also provisionally suspended by the jus postliminii.
§ 130. Further, a son is liberated from parental power by his inauguration as flamen of Jove, a daughter by her selection for the office of Vestal virgin.
§ 131. Formerly, too, when Rome used to send colonies into the Latin territory, a son who by his parents’ order enrolled his name in a colony ceased to be under parental power, since he was made a citizen of another state.
§ 128. Relegation was a milder form of punishment than deportation, and involved no loss of civitas nor of domestic rights, Inst. 1, 12, 2.
§ 129. Postliminium is the recovery of rights by a person returned from captivity, or the recovery of rights over a person or thing recovered from hostile possession. The word postliminium seems to be derived from pot, the root of potestas or possessio, and limen or stlimen = ligamen, and therefore would denote the bridging over of the interval of captivity by a fiction of continued capacity or possession, or a doorway is bridged over by a lintel (limen).
§ 130. In imitation of the ancient law Justinian enacted that certain dignities should release from patria potestas; for instance, patriciatus and the episcopate, the latter because it made a man spiritual father of all mankind, Novella, 81.
§ 131. The Latini or members of coloniae Latinae were an intermediate class between cives and peregrini. They differed from peregrini in that they had commercium, i. e. capacity of Quiritary ownership with its incidents, and they differed from cives in not having connubium, and consequently being incapable of patria potestas, Cic. Pro Caecina, 35. Cf. § 22, comm. A Roman citizen could only become a Latin with his own consent. Qui cives Romani in colonias Latinas proficiscebantur, fieri non poterant Latini ni erant auctores facti nomenque dederant, Cic. De Domo, 30. ‘Roman citizens who went to Latin colonies did not lose their citizenship without voluntary enrolment among the colonists.’ See also Cic. Pro Balbo, 11.
§ 132. Praeterea emancipatione desinunt liberi in potestate parentum esse. sed filius quidem tribus mancipationibus, ceteri uero liberi siue masculini sexus siue feminini una mancipatione exeunt de parentum potestate; lex enim xii tabularum tantum in persona filii de tribus mancipationibus loquitur his uerbis si pater filivm 〈ter〉 venvm dvit, a patre filivs liber esto. eaque res ita agitur: mancipat pater filium alicui; is eum uindicta manumittit; eo facto reuertitur in potestatem patris; is eum iterum mancipat uel eidem uel alii (sed in usu est eidem mancipari) isque eum postea similiter uindicta manumittit; eo facto rursus in potestatem patris reuertitur; tertio pater eum mancipat uel eidem uel alii (sed hoc in usu est, ut eidem mancipetur), eaque mancipatione desinit in potestate patris esse, etiamsi nondum manumissus sit sed adhuc in causa mancipii. si—|—|—missi—|— (3 uersus in C legi nequeunt.)
Inst. 1, 12, 6; Epit. 1, 6, 3.
§ 132 a. —|—patrono in bonis liberti|— (3 uersus in C legi nequeunt.) —|— feminae una | mancipatione exeunt de patris potestate—|—manumissae fuerint s—|—|—|—
Inst. l. c.
§ 133.—Admonendi autem sumus liberum esse arbitrium et qui filium et ex eo nepotem in potestate habebit, filium quidem de potestate dimittere, nepotem uero in potestate retinere; uel ex diuerso filium quidem in potestate retinere, nepotem uero manumittere, uel omnes sui iuris efficere. eadem et de pronepote dicta esse intellegemus.—
Inst. 1, 12, 7; Gaius in Dig. 1, 7, 28.
§ 134. —|—et duae intercedentes manumissiones proinde fiunt, ac fieri solent cum ita eum pater de potestate dimittit, ut sui iuris efficiatur. deinde aut patri remancipatur, et ab eo is qui adoptat uindicat apud praetorem filium suum esse, et illo contra non uindicante 〈a〉 praetore uindicanti filius addicitur; aut non remancipatur patri, sed ab eo uindicat is qui adoptat, apud quem in tertia mancipatione est; sed sane commodius est patri remancipari: in ceteris uero liberorum personis seu masculini seu feminini sexus una scilicet mancipatio sufficit, et aut remancipantur parenti aut non remancipantur. Eadem et in prouinciis apud praesidem prouinciae solent fieri.
Inst. 1, 12, 8.
§ 135. Qui ex filio semel iterumue mancipato conceptus est, licet post tertiam mancipationem patris sui nascatur, tamen in aui potestate est, et ideo ab eo et emancipari et in adoptionem dari potest. At is qui ex eo filio conceptus est qui in tertia mancipatione est non nascitur in aui potestate. sed eum Labeo quidem existimat in eiusdem mancipio esse cuius et pater sit; utimur autem hoc iure, ut quamdiu pater eius in mancipio sit, pendeat ius eius; et siquidem pater eius ex mancipatione manumissus erit, cadat in eius potestatem; si uero is dum in mancipio sit decesserit, sui iuris fiat.
§ 135 a. | Eadem scilicet—|—nam | ut supra diximus, quod in filio faciunt tres manci|pationes, hoc facit una mancipatio in nepote.
§ 136. —|—|—|—Maximi et | Tuberonis cautum est, ut haec quod ad sacra tantum uideatur in manu esse, quod uero ad ceteras causas proinde habeatur, atque si in manum non conuenisset |—|— potestate parentis liberantur; nec in|terest, an in uiri sui manu sint an extranei, quamuis hae solae loco filiarum habeantur quae in uiri ma|nu sunt.
§ 132. Emancipation also liberates children from the power of the parent, a son being liberated Edition: current; Page:  by three mancipations, other issue, male or female, by a single mancipation; for the law of the Twelve Tables only mentions three mancipations in the case of the son, which it does in the following terms: If a father sell a son three times, the son shall be free from the father. The ceremony is as follows: the father mancipates his son to some one; the alienee manumits him by fictitious vindication, whereupon he reverts into the power of his father; the father again mancipates him to the same or a different alienee, usually to the same, who again manumits him by fictitious vindication, whereupon he reverts a second time into the power of his father; the father then mancipates him a third time to the same or a different alienee, usually to the same, and by this third mancipation the son ceases to be in the power of the father even before manumission, while still in the status of a person held in mancipation. [The alienee or fiduciary father should then remancipate him to the natural father, in order that thereupon the natural father by manumitting him may acquire the rights of patron instead of the fiduciary father.]
§ 132 a. A manumitter of a free person from the state of mancipium has the same rights to the succession of his property as a patron has in respect of the property of his freedman. Women and male grandsons by a son pass out of the power of their father or grandfather after one mancipation; but unless they are remancipated by their fiduciary father, and manumitted by their natural father, the latter has no rights of succession to their property.
§ 133. But it should be noticed that a grandfather who has both a son, and by his son a grandson, in his power, may either release his son from his power and retain the grandson, or retain the son and manumit the grandson, or emancipate both son and grandson; and a great grandfather has a similar latitude of choice.
§ 134. A father is also divested of power over his children by giving them in adoption. To give a son in adoption, the first stage is three mancipations and two intervening manumissions, as in emancipation; after this the son is either remancipated to the father, and by the adopter claimed as son from him by vindication before the praetor, and in default of counterclaim by the natural father is awarded by the praetor to the adoptive father as his son; or without remancipation to the natural father is directly claimed by the adoptive father by vindication from the alienee of the third mancipation (fiduciary father); but it is more convenient to interpose a remancipation to the natural father. In the case of other issue, male or female, a single mancipation suffices, with or without remancipation to the natural father. In the provinces a similar ceremony can be performed before the president of the province.
§ 135. A grandson begotten after the first or second mancipation of the son, though born after the third mancipation, is subject to the power of the grandfather, and may by him be given in adoption or emancipated: a grandson Edition: current; Page:  begotten after the third mancipation is not born in the power of the grandfather, but, according to Labeo, is born in mancipation to the person to whom his father is mancipated. The rule, however, which has obtained acceptance with us is, that so long as the father is in mancipation the status of the child is in suspension, and if the father is manumitted the child falls under his power; if the father dies in mancipation the child becomes independent.
§ 135 a. The rule is the same in the case of a child begotten of a grandson who has been once mancipated, but not yet manumitted; for, as before mentioned, the result of three mancipations of the son is obtained by a single mancipation of the grandson.
§ 136. A wife subjected to the hand of a husband by confarreation is not thereby freed from the power of her father; and this is declared by the senatusconsult of the consuls of Maximus and Tubero respecting the priestess of Jove, according to which she is only in the marital hand as far as the sacra are concerned, the status of the wife being unaffected in other respects by such subjection. Subjection to hand by coemption liberates from the power of the parent, and it is immaterial whether it is a coemption subjecting the woman to the hand of a husband or to the hand of a stranger, although the status of quasi daughter only belongs to a woman in the hand of a husband.
§ 132. The epitome of Gaius, 1, 6, 3, which throws light on this passage, mentions as present at an emancipation, besides the five witnesses and libripens, a seventh person called antestatus, who is also mentioned in the bronze tablet referred to in the remarks Edition: current; Page:  on pignus and fiducia. Book 3, §§ 90, 91, comm. His duty may have been to ask the witnesses whether they were bearing witness to the transaction (antestari). Cf. Roby, Private Law, pp. 180, n. 2, 423, n. 3.
The vindicta or wand used in manumission, as already stated, was the rod or verge symbolizing a lance carried by the parties in a real action, 4 § 13. The status of freedom (libertas) whether as opposed to slavery or to bondage (mancipii causa) was a real right (jus in rem). and therefore a subject to be contested in a vindicatio. Manumission by vindicta was a collusive vindicatio, in other words, an in jure cessio. Cf. Roby, 1, p. 26, n. 1.
The epitome of Gaius (l. c.) calls the person, to whom the son was mancipated by pater naturalis, pater fiduciarius, which implies that the mancipation was accompanied by a fiducia or declaration of trust. The trust would be that the pater fiduciarius should make default or confess in the subsequent in jure cessio.
§ 134. Assuming that in adoption, as in emancipation, the person to whom the son was mancipated was called pater fiduciarius, we find in adoption three fathers in the field, pater naturalis, pater fiduciarius, and pater adoptivus. Remancipation to the natural father added a stage to the process; but is described as more convenient, because it reduced the number of actors from three to two; for it enabled the part of pater fiduciarius to be played by pater adoptivus. It appears from § 135 (cf. however § 141) that though the status of bondage was purely formal, yet perhaps to give an air of reality to the drama, the status was sometimes made to have a certain duration. So when a prince is advanced from the rank of private to that of general, a certain interval is interposed between the intermediate promotions for the sake of decorum, though, the whole proceeding being unreal, all the steps, if the authorities were so disposed, might be compressed into a single day. Ihering, § 46.
The status of paterfamilias or of filiusfamilias being, like other kinds of status, a real right, the claim of a person as filiusfamilias was a matter to be contested in a real action or vindicatio brought against the person in whose possession he was. This would seem the more obvious in primitive times, when probably no distinction was made between patria potestas and dominica potestas, i. e. between paternal power and absolute proprietorship. Such vindicatio was sometimes a matter of contentious (not voluntary) jurisdiction, i. e. of genuine litigation. Cf. Dig. 6. 1, 1, 2, where we are told that the ground of making a claim of this kind must be particularly specified (adfecta causa) in the vindication. The ordinary mode of judicially determining the status of a child in case of dispute was Edition: current; Page:  by a praejudicium, 4 § 44, comm. The father could compel any one, who had possession of his child, to produce him by the interdictum de liberis exhibendis or de liberis ducendis 4 §§ 138-170, comm. In case of dispute between paterfamilias and filiusfamilias inter se, recourse might be had to the extraordinaria cognitio of the magistrate. Sohm’s Inst. § 101.
Justinian simplified the formalities of emancipation and adoption. He allowed the former to be accomplished by a simple declaration of the father before a competent judge or magistrate (Emancipatio Justinianea); and the latter after appearance of all the parties before such a judge, insinuatio, i. e. a memorandum of the transaction in the public records (actis intervenientibus) being in both cases required. Emancipation by imperial rescript had been previously instituted by the Emperor Anastasius (Emancipatio Anastasiana). Imperial rescript was required for effecting an arrogation.
In English law children are enfranchised, and the limited power of the father over their person and property is terminated by two events which did not operate emancipation in Roman law, marriage and arrival at years of discretion, that is, attainment of majority by the completion of twenty-one years of age. At these points, under English law, the empire of the father or other guardian gives place to the empire of reason; whereas neither marriage nor majority released the Roman son or daughter from potestas.
§ 136. Cf. §§ 108-115 b, comm. Q. Aelius Tubero and Paulus Fabius Maximus were consuls b. c. 11, the year in which the office of flamen dialis was re-established. This cannot therefore be the law a. d. 23 referred to by Tacitus, Ann. 4, 16 (see note to Muirhead’s Gaius).
§ 137.—|—|—|— mancipatione desinunt in manu esse, et si ex ea mancipatione manumissae fuerint sui iuris ef|ficiuntur.
§ 137 a. —quae—|—cogere coempti|onatorem potest, ut se remancipet, cui ipsa uel|it—nihilo magis potest cogere, quam et filia patrem. sed filia quidem nullo modo patrem potest cogere, etiamsi adoptiua sit; haec autem 〈uirum〉 repudio misso proinde conpellere potest, atque si ei numquam nupta fuisset.
§ 138. Ii qui in causa mancipii sunt, quia seruorum loco habentur, uindicta censu testamento manumissi sui iuris fiunt.
§ 139. Nec tamen in hoc casu lex Aelia Sentia locum habet. itaque nihil requirimus, cuius aetatis sit is qui manumittit et qui manumittitur; ac ne illud quidem, an patronum creditoremue manumissor habeat. ac ne numerus quidem lege Fufia Caninia finitus in his personis locum habet.
§ 140. Quin etiam inuito quoque eo cuius in mancipio sunt censu libertatem consequi possunt, excepto eo quem pater ea lege mancipio dedit ut sibi remancipetur; nam quodammodo tunc pater potestatem propriam reseruare sibi uidetur eo ipso, quod mancipio recipit. ac ne is quidem dicitur inuito eo cuius in mancipio est censu libertatem consequi, quem pater ex noxali causa [mancipio dedit], ueluti quod furti eius nomine damnatus est, [et eum] mancipio actori dedit; nam hunc actor pro pecunia habet.
§ 141. In summa admonendi sumus aduersus eos quos in mancipio habemus nihil nobis contumeliose facere licere: alioquin iniuriarum tenebimur. ac ne diu quidem in eo iure detinentur homines, sed plerumque hoc fit dicis gratia uno momento, nisi scilicet ex noxali causa mancipentur.
§ 137. A woman subjected to hand by coemption is, like a daughter, released therefrom by one mancipation, and on subsequent manumission becomes independent.
§ 137 a. Between a woman who has entered into a coemption with a stranger and a woman who has entered into a coemption with a husband there is this difference, that the former has the power of compelling the coemptionator to remancipate her to any one she pleases, whereas the latter cannot compel him to do this any more than a daughter can her father. Edition: current; Page:  A daughter, however, has no means of compelling her father to emancipate her even if she is only such by adoption, whereas a wife by sending a message of divorce can compel her husband to release her from his hand, just as if they had never been married.
§ 138. As persons in mancipation are in the position of slaves, manumission by fictitious vindication, by entry on the censor’s register, by testamentary disposition, are the modes by which they acquire independence.
§ 139. But to them the lex Aelia Sentia has no application: no age of the person manumitting or the person manumitted is required; the manumission is subject to no proviso against fraud on the rights of patron or creditors, nor even to the numerical limitation of the lex Fufia Caninia.
§ 140. But even though the assent of the holder in mancipation is withheld, freedom may be acquired by entry on the register of the censor, except when a son has been mancipated by a father with a condition of remancipation, then the father is deemed to have reserved in a way his own power in consequence of the condition that he is to have him back in mancipation; nor can liberty be acquired without the assent of the holder in mancipation by entry on the censor’s register when a delinquent son has been surrendered by his father in consequence of a noxal suit; when, for instance, the father has been condemned in an action for a theft committed by the son, and has by mancipation surrendered his son to the plaintiff, for in this case the plaintiff holds him in lieu of pecuniary damages.
§ 141. Finally, it is to be observed that contumelious treatment of a person held in mancipation is not permitted, but renders liable to an action of outrage; and the status generally is not persistent, but merely formal and momentary, except when it is the consequence of surrender in lieu of damages in an action of trespass.
§ 137. Dissolution of marriage (divortium) could be effected either by the consent of both parties or by the act of one. The message of repudiation (repudium) contained the formula, Tuas res tibi habeto, ‘Take away thy property.’ Mimam illam suam suas res sibi habere jussit, claves ademit, exegit, Cic. Phil. 2, 28. ‘The actress was ordered to pack, deprived of the keys, turned out of the house.’ The lex Julia de adulteriis prescribed a form for repudium, and required the message to be delivered by a freedman of the family, in the presence of seven witnesses above the age of puberty and citizens of Rome. The party who made a causeless repudium, or whose misconduct justified a repudium, was punished by pecuniary losses in respect of dos and propternuptial donations. After much veering legislation under the Christian Emperors, Justinian enacted that a man or woman who divorced without a cause should retire to a cloister and forfeit all his or her estate, one moiety to his or her successors, and the other moiety to the cloister. Nov. 134, 11. But it was not till later times that the Church succeeded in making marriage indissoluble by law.
§ 140. Ihering, § 32, infers from this that the census, like a year of jubilee, freed all but noxal and fictitious bondsmen at the end of five years: and that the Twelve Tables, in limiting a father to three mancipations, disabled him from selling the services of his son for more than fifteen years. As to noxal surrender of filiifamilias see 4 §§ 75-81.
§ 141. Whereas no injuria could be done to a slave. 4 § 222.
§ 142. Transeamus nunc ad aliam diuisionem. nam ex his personis quae neque in potestate neque in manu neque in mancipio sunt quaedam uel in tutela sunt uel in curatione, quaedam neutro iure tenentur. uideamus igitur quae in tutela quae in curatione sint; ita enim intellegemus ceteras personas quae neutro iure tenentur.
Inst. 1, 13 pr.
§ 143. Ac prius dispiciamus de his quae in tutela sunt.
Inst. l. c.
§ 144. Permissum est itaque parentibus liberis quos in potestate sua habent testamento tutores dare. masculini quidem sexus inpuberibus, 〈feminini autem sexus cuiuscumque aetatis sint, et tum quo〉que, cum nuptae sint. ueteres enim uoluerunt feminas, etiamsi perfectae aetatis sint, propter animi leuitatem in tutela esse.
Inst. 1, 13, 3.
§ 145. Itaque si quis filio filiaeque testamento tutorem dederit et ambo ad pubertatem peruenerint, filius quidem desinit habere tutorem, filia uero nihilo minus in tutela permanet; tantum enim ex lege Iulia et Papia Poppaea iure liberorum tutela liberantur feminae. loquimur autem exceptis uirginibus Vestalibus quas etiam ueteres in honorem sacerdotii liberas esse uoluerunt, itaque etiam lege xii tabularum cautum est.
Inst. l. c.
§ 146. Nepotibus autem neptibusque ita demum possumus testamento tutores dare, si post mortem nostram in patris sui potestatem [iure] recasuri non sint. itaque si filius meus mortis meae tempore in potestate mea sit, nepotes ex eo non poterunt ex testamento meo habere tutorem, quamuis in potestate mea fuerint; scilicet quia mortuo me in patris sui potestate futuri sunt.
Inst. l. c.
§ 147. Cum tamen in conpluribus aliis causis postumi pro iam natis habeantur, et in hac causa placuit non minus postumis quam iam natis testamento tutores dari posse, si modo in ea causa sint, ut si uiuis nobis nascantur, in potestate nostra fiant. hos 〈enim〉 etiam heredes instituere possumus, cum extraneous postumos heredes instituere permissum non sit.
Inst. 1, 13, 4.
§ 148. 〈Vxori〉 quae in manu est proinde ac filiae, item nurui quae in filii manu est proinde ac nepti tutor dari potest.
§ 149. Rectissime autem tutor sic dari potest: l. titivm liberis meis tvtorem do. sed et si ita scriptum sit liberis meis uel vxori meae titivs tvtor esto, recte datus intellegitur.
§ 150. In persona tamen uxoris quae in manu est recepta est etiam tutoris optio, id est ut liceat ei permittere quem uelit ipsa tutorem sibi optare, hoc modo: titiae vxori meae tvtoris optionem do. quo casu licet uxori 〈tutorem optare〉 uel in omnes res uel in unam forte aut duas.
§ 151. Ceterum aut plena optio datur aut angusta.
§ 152. Plena ita dari solet, ut proxime supra diximus. angusta ita dari solet—titiae vxori meae tvtoris optionem dvmtaxat semel do, aut dvmtaxat bis do.
§ 153. Quae optiones plurimum inter se differunt. nam quae plenam optionem habet potest semel et bis et ter et saepius tutorem optare; quae uero angustam habet optionem, si dumtaxat semel data est optio, amplius quam semel optare non potest; si dumtaxat bis, amplius quam bis optandi facultatem non habet.
§ 154. Vocantur autem hi qui nominatim testamento tutores dantur datiui, qui ex optione sumuntur optiui.
§ 142. Let us now proceed to another classification: persons not subject to power, nor to hand, nor held in mancipation, may still be subject either to tutelary guardianship or to curatorship, or may be exempt from both forms of control. We will first Edition: current; Page:  examine what persons are subject to tutelary guardianship and curatorship, and thus we shall know who are exempt from both kinds of control.
§ 143. And first of persons subject to tutelary guardianship or tutelage.
§ 144. The law allows a parent to appoint guardians in his will for the children in his power, below the age of puberty, if they are males; whatever their age, and notwithstanding their marriage, if they are females; for, according to our ancestors, even women who have attained their majority, on account of their levity of disposition, require to be kept in tutelage.
§ 145. Accordingly, when a brother and sister have a testamentary guardian, on attaining the age of puberty the brother ceases to be a ward, but the sister continues, for it is only under the lex Julia and Papia Poppaea by title of maternity that women are emancipated from tutelage; except in the case of vestal virgins, for these, even in our ancestors’ opinion, are entitled on account of the dignity of their sacerdotal function to be free from control, and so the law of the Twelve Tables enacted.
§ 146. A grandson or grand-daughter can only receive a testamentary guardian provided the death of the testator does not bring them under parental power. Accordingly, if at the time of the grandfather’s death the father was in the grandfather’s power, the grandchildren, though in the grandfather’s power, cannot have a testamentary guardian, because his death leaves them in the power of the father.
§ 147. As in many other matters after-born children are treated on the footing of children born before the execution of the will, so it is ruled that after-born children, as well as children born before the will was made, may have guardians therein appointed, provided that if born in the testator’s lifetime they would be subject to his power [and self-successors], for such after-born children may be instituted heirs, but not afterborn strangers.
§ 148. A wife in the testator’s hand may receive a testamentary guardian as if she were a daughter, and a son’s wife in the son’s hand as if she were a granddaughter.
§ 149. The most regular form of appointing a guardian is in the following terms: ‘I appoint Lucius Titius guardian to my children’; the form, ‘Be Lucius Titius guardian to my children’—or, ‘to my wife’—is also valid.
§ 150. To a wife in his hand a testator is permitted to devise the selection of her guardian, that is, he may authorize her to choose whom she pleases, in the following terms: ‘To Titia my wife I devise the selection of her guardian’; whereupon she may nominate either a general guardian or a guardian for certain specified matters.
§ 151. The option of a guardian may be limited or unlimited.
§ 152. Unlimited option is usually devised in the form above mentioned; limited option in the following terms: ‘To Titia my wife I devise not more than one option’—or, ‘not more than two options—of a guardian.’
§ 153. The effect of these forms is very different: unlimited option is a power of choosing a guardian an indefinite number of times; Edition: current; Page:  limited option is the right of a single choice, or of two choices, as may happen.
§ 154. A guardian actually nominated by the will of the testator is called a dative guardian; one taken by selection (of the widow) is called an optative guardian.
Having examined those inferiorities of legal capacity which constituted a status, we now proceed to examine certain cases of incapacity of acting independently which, though analogous to the former as belonging to the sphere of unequal rights, were not included by the Romans under the denomination of status. The inferiorities of capacity in infancy, minority, tutelary wardship, curatel, were different in character and not so considerable as those which we have hitherto examined. The diminution of rights in a lapse from independence to curatel was less than the least capitis minutio, and accordingly a prodigal who was interdicted from the administration of his estate and subjected to the control of a curator, was not said to undergo a status mutatio: his patrimony still vested in him, though he was deprived of its administration; whereas adrogatio and in manum conventio divested a person of the capacity of ownership and active obligation: inferior status, in a word, is incapacity of right; wardship and curatel are only incapacities of disposition.
Guardianship is thus defined: Est autem tutela, ut Servius definit, jus ac potestas in capite libero, ad tuendum eum qui propter aetatem se defendere nequit, jure civili data ac permissa, Inst. 1, 13, 1. ‘Guardianship is a right and power over an independent person conferred or authorized by the Civil law for the protection of one who is incapacitated by age for self-defence.’ The duties of the guardian related both to the person and to the property of the ward. In respect of his person, the guardian was charged with the care of his nurture and education: in respect of his property, the guardian’s function was distinguished as either exclusive administration or concurrent interposition of authority (rem gerere et auctoritatem interponere). Up to the age of seven the ward was called infans, 3 § 109, and during this period the guardian acted alone (administratio, negotiorum gestio); after the completion of seven years until the age of puberty (fourteen for males, as the time was ultimately fixed, Edition: current; Page:  twelve for females) the ward acted, and the guardian concurrently gave his sanction (auctoritas). The sanction of the guardian was a legal act of a highly formal character (actus legitimus), by which such legal acts of his ward, as would otherwise have been imperfect, obtained validity. Accordingly the guardian could not give his sanction by letter or through an agent, but had to be present himself for the purpose at the time when the act of the ward was executed, so that he might be a subsidiary party to it. Inst. 1, 21, 2 Tutor autem statim in ipso negotio praesens debet auctor fieri, si hoc pupillo prodesse existimaverit. post tempus vero aut per epistulam interposita auctoritas nihil agit.
The sanction of the guardian was necessary whenever the act of the ward was one which might possibly entail loss, but not otherwise. Cf. 2 §§ 80-85, Inst. l. c. pr. and 1 Auctoritas autem tutoris in quibusdam causis necessaria pupillis est, in quibusdam non est necessaria. ut ecce si quid dari sibi stipulentur, non est necessaria tutoris auctoritas: quod si aliis pupilli promittant, necessaria est: namque placuit meliorem quidem suam condicionem licere eis facere etiam sine tutoris auctoritate, deteriorem autem non aliter quam tutore auctore. unde in his causis, ex quibus mutuae obligationes nascuntur, in emptionibus venditionibus, . . . si tutoris auctoritas non interveniat, ipsi quidem, qui cum his contrahunt, obligantur, at invicem pupilli non obligantur In respect of administration of property the guardian incurred a quasi-contractual obligation, and was accordingly liable to the judicium or actio tutelae.
In the time of Gaius, women continued subject to guardianship after the age of puberty: the functions of the guardian were in their case confined to auctoritas, which in most cases was a mere formality; the power of administration vested in the woman, § 190.
§ 147. For an account of the different classes of Postumi see 2 § 130, comm.
§ 148. In filii manu must be regarded as an inaccurate expression: for filiusfamilias was incapable of all civil rights, including manus, and could only serve as a conduit-pipe by which the right of manus vested in his father.
§ 154. In the Code and Digest of Justinian the term tutor dativus is used to signify a guardian appointed by a magistrate. Cod. 5, 50, 5; Dig. 46, 6, 7.
§ 155. Quibus testamento quidem tutor datus non sit, iis ex lege xii 〈tabularum〉 agnati sunt tutores, qui uocantur legitimi.
Inst. 1, 15 pr.
§ 156. Sunt autem agnati per uirilis sexus personas cognatione iuncti, quasi a patre cognati, ueluti frater eodem patre natus, fratris filius neposue ex eo, item patruus et patrui filius et nepos ex eo. at hi qui per feminini sexus personas cognatione coniunguntur non sunt agnati, sed alias naturali iure cognati. itaque inter auunculum et sororis filium non agnatio est, sed cognatio. item amitae, materterae filius non est mihi agnatus, sed cognatus, et inuicem scilicet ego illi eodem iure coniungor, quia qui nascuntur patris, non matris familiam secuntur.
Inst. 1, 15, 1.
§ 157. Et olim quidem, quantum ad legem xii tabularum attinet, etiam feminae agnatos habebant tutores. sed postea lex Claudia lata est quae, quod ad feminas attinet, 〈agnatorum〉 tutelas sustulit; itaque masculus quidem inpubes fratrem puberem aut patruum habet tutorem, femina uero talem habere tutorem non potest.
§ 158. Sed agnationis quidem ius capitis deminutione perimitur, cognationis uero ius eo modo non commutatur, quia ciuilis ratio ciuilia quidem iura corrumpere potest, naturalia uero non potest.
Inst. 1, 15, 3.
§ 155. 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.
§ 156. Agnates (3 § 10) are persons related through males, that is, through their male ascendents: as a brother by the same father, such brother’s son or son’s son; a father’s brother, his son or son’s son. Persons related through female ascendents are not agnates but simply cognates. Thus, between an uncle and his sister’s son there is not agnation, but cognation: so the son of my aunt, whether she is my father’s sister, or my mother’s sister, is not my agnate, but my cognate, and vice versa; for children are members of their father’s family, not of their mother’s.
§ 157. In former times, the statute of the Twelve Tables made females as well as males wards of their agnates: subsequently a law of the Emperor Claudius abolished this wardship in the case of females: accordingly, a male below the age of puberty has his brother above the age of puberty or his paternal uncle for guardian, but a female cannot have such a guardian.
§ 158. Capitis deminutio extinguishes rights by agnation, while it leaves unaffected rights by cognation, because civil changes can take away rights belonging to civil law (jus civile), but not rights belonging to natural law (jus naturale).
§ 156. As to this definition of agnati see Moyle’s note to Inst. 1, 15, 1. The maxim here enunciated is calculated to give a false idea of the relation of the institutes of jus gentium to those of jus civile. Title by cognation is just as much an institute of positive law as title by agnation, though cognation, or blood-relationship, is in itself a natural and permanent tie, while agnation is an artificial one, and therefore only occasional. The synthesis of title and right in jus Edition: current; Page:  civile may be freakish and capricious, while that in jus gentium may be reasonable and expedient; but both are equally positive institutions, and both are equally mutable and liable to be overruled. Accordingly, the specious-sounding maxim, that revolutions in status or civil condition cannot affect such rights as are annexed to natural titles, crumbles away as soon as we examine it, for we find that it only holds good of the most insignificant change, the minima capitis minutio, 3 § 27, and that maxima and media capitis minutio extinguish title by cognation, which belongs to jus gentium, as well as title by agnation, which belongs to jus civile. Inst. 1, 16, 6.
The truth is, that the effects of a collision of Civil and Natural law fall under two very different classes, which it is important to distinguish.
1. If the command of the civil lawgiver, under the sway of motives financial, political, ethical, or religious, is highly imperious and absolutely compulsive, all natural titles with which it may come in conflict are absolutely void and inoperative: e. g. the Sc. Velleianum, prohibiting suretyship of women, allowed no naturalis obligatio to be produced by any such suretyship: and so with the laws prohibiting gambling and usury.
2. If the command of the civil law is less peremptory and absolute, it may deprive any conflicting natural title of plenary force, and yet leave to it a naturalis obligatio capable of acquiring efficacy by some machinery of positive law; e. g. the Sc. Macedonianum, prohibiting money loans to a filiusfamilias without the sanction of his father, made them irrecoverable by action, and yet the courts recognized in the borrowing filiusfamilias a naturalis obligatio, which was capable of novation, Dig. 46, 2, 19, and a bar to recovery back (condictio indebiti) in case of actual repayment, Dig. 14, 6, 10.
When Justinian consolidated the law of intestate succession and made the right of succession depend on cognation instead of agnation, he made a corresponding change in the obligation of guardianship, which henceforth devolved on cognates instead of agnates, women as formerly, with the exception of mothers and grandmothers, being excluded from the office, Nov. 118, 5.
§ 159. Est autem capitis deminutio prioris status permutatio. eaque tribus modis accidit: nam aut maxima est capitis deminutio, aut minor quam quidam mediam uocant, aut minima.
Inst. 1, 16 pr.
§ 160. Maxima est capitis deminutio, cum aliquis simul et ciuitatem et libertatem amittit; quae accidit incensis, qui ex forma censuali uenire iubentur; quod ius p—|— ex lege —|— qui contra eam legem in urbe Roma do|micilium habuerint; item feminae quae ex senatusconsulto Claudiano ancillae fiunt eorum dominorum quibus inuitis et denuntiantibus cum seruis eorum coierint.
Inst. 1, 16, 1.
§ 161. Minor siue media est capitis deminutio, cum ciuitas amittitur, libertas retinetur; quod accidit ei cui aqua et igni interdictum fuerit.
Inst. 1, 16, 2.
§ 162. Minima est capitis deminutio, cum et ciuitas et libertas retinetur, sed status hominis commutatur; quod accidit in his qui adoptantur, item in his quae coemptionem faciunt, et in his qui mancipio dantur quique ex mancipatione manumittuntur; adeo quidem, ut quotiens quisque mancipetur aut manumittatur, totiens capite deminuatur.
Inst. 1, 16, 3.
§ 163. Nec solum maioribus 〈capitis〉 deminutionibus ius agnationis corrumpitur, sed etiam minima; et ideo si ex duobus liberis alterum pater emancipauerit, post obitum eius neuter alteri agnationis iure tutor esse poterit.
§ 164. Cum autem ad agnatos tutela pertineat, non simul ad omnes pertinet, sed ad eos tantum qui proximo gradu sunt.
§ 159. Capitis deminutio is a change of a former status which occurs in three ways, i. e. it is either greatest, minor or mediate, or least.
§ 160. The greatest capitis deminutio is the simultaneous loss of citizenship and freedom, which happens to those who having evaded inscription on the censorial register are sold into slavery according to the regulations of the census, also under the — law when persons in violation of it make Rome their place of residence, and also under the Sc. Claudianum in case of persistent intercourse on the part of a free woman with another person’s slave in spite of the dissent and denunciation of the owner.
§ 161. Minor or intermediate loss of status is loss of citizenship unaccompanied by loss of liberty, and is incident to interdiction of fire and water.
§ 162. There is the least capitis deminutio retaining citizenship and freedom when a man’s position in the family only is changed, which occurs in adoption, coemption, and in the case of those given in mancipium to be afterwards manumitted, so that after each successive mancipation and manumission a capitis deminutio takes place.
§ 163. Not only by the two greater losses of status are rights of agnation extinguished, but also by the least: accordingly, if one of two children is emancipated, the elder cannot on the father’s decease be guardian to the younger by right of agnation.
§ 164. When agnates are entitled to be guardians, it is not all who are so entitled, but only those of the nearest degree.
§ 160. Ulpian also refers to the penalty incurred by incensi (11, 11 cum incensus aliquis venierit; cf. Cic. Pro Caec. 34, 99). The lex, the name of which is now illegible, may possibly be the lex Aelia Sentia, which by one of its provisions recalled into slavery dediticii, who resided in Rome or within a certain distance from it (§ 27), though there is the difficulty that it would be inaccurate to speak of such freedmen suffering loss of citizenship as well as liberty. Other grounds of reducing to slavery existed at various times, as surrender by the pater patratus to a foreign state for an offence against international law, Livy, 5, 36, or evasion of military service (populus quum eum vendidit qui miles factus non est, Cic. Pro Caec. 34, 11; Ulp. 11, 11), or capture by the enemy, § 129, or condemnation for a capital crime, which made the convict a slave of punishment (servus poenae, Inst. 1, 16, 1), i. e. reduced him to penal servitude, or condemnation of a freedman for ingratitude towards his patron (libertus ingratus circa patronum condemnatus, ibid.) whereupon he forfeited his freedom, or collusion of a freeman in consenting to be sold as a slave on condition of sharing the purchase-money (cum liber homo, major viginti annis, ad pretium participandum sese venundari passus est, Inst. 1, 3, 4). After the price had been paid, the vendor disappeared, the supposed slave recovered his liberty by a liberalis causa, and the purchaser was left without his slave and without his money. The praetor, to check this fraud, allowed the purchaser to defend himself by exceptio doli, and senatusconsulta subsequently enacted, that if the person sold was twenty years old at the time of the sale or partition of the price, he should really become the slave of the purchaser, Dig. 40, 12, 7 pr. 1.
The libertus ingratus would exemplify a fall from the condition of libertinus to that of servus; any of the other instances might be a case of a fall from ingenuus to servus; the fall from ingenuus to libertinus would also be an analogous kind of degradation. Thus by the Sc. Claudianum a freewoman (ingenua) who had commerce with a slave with the consent of his proprietor procreated slaves without forfeiting her own freedom, § 84; she lost status, however, for she became the freedwoman of the proprietor, Paulus, 4, 10, 2; Tac. Ann. 12, 53.
§ 161. Under the category of Civitas, as there are three classes, civis, latinus, peregrinus, so there are three possible degradations, the fall from civis to Latinus, instanced in the emigrant to a Latin colony, § 131; the fall from civis to peregrinus, instanced in the interdiction or deportation of a civis; and the fall from Latinus to peregrinus, instanced when the same events happened to Latinus. A lapse from liber to servus was a dissolution of marriage, for Edition: current; Page:  servus was incapable of matrimony: a lapse from civis to Latinus or peregrinus was a dissolution of civil wedlock (connubium), for this could only subsist between cives; but if both parties consented, they might continue in gentile wedlock (matrimonium), Cod. 5, 17, 1. The confiscation of property or universal succession of the fiscus, which accompanied greatest and minor loss of status, was not an incident of the latter kind of capitis minutio (e.g. it did not happen when civis became Latinus by emigration; and an alien, as a citizen became by deportation, was capable of holding property), but was a special provision of the criminal code. (For an account of the different Roman forms of banishment see Mommsen, Rom. Strafr. 5, pt. 7.)
The political elements of civitas, suffragium and honores, were forfeited by infamy (infamia) or loss of civic honour (existimatio); and hence arises the question whether infamia is to be regarded as a capitis minutio (see, on this subject, Greenidge, Infamia).
Austin, in laying the bases of jurisprudence, has referred to the law of honour to illustrate the difference of positive law from all law not positive; but in Rome the law of honour, as the law of religion in most modern states, was partially taken up into positive legislation. The public sentiments of esteem and disesteem, that is to say, were armed with political sanctions, and thus certain proceedings were discouraged which were not otherwise prohibited by positive law, and the due application of these sanctions was the function of a special organ appointed by the legislator. This organ was the censor, who had both a discretionary power of branding a man with ignominy by an annotation against his name in the civic register (notatio, subscriptio censoria), and, as revisor of the lists of the senate, the knights, and the tribes, enforced the disabilities of infamy by removing the infamous person from any of those bodies. As the Comitia Centuriata, as well as the Comitia Tributa, had in later times been connected with the division into tribes, the tribeless man (aerarius) forfeited his vote and became incapable of military service, Livy, 7, 2. These graver consequences of infamy were not in the discretion of the censor, but governed by strict rules of consuetudinary law (jus moribus introductum). The law of infamia, as established by the censor, came to be also recognized by the praetor in his edict (cf. Dig. 3, 1, 1, 8 Qui edicto praetoris ut infames notantur), who made infamy not only a consequence of condemnation in any criminal trial (publicum judicium), but also of condemnation in certain civil actions founded on delict, such as theft, rapine, outrage, fraud; or on certain contracts, such Edition: current; Page:  as partnership, agency (mandatum), deposit; or on quasi contract, such as guardianship; or of insolvency (bona possessa, proscripta, vendita); or, without any judicial condemnation, was annexed to certain violations of the marriage laws, such as bigamy or the marriage of a widow before the termination of her year of mourning, and to the pursuit of certain professions, such as that of stage-player or gladiator. In some of these latter instances consuetudinary law, as above intimated, inflicted positive sanctions on acts that originally had only been prohibited by the law of honour. In view of these consequences, infamia may at one time have been regarded as capitis minutio. Cicero pro Quinctio speaks of a suit involving existimatio as a causa capitis (cf. pro Rosc. Com. 6), and Tertullian, the father of the Church, who was noted for his knowledge of Roman law, and possibly was identical with the jurist of that name, of whom five fragments are preserved in the Digest, speaks of infamia as capitis minutio, De Spectaculis, 22, Scenicos manifeste damnant ignominia et capitis deminutio. But the political rights of civitas had ceased to be of importance under the emperors, and we are expressly told in the Digest that only death or loss of citizenship can be understood to affect a man’s caput, Modestinus in Dig. 50, 16, 103.
Besides extinguishing the political or public elements of civitas, infamia affected to a certain extent its private elements, both commercium and connubium; the former, as we shall see, in respect of the office of cognitor, 4 § 124 (cf. Dig. 3, 1, de postulando), and the latter in respect of the disabilities of celibacy under the lex Julia, which were not removed by marriage with an infamis. Both these classes of disability had practically vanished even before they were abolished in the time of Justinian.
This seems the proper place to notice certain inequalities of condition, analogous to the old distinctions of status, which grew up subsequently to the time of Gaius in the later ages of Rome, and some of which survived the fall of the Roman empire. From the establishment of the empire the army was caressed by each succeeding despot, and privileges of various kinds were so accumulated on the military service, that the relation of the soldiery to the rest of the world very much resembled the ancient relation of Romanus to peregrinus. The pre-eminence of the military caste was the result of elevation; other unprivileged castes were created by depression. As the new religion grew to political power, zealous legislators were eager to promote its ascendency by the means of political sanctions. Pagans, Jews, heretics, apostates, protestants, papists, were successively frowned upon by the legislator, and for a long season subjected to incapacities and disabilities as great as, or greater than, Edition: current; Page:  those which weighed upon infames: until by a change in political conceptions these inequalities of right have been again levelled and almost obliterated in most of the codes of modern Europe. See also the remarks on Colonatus, 3 § 145.
§ 162. In the category of domestic position there are three classes, (1) sui juris, or paterfamilias and materfamilias; (2) filiusfamilias and filiafamilias; and (3) mancipium: but there are only two possible degradations, (1) from sui juris to alieni juris, which occurs in adrogation and the in manum conventio of a woman previously independent; and (2) from filius- or filiafamilias to mancipium, which occurs in noxal surrender, in emancipation, in adoption as implying mancipation, and in the remancipation of a woman by her husband or the person who held her in manu in virtue of a fiduciary coemption. The descent from sui juris to mancipium cannot occur, because the only persons capable of passing into the condition of mancipium by the process of mancipation were filius- and filiafamilias and women in manu, i. e. persons already alieni juris.
In the exposition of capitis minutio, and particularly of the third and last kind, I have adopted the theory of Savigny as being the most tenable, and forming the most harmonious system of legal conceptions. I must now briefly notice an opposing theory, and the objections that may be raised against that of Savigny. Some expositors hold that capitis minutio minima did not necessarily and essentially involve any degradation, any downward step on the ladder of status, but might be merely a horizontal movement on the same platform, a transit from family to family, a disruption of the ties of agnation, a cessation of membership in a given civil group. (See on this subject Dr. Moyle’s Excursus, Inst. Bk. 1, and Professor Goudy’s App. to Muirhead’s Roman Law, second ed., p. 426, where Mommsen’s explanation is given.) This opinion is founded on the authority of Paulus, undeniably an eminent juris auctor, who defines the least diminution of head as follows: Dig. 4, 5, 11. ‘Capital diminution is of three orders, greatest, minor, least; as there are three things that we have, liberty, citizenship, family. The universal loss of freedom, citizenship, family, is the greatest capital diminution; loss of citizenship while liberty is retained is minor capital diminution; when liberty and citizenship are retained, and family only is changed, there is the least capital diminution.’ Consistently with this definition Paulus affirms that the children of adrogatus suffer capitis minutio minima: Dig. 4, 5, 3 pr. ‘The children who follow an adrogated parent suffer capital diminution, as they are dependent and have changed family’: here, then, if Paulus is right, we have capitis minutio without any degradation, Edition: current; Page:  any loss of rank; for the children of adrogatus have the same status of filiifamilias after their father’s adrogation as they had before, although in a different family. The proposition, however, that the children of adrogatus suffer capitis minutio is not confirmed by any other jurist, and Savigny supposes that the doctrine was peculiar to Paulus, and was in fact inaccurate. Another objection to the theory of Savigny, though not so serious as the opposing authority of Paulus, is presented by the operation of in manum conventio.
When an independent woman made a coemption she undoubtedly declined in status, as before coemption she was sui juris, and after coemption she is filiafamilias. But a filiafamilias who made a coemption apparently suffered no degradation: the definitive result of the coemption leaves her, as before, filiafamilias, and that, apparently, without having passed through any lower stage; for Gaius expressly says that the lex mancipii, or formula of mancipation in coemption, was not calculated to reduce the woman to a servile condition, § 123. Gaius tells us, however, that coemption operates a capitis minutio, § 162, without limiting the effect to the case of a woman sui juris. The operation of coemption to produce capitis minutio is also mentioned by Ulpian, and again without any express limitation to the case of an independent woman: 11, 13. ‘There is least capital diminution when both citizenship and freedom are unimpaired, and only position in household life is changed, as occurs in adoption and subjection to hand.’ If filiafamilias underwent capitis minutio when she made a coemption, her case disproves our theory that all capitis minutio requires degradation: but Savigny assumes that, though in these passages there is no express limitation to the case of independent women, yet this limitation must be understood; and there is nothing outrageous in this supposition.
While, however, these objections to the hypothesis of Savigny are doubtless serious, on the other hand they are compensated by legal facts which seem absolutely irreconcilable with the adverse hypothesis, the cases of Flamen Dialis and Virgo Vestalis. Gellius, 1, 12. ‘As soon as a vestal virgin is selected and conducted to the shrine of Vesta and delivered to the pontifices, she instantaneously, without emancipation and without capital diminution, is freed from parental power and acquires testamentary capacity. . . . . Moreover, in the commentary of Labeo on the Twelve Tables it is stated that a vestal virgin is neither heiress-at-law to any one who dies intestate nor, if she herself die intestate, leaves any heir-at-law, and that in this event her property lapses to the state.’ For Flamen Dialis, see 3 § 114. If mere transit from a family Edition: current; Page:  and ceasing to belong to a given group of agnates constituted capitis minutio, and was its definition, then the vestal virgin must inevitably have suffered capitis minutio; the fact that she did not, in spite of leaving her family and snapping the agnatic tie, is at once conceivable, on the supposition that there is no capitis minutio without degradation.
Unless capitis minutio minima involved a downward step on the stair of status, it has no analogy to the other forms of capitis minutio, and it is not obvious why it should have the same generic appellation, or why it should be handled in the same department of the code. The rupture of the ties of agnation, extinguishing rights of intestate succession, might be a loss, but it was not a loss from inferiority of privilege; it was a loss of an equal among equals; it was more like the loss of dos which a husband might incur by divorce of his wife, or an heir by neglecting to accept a succession within the appointed period (cretio), 2 § 164; neither of which persons were said to undergo capitis minutio, because neither of them suffered a reduction of the universitas juris called status.
On the whole, then, Savigny seems justified in considering the definition given by Paulus and his statement respecting the children of adrogatus as inexact. Paulus himself, in speaking of emancipation, implies the true conditions of capitis minutio: Dig. 4, 5, 3 Emancipato filio et ceteris personis capitis minutio manifesto accidit, cum emancipari nemo possit nisi in imaginariam servilem causam deductus; aliter atque cum servus manumittitur, quia servile caput nullum jus habet ideoque nec minui potest.
Although rupture of the ties, and forfeiture of the rights, or release from the duties, of agnation, were not the essence of capitis minutio minima, yet they were among its principal consequences. The capite minutus lost his claim as suus heres at civil law, that is, his right to succeed to an intestate ascendent, or to be instituted heir in his will or formally disinherited. These effects of capitis minutio were, however, counteracted to some extent by jus praetorium or the legislation of the praetor (bonorum possessio unde liberi: and contra tabulas). He also lost his right as legitimus heres at civil law, that is, his right to succeed as nearest agnate to an intestate collateral; and here the praetor only so far interposed to assist the capite minutus, as, in default of all persons entitled as nearest agnates, to call him to the succession in the inferior order of cognates (bonorum possessio unde cognati). The collateral civil heir was called legitimus heres (statutory heir) because his title was founded on the statutes of the Twelve Tables, which, in default of self-successors, called the nearest collateral agnates to the succession. Subsequent statutes created certain quasi agnates or persons entitled Edition: current; Page:  to succeed in the same order as if they were agnates, who hence were also called legitimi heredes; e. g. children entitled to succeed to an intestate mother under the Sc. Orphitianum, and mothers entitled to succeed to intestate children under the Sc. Tertullianum. The effect of capitis minutio in extinguishing title to succeed was confined to legitimus heres created by the Twelve Tables, and did not extend to the legitimus heres created by these subsequent statutes.
Besides the effects of capitis minutio which followed logically from its consisting in a degradation or fall in status, and from its involving elimination from a given family or a certain circle of agnates, it had certain other abnormal or arbitrary consequences—consequences, that is, which may have once been explicable on known maxims of the civil law, but which are now inexplicable, whose rationale had perhaps been lost even in the classical period, and is certainly now past conjecture. Such is the rule, that capitis minutio minima of an independent person extinguished the debts of capite minutus. It is true that the injustice operated by this rule of civil law in the case of adrogatio was counteracted by the interposition of the praetor, but, as at civil law filiusfamilias, though incapable of rights, was capable of obligations, it is not obvious why even at civil law a man’s debts should have been cancelled by his degradation from the status of paterfamilias to that of filiusfamilias. 3 § 84, comm.; 4 § 38.
§ 164 a.
(4 uersus in C legi nequeunt)—|—urbe |
(2 uersus in C legi nequeunt)—|—in urbe Roma—|—itaque ut seru—est—|—|—sunt—|
(2 uersus in C legi nequeunt)—|—esse—|—simile—|—|—.
§ 165. Ex eadem lege xii tabularum libertarum et inpuberum libertorum tutela ad patronos liberosque eorum pertinet. quae et ipsa tutela legitima uocatur, non quia nominatim ea lege de hac tutela cauetur, sed quia proinde accepta est per interpretationem, atque si uerbis legis introducta esset. eo enim ipso, quod hereditates libertorum libertarumque, si intestati decessissent, iusserat lex ad patronos liberosue eorum pertinere, crediderunt ueteres uoluisse legem etiam tutelas ad eos pertinere, quia et agnatos, quos ad hereditatem uocauit, eosdem et tutores esse iusserat.
Inst. 1, 17 pr.
§ 166. Exemplo patronorum receptae 〈sunt et aliae tutelae, quae et ipsae legitimae uocantur. nam si quis filium nepotemue ex filio et deinceps inpuberes, aut filiam neptemue ex filio et deinceps tam puberes quam inpuberes alteri ea lege mancipio dederit, ut sibi remanciparentur, remancipatosque manumiserit, legitimus eorum tutor erit.〉
Inst. 1, 18.
§ 166 a. [de fidvciaria tvtela.] Sunt et aliae tutelae, quae fiduciariae uocantur, id est quae ideo nobis conpetunt, quia liberum caput mancipatum nobis uel a parente uel a coemptionatore manumiserimus.
Inst. 1, 19.
§ 167. Sed Latinarum et Latinorum inpuberum tutela non omni modo ad manumissores eorum pertinet, sed ad eos quorum ante manumissionem 〈ex iure Quiritium fuerunt; unde si ancilla〉 ex iure Quiritium tua sit, in bonis mea, a me quidem solo, non etiam a te manumissa, Latina fieri potest, et bona eius ad me pertinent, sed eius tutela tibi conpetit; nam ita lege Iunia cauetur; itaque si ab eo, cuius et in bonis et ex iure Quiritium ancilla fuerit, facta sit Latina, ad eundem et bona et tutela pertinent.
§ 168. Agnatis et patronis et liberorum capitum manumissoribus permissum est feminarum tutelam alii in iure cedere; pupillorum autem tutelam non est permissum cedere, quia non uidetur onerosa, cum tempore pubertatis finiatur.
§ 169. Is autem, cui ceditur tutela, cessicius tutor uocatur.
§ 170. Quo mortuo aut capite deminuto reuertitur ad eum tutorem tutela qui cessit; ipse quoque qui cessit si mortuus aut capite deminutus sit, a cessicio tutela discedit et reuertitur ad eum, qui post eum qui cesserat secundum gradum in ea tutela habuerit.
§ 171. Sed quantum ad agnatos pertinet, nihil hoc tempore de cessicia tutela quaeritur, cum agnatorum tutulae in feminis lege Claudia sublatae sint.
§ 172. Sed fiduciarios quoque quidam putauerunt cedendae tutelae ius non habere, cum ipsi se oneri subiecerint. quod etsi placeat, in parente tamen, qui filiam neptemue aut proneptem alteri ea lege mancipio dedit, ut sibi remanciparetur, remancipatamque manumisit, idem dici non debet, cum is et legitimus tutor habeatur, et non minus huic quam patronis honor praestandus sit.
§ 165. The same statute of the Twelve Tables assigns the guardianship of freedwomen and of freedmen below the age of puberty to the patron and the patron’s children, and this guardianship, like that of agnates, is called statutory guardianship, not that it is anywhere expressly enacted in the Twelve Tables, but because the Edition: current; Page:  interpretation has procured for it as much reception as it would have obtained from express enactment; for the fact that the statute gave the succession of a freedman or freedwoman, when they die intestate, to the patron and patron’s children, was deemed by the lawyers of the republic (veteres) a proof that it intended to give them the guardianship also, because the Tables, when they call agnates to succeed to the inheritance, likewise confer on them the guardianship.
§ 166. The analogy of the patron guardian led in its turn to the establishment of other guardianships also called statutory. Thus when a person mancipates to another, on condition of remancipation to himself, either a son or grandson through a son, who are below the age of puberty, or a daughter or granddaughter through a son of whatever age they may be, he becomes their statutory guardian when he manumits them after remancipation.
§ 166 a. Concerning Fiduciary Guardianship.
But there are other kinds of guardianship, called fiduciary, which arise when a free person has been mancipated by his parent or coemptionator to an alienee and manumitted by the latter.
§ 167. The guardianship of Latins, male or female, below the age of puberty, does not necessarily belong to their manumitter, but on whoever before manumission was their quiritary owner. Accordingly, a female slave belonging to you as quiritary owner, to me as bonitary owner, if manumitted by me without your joining in the manumission, becomes a Latin, and her property belongs to me, but her guardianship Edition: current; Page:  to you, by the enactment of the lex Junia. If the slave is made a Latin by one who combines the character of bonitary and quiritary owner, both her effects, and the guardianship of her, belong to one and the same person.
§ 168. Statutory guardians, whether agnates or patrons, and manumitters of free persons, are permitted to transfer the guardianship of a female ward by surrender before a magistrate; the guardianship of a male ward is not allowed to be transferred, because it is not considered onerous, being terminated by the ward’s attaining the age of puberty.
§ 169. The surrenderee of a guardianship is called a cessionary guardian.
§ 170. On his death or loss of status the guardianship reverts to the surrenderor, and on the surrenderor’s death or loss of status it is devested from the cessionary and reverts to the person entitled after the surrenderor.
§ 171. As far, however, as agnates are concerned, in the present day there is no such thing as cessionary guardianship, for agnatic guardianship over female wards was abolished by the lex Claudia.
§ 172. Fiduciary guardians, according to some, are also disabled from transferring their guardianship, having voluntarily undertaken the burden; but although this is the better opinion, yet a parent who has mancipated a daughter, granddaughter, or great-granddaughter, with a condition Edition: current; Page:  of remancipation to himself, and manumitted her after remancipation, should be excepted from the rule, for he is ranked with statutory guardians, and has the same privilege as the patron of a manumitted slave.
§ 164 a. As in default of agnates the inheritance by the law of the Twelve Tables devolved on the gens it may be inferred by the reasoning adopted in § 165 that the guardianship passed to it also. So it is probable that at the beginning of the lacuna Gaius made mention of the statutory guardianship of the Gentiles, and that this is the passage on the subject referred to in 3, 17. As to the nature of the gens, see Introduction.
§ 166 a. Cf. §§ 115, 175, 195 a.
§ 167. It seems anomalous that a Latin, i.e. a non-civis, should have been a subject of wardship: for as tutela is an institute of jus civile (§§ 142, comm., 189), i.e. jus civium, we should have expected that, as in the case of patria potestas, both pater and filius must be cives Romani, § 128, so here both parties, the ward as well as the guardian, must of necessity be cives Romani. The anomaly, however, was expressly enacted by the lex Junia: which further departed from the law of the Twelve Tables by separating the guardianship from the right of succession; for it gave the guardianship to the person who before the manumission had been quiritary owner, but the right of succession to the person who had previously been bonitary owner. Latinus was not only capable of being a ward, but also of being a guardian, Fragmenta Vaticana, 193; that is, though he was incapable of being a testamentary guardian, § 23, he could, it would seem, be made a tutor dativus, that is, appointed by a magistrate, § 185.
§ 168. In later Roman law, when the interest of the ward and not that of the agnates was principally regarded, guardianship became inalienable. Similarly in English jurisprudence guardianship is said not to be capable of assignment or transfer, because it is not a right but a duty.
§ 173. Praeterea senatusconsulto mulieribus permissum est in absentis tutoris locum alium petere; quo petito prior desinit; nec interest quam longe absit is tutor.
§ 174. Sed excipitur, ne in absentis patroni locum liceat libertae tutorem petere.
§ 175. Patroni autem loco habemus etiam parentem, qui ex eo, quod ipse sibi remancipatam filiam neptemue aut proneptem manumisit, legitimam tutelam nactus est. 〈sed〉 huius quidem liberi fiduciarii tutoris loco numerantur; patroni autem liberi eandem tutelam adipiscuntur, quam et pater eorum habuit.
§ 176. Sed aliquando etiam in patroni absentis locum permittitur tutorem petere, ueluti ad hereditatem adeundam.
§ 177. Idem senatus censuit et in persona pupilli patroni filii.
§ 178. Nam et lege Iulia de maritandis ordinibus ei, quae in legitima tutela pupilli sit, permittitur dotis constituendae gratia a praetore urbano tutorem petere.
§ 179. Sane patroni filius etiamsi inpubes sit, libertae efficietur tutor, quamquam in nulla re auctor fieri potest, cum ipsi nibil permissum sit sine tutoris auctoritate agere.
§ 180. Item si qua in tutela legitima furiosi aut muti sit, permittitur ei senatusconsulto dotis constituendae gratia tutorem petere.
§ 181. Quibus casibus saluam manere tutelam patrono patronique filio manifestum est.
§ 182. Praeterea senatus censuit, ut si tutor pupilli pupillaeue suspectus a tutela remotus sit, siue ex iusta causa fuerit excusatus, in locum eius alius tutor detur, quo facto prior tutor amittit tutelam.
§ 183. Haec omnia similiter et Romae et in prouinciis obseruantur, scilicet 〈ut Romae a praetore〉 et in prouinciis a praeside prouinciae tutor peti debeat.
§ 184. Olim cum legis actiones in usu erant, etiam ex illa causa tutor dabatur, si inter tutorem et mulierem pupillumue lege agendum erat; nam quia ipse tutor in re sua auctor esse non poterat, alius dabatur, quo auctore legis actio perageretur; qui dicebatur praetorius tutor, quia a praetore urbano dabatur. sed post sublatas legis actiones quidam putant hanc speciem dandi tutoris in usu esse desiisse, aliis autem placet adhuc in usu esse, si legitimo iudicio agatur.
Ulp. 11, 24; Inst. 1, 21, 3.
§ 173. Moreover, a decree of the senate permits female wards to demand a substitute in the place of an absent guardian, who is thus superseded: and the distance of his residence from her domicil [provided it amounts to absence] is immaterial.
§ 174. But an exception is made in favour of an absent patron, who cannot be superseded on the application of a freedwoman.
§ 175. Ranked with patrons is the parent who by mancipation, remancipation, and manumission of a daughter, granddaughter, or great-granddaughter, has become her statutory guardian. His sons only rank as fiduciary guardians, unlike a patron’s sons, who succeed to the same form of guardianship as vested in their father.
§ 176. For a special and limited purpose the senate permits even the place of a patron in his absence to be filled by a substitute; for instance, to authorize the acceptance of an inheritance.
§ 177. The senatusconsult gives similar permission when a patron’s son is himself a ward.
§ 178. For likewise the lex Julia, regulating the marriages of the various orders, permitted a woman whose statutory guardian was himself a ward to apply to the praetor of the city to appoint a guardian for the purpose of constituting her dower.
§ 179. For a patron’s son even before the age of puberty is a freedwoman’s guardian, although unable to authorize any proceeding, being himself disabled from acting without his guardian’s authorization.
§ 180. Also a woman whose statutory guardian is a lunatic or dumb is permitted by the senatusconsult, for the purpose of settling her dower, to apply for a substitutive guardian.
§ 181. In which cases the continued guardianship of the patron or patron’s son is undisputed.
§ 182. The senate further decreed that if the guardian of a male or female ward is suspected of misconduct and removed from office, or if he alleges valid grounds for declining to act and is relieved of his functions, a substitute shall be appointed by the magistrate, and on his appointment the office of the former guardian shall determine.
§ 183. These rules are in force both in Rome and in the provinces, but in Rome application for the appointment of a tutor must be made to the praetor; in the provinces, to the governor of the province.
§ 184. During the era of litigation by statute-process [4 § 10], another cause of appointing a substitute was the imminence of statute-process between the guardian and the woman or ward; for as the guardian could not give his authority in respect of his own suit, another guardian was appointed to authorize the proceedings in the action, who was called a praetorian guardian, because he was appointed by the praetor of the city. But some hold that since the abolition of statute-process this mode of appointing a guardian ceased to be used, others maintain that it is still the practice on the occasion of a statutory suit (4 § 103).
§ 173. Cf. Ulp. 11, 22. The name and date of this senatusconsultum cannot be ascertained.
§ 178. Gaius, as already stated, wrote a special treatise or commentary on this important law relating to marriage.
§ 179. The law was changed by Justinian, who enacted that no one could become guardian who had not attained his majority, i. e. completed twenty-five years of age, Inst. 1, 25, 13; Cod. 5, 30, 5. The fact of not having attained this age had previously been ground of excuse.
§ 182. Cf. Inst. Just. 1, 26. The actio suspecti tutoris for the removal of the guardian from his office could be maintained by any Edition: current; Page:  person in the interest of the ward. If removed on account of fraud the guardian was infamis, but not so if it was simply for negligence.
§ 183. The ambiguity of the Latin language leaves it doubtful whether in the foregoing paragraphs, §§ 173, 176, 180, 182, Gaius refers to one or several senatusconsults. From Dig. 26, 1, 17, however, it appears that, complura senatusconsulta facta sunt ut in locum furiosi et muti et surdi tutoris alii tutores dentur: i. e. the subject often occupied the attention of the senate. The reason was that the lex Atilia, presently mentioned, had received, after the wont of the ancient jurists, a strictly literal interpretation, and was not deemed to authorize the substitution of a guardian when the existing guardian was incapacitated.
§ 185. Si cui nullus omnino tutor sit, ei datur in urbe Roma ex lege Atilia a praetore urbano et maiore parte tribunorum plebis, qui Atilianus tutor uocatur; in prouinciis uero a praesidibus prouinciarum 〈ex〉 lege Iulia et Titia.
Inst. 1, 20 pr.
§ 186. Et ideo si cui testamento tutor sub condicione aut ex die certo datus sit, quamdiu condicio aut dies pendet, tutor dari potest; item si pure datus fuerit, quamdiu nemo heres existat, tamdiu ex his legibus tutor petendus est; qui desinit tutor esse, posteaquam aliquis ex testamento tutor esse coeperit.
Inst. 1, 20, 1.
§ 187. Ab hostibus quoque tutore capto ex his legibus tutor peti debet; qui desinit tutor esse, si is qui captus est in ciuitatem reuersus fuerit: nam reuersus recipit tutelam iure postliminii.
Inst. 1, 20, 2.
§ 188. Ex his apparet, quot sint species tutelarum. si uero quaeramus in quot genera hae species diducantur, longa erit disputatio; nam de ea re ualde ueteres dubitauerunt, nosque diligentius hunc tractatum executi sumus et in edicti interpretatione et in his libris quos ex Q. Mucio fecimus. hoc tantisper sufficit admonuisse, quod quidam quinque genera esse dixerunt, ut Q. Mucius; alii tria, ut Ser. Sulpicius; alii duo, ut Labeo; alii tot genera esse crediderunt, quot etiam species essent.
§ 185. Failing every other form of guardian, at Rome a guardian is appointed under the lex Atilia by the praetor of the city and the major part of the tribunes of the people, called an Atilian guardian: in the provinces, a guardian is appointed by the president of the province under the lex Julia and Titia.
§ 186. Accordingly, on the appointment of a testamentary guardian subject to a condition, or on an appointment which is not to commence till after a certain time, during the pendency of the condition and before the time has come, a substitute is appointed by these magistrates; also, when the appointment of a testamentary guardian is not subject to a condition, so long as no heir has entered under the will, a temporary guardian may be obtained under those statutes, whose office will determine as soon as the guardian becomes entitled under the will.
§ 187. On the hostile capture of a guardian the same statutes regulate the appointment of a substitute to continue in office until the return of the captive; for if the Edition: current; Page:  captive returns he recovers the guardianship in virtue of his rehabilitation.
§ 188. The foregoing statement shows the various forms of guardian: the question of the number of orders to which these forms may be reduced involves a long discussion, for it is a point on which the ancient jurists differed greatly; and as I have examined it at length, both in my interpretation of the edict and in my commentary on Quintus Mucius, for the present occasion it may suffice to observe that some, as Quintus Mucius, make five orders; others, as Servius Sulpicius, three; others, as Labeo, two; others make as many orders as there are forms of guardian.
§ 188. In the time of Justinian there were three forms of guardian,—testamentary, or appointed by will; statutory, or prescribed by the law in case of intestacy; and magisterial (dativus), or appointed by the magistrate, in default of a testamentary or statutory guardian. The other forms of guardian had become obsolete, except a kind of fiduciary one, Inst. 1, 19, in consequence of the change in legislation.
For an account of Q. Mucius Scaevola (Consul b. c. 95) and Servius Sulpicius Rufus (Consul b. c. 51), who may be regarded as the fathers of Roman jurisprudence, see Roby, Intr. to Justinian’s Digest, pp. cvi and cxi.
§ 189. Sed inpuberes quidem in tutela esse omnium ciuitatium iure contingit, quia id naturali rationi conueniens est, ut is qui perfectae aetatis non sit, alterius tutela regatur. nec fere ulla ciuitas est, in qua non licet parentibus liberis suis inpuberibus testamento tutorem dare; quamuis, ut supra diximus, soli ciues Romani uideantur liberos suos in potestate habere.
Inst. 1, 20, 6.
§ 190. Feminas uero perfectae aetatis in tutela esse fere nulla pretiosa ratio suasisse uidetur; nam quae uulgo creditur, quia leuitate animi plerumque decipiuntur et aequum erat eas tutorum auctoritate regi, magis speciosa uidetur quam uera; mulieres enim, quae perfectae aetatis sunt, ipsae sibi negotia tractant et in quibusdam causis dicis gratia tutor interponit auctoritatem suam, saepe etiam inuitus auctor fieri a praetore cogitur.
§ 191. Unde cum tutore nullum ex tutela iudicium mulieri datur; at ubi pupillorum pupillarumue negotia tutores tractant, ei post pubertatem tutelae iudicio rationem reddunt.
§ 192. Sane patronorum et parentum legitimae tutelae uim aliquam habere intelleguntur eo, quod hi neque ad testamentum faciendum neque ad res mancipi alienandas neque ad obligationes suscipiendas auctores fieri coguntur, praeterquam si magna causa alienandarum rerum mancipi obligationisque suscipiendae interueniat; eaque omnia ipsorum causa constituta sunt, ut, quia ad eos intestatarum mortuarum hereditates pertinent, neque per testamentum excludantur ab hereditate neque alienatis pretiosioribus rebus susceptoque aere alieno minus locuples ad eos hereditas perueniat.
§ 193. Apud peregrinos non similiter ut apud nos in tutela sunt feminae; sed tamen plerumque quasi in tutela sunt; ut ecce lex Bithynorum, si quid mulier contrahat, maritum auctorem esse iubet aut filium eius puberem.
§ 189. The wardship of children under the age of puberty is part of the law of every state, for it is a dictate of natural reason that persons of immature years should be under the guardianship of another, in fact there is scarcely any state which does not permit a parent to nominate a testamentary guardian for his children under the age of puberty, though, as we have before stated, only citizens of Rome appear to be invested with parental power.
§ 190. But why women of full age should continue in wardship there appears to be no valid reason; for the common allegation, that on account of levity of disposition they are readily deceived, and that it is therefore right that they should be controlled by the sanctionary power of a guardian, seems rather specious than true, for women of full age administer their own property, and it is a mere formality that in some transactions their guardian interposes his sanction; and in these cases he is frequently compelled against his own will to give his sanction.
§ 191. Accordingly, a woman has not the tutelary action against her guardian; whereas since the guardians of youthful wards, both male and female, administer their wards’ property, they are liable to be sued on account of such administration when the ward has come to the age of puberty.
§ 192. The statutory guardianship of patrons and parents is not purely ineffective, as they cannot be compelled to give their sanction to a will or to the alienation of mancipable property, or to the undertaking of obligations, unless there are very weighty reasons for the obligation or the alienation; but this rule is in their own interest as heirs of intestacy, and is designed to prevent their loss of the estate by testamentary disposition, or the diminution of its value by debt or by alienation of a considerable portion.
§ 193. In other countries, though not under the same tutelage as at Rome, women are generally Edition: current; Page:  subject to a quasi tutelage: for instance, the law of Bithynia requires the contract of a woman to be sanctioned by her husband or by a son above the age of puberty.
As women were capable of administration, the functions of the guardian, which in the case of infants were either administrative or sanctionative, in the case of women were confined to sanctioning. Pupillorum pupillarumque tutores et negotia gerunt et auctoritatem interponunt: mulierum autem tutores auctoritatem dumtaxat interponunt, Ulp. 11, 25. It is transparent that the wardship of women after full age was not designed to protect their own interests, but those of their heirs apparent, their agnates. Originally the authorization of the guardian was not sufficient to validate the will of an independent woman: it was necessary that she should first break the ties of agnation, and separate from her family by means of a coemption (with her guardian’s sanction) and subsequent remancipation and manumission. She then, with the sanction of the manumissor, in his character of fiduciary guardian, could make a valid will. In the time of Gaius, Hadrian having abolished the necessity of coemption, to make a valid will an independent woman only required the sanction of her guardian, 2 § 112, and Claudius, as we have seen, had put an end to agnatic guardianship, § 171.
When a woman was liberated from the administrative control of her guardian, and the guardian had no longer any interest in the succession to her property, the simplest course would have been to declare her dispositions valid without his sanction—to declare her no longer a ward. But with characteristic conservatism of forms, Roman law, to avoid the open change, declared the auctoritas still necessary, but made it compulsory instead of voluntary—gave the ward a power of extorting it from the guardian, 2 §§ 80-85. So the act whereby a testamentary heir accepts an inheritance was originally absolutely voluntary: but when trusts (fidei commissa) were introduced, and the heir as trustee or fiduciarius by groundlessly refusing to make the necessary aditio, which in this case was the merest form, could produce intestacy, and thus deprive the beneficiary, fidecommissarius, or cestui que trust of the provision destined for him by the bounty of the testator: instead of declaring the aditio of the heres unnecessary to the acquisition of the fortune by fideicommissarius; or that in such a case the beneficiary should be deemed to be a direct substitutus of the heres; or that the vexatious refusal of the heres should be deemed to be an aditio and Edition: current; Page:  restitutio; the legislator ordained that the heres should be compelled to make aditio in order to complete the title, 2 § 258, comm. Again, the terms of the security given by the guardian (rem pupilli salvam fore) against dilapidation of the estate of the ward made the responsibility of the guardian depend on his actual administration; so that he was not responsible if the estate went to ruin in consequence of his total abstention from the performance of his duties. To protect the ward against this contingency, instead of altering the formula of the satisdatio, and making the liability of the guardian depend on his appointment and not on his acting; the law compelled him to proceed to some act of guardianship, in order to bring him under the unchanged terms of his security; Dig. 46, 6, 4, 3. In all these and other cases a compulsory act was substituted for a voluntary act for the sake of giving the law an outward appearance of continuity. At last, at some period before the epoch of Justinian, the tutelage of women above the age of puberty had ceased in form as well as in substance, and no sanction of a guardian, whether voluntary or compulsory, was required.
It is to be observed, that as women were gradually enfranchised from their disabilities, they also forfeited some of their original privileges. It was a rule of the administration of justice that while error of fact might be pleaded to defend a person against the consequences of his own acts or omissions, no one should be allowed to allege an error of law, Dig. 22, 6, 9 pr. An exception however was made in favour of minors, of soldiers, of the utterly uneducated (rustici), and of women. Against their ignorance of rules of law, particularly those rules of jus civile which are not, like rules of jus gentium or naturale, the almost self-evident dictates of reason and common sense, they were relieved by a branch of the praetor’s extraordinary jurisdiction, called in integrum restitutio, a power of cancellation and rescission, in cases of manifest collision between law and equity; §§ 197-200, comm. This privilege of women was partially abrogated by a constitution of the Emperor Leo, a. d. 472; Cod. 1, 18, 13. ‘To prevent the indiscriminate revocation by women of all their contracts on the ground of omission of error, be it enacted, that ignorance of law, whereby a woman is damnified in her right or property, shall only be a title to relief in those cases where previous statutes have sanctioned such relief.’
From § 189 it might appear that Gaius referred the institution of guardianship to the code of jus gentium. We have, however, quoted from the Institutes, §§ 142, 154, comm., a passage which ascribes it to jus civile: and, indeed, no institution confined in its operation almost entirely to cives, can be supposed to belong to Edition: current; Page:  jus gentium or natural law. Moreover, the law of guardianship has been most variable, not only if we look to different countries, but also if we look at different periods in the same country; and the praetor or chancellor or other authority that has had the supervision of guardians has always exercised a great latitude of discretion; features which again forbid us to ascribe the rules of wardship to any comparatively immutable code of nature. Tutela was in fact an old Roman institution, by which the gens or familia maintained control in its own interest over its weaker members, who were not subject to patria potestas. It is possible that this control was at first exclusively exercised by the gens, in whom the ownership of all land occupied by the gentiles may have been vested, and that agnatic as well as testamentary guardianship was first instituted by the law of the Twelve Tables, whereby patricians and plebeians were put on an equality in respect of private rights. That the gens was in the habit of taking charge in some way of lunatics and insane persons we know from the words of the Twelve Tables, which have come down to us—‘Si furiosus exit, ast ei custos ne exit, adgnatûm gentiliumque in eo pecuniaque eius potestas est.’ Cf. Muirhead, Roman Law, §§ 26, 28.
§ 194. Tutela autem liberantur ingenuae quidem trium 〈liberorum iure libertinae uero quattuor, si in patroni〉 liberorumue eius legitima tutela sint; nam ceterae quae alterius generis tutores habent, [uelut Atilianos aut fiduciarios,] trium liberorum iure tutela liberantur.
§ 195. Potest autem pluribus modis libertina alterius generis 〈tutorem〉 habere, ueluti si a femina manumissa sit; tunc enim e lege Atilia petere debet tutorem, uel in prouinc〈iis e lege Iul〉ia et Titia; nam in patronae tutela esse non potest.
§ 195 a. Item si 〈a〉 masculo manumissa 〈fuerit〉 et auctore eo coemptionem fecerit, deinde remancipata et manumissa sit, patronum quidem habere tutorem desinit, incipit autem habere eum tutorem a quo manumissa est, qui fiduciarius dicitur.
§ 195 b. Item si patronus eiusue filius in adoptionem se dedit, debet liberta e lege Atilia uel Iulia et Titia tutorem petere.
§ 195 c. Similiter ex isdem legibus petere debet tutorem liberta, si patronus decesserit nec ullum uirilis sexus liberorum in familia reliquerit.
§ 196. Masculi autem cum puberes esse coeperint, tutela liberantur. puberem autem Sabinus quidem et Cassius ceterique nostri praeceptores eum esse putant, qui habitu corporis pubertatem ostendit, id est eum qui generare potest; sed in his qui pubescere non possunt, quales sunt spadones, eam aetatem esse spectandam, cuius aetatis puberes fiunt; sed diuersae scholae auctores annis putant pubertatem aestimandam, id est eum puberem esse existimant qui xiiii annos expleuit.—|
Inst. 1, 22 pr.
§ 194. Guardianship is terminated for a freeborn woman by title of being mother of three children, for a freedwoman if under statutory guardianship of her patron or his children by being mother of four children: those who have other kinds of guardians, Atilian or fiduciary, for instance, are liberated from wardship by being mothers of three children.
§ 195. There are various ways by which a freedwoman may have other kinds of guardians: for instance in case of her manumission by a woman, when she must request a guardian under the lex Atilia, or, in the provinces, under the lex Julia and Titia, since a female patron cannot be her guardian.
§ 195 a. Also on manumission by a male, if with his sanction she makes a coemption, and then is remancipated and manumitted, Edition: current; Page:  for the patron then ceases to be guardian, and is replaced by the second manumitter, who is called a fiduciary guardian.
§ 195 b. Also on the adrogation of her patron or his son she must demand a guardian under the lex Atilia or Titia.
§ 195 c. Similarly in compliance with the same laws she must demand a guardian on the decease of her patron without leaving any male descendant in the family.
§ 196. For males the attainment of the age of puberty is a release from wardship. Puberty, according to Sabinus and Cassius and the other authorities of my school, depends on physical development, that is, on capacity of generation; or in case of impotence, eunuchs for instance, on the completion of the age which usually implies capacity of generation. The other school hold that puberty is to be exclusively measured by age, that is to say, that it should always be deemed to be attained on the completion by a male of his fourteenth year.
§ 196. All jurists agreed that in the case of impotence, whether natural or acquired, some fixed date must be assumed as the conventional period of puberty. The Sabinian rule appears to be preserved in a passage of Paulus: Spadones eo tempore testamentum facere possunt quo plerique pubescunt, id est, anno decimo octavo, 3, 4 a, 2. Fourteen was assumed to be the average age of puberty; but it was too early, even in the southern climes subject to Roman legislation, for a minority of constitutions which advance more slowly to maturity. Eighteen was supposed to be sufficiently postponed to include most of these cases of retarded development. We have already, in treating of adrogation, § 106, commentary, met with the phrase, plena pubertas, denoting eighteen years of age.
(25 uersus in C legi nequeunt)
§ 197. — aetatem peruenerit, in qua res suas tueri possit; sicut apud peregrinas gentes custodiri superius indicauimus.
Inst. 1, 2, 3.
§ 198. Ex isdem causis et in prouinciis a praesidibus earum curatores dari solent.
Inst. l. c.
§ 199. Ne tamen et pupillorum et eorum qui in curatione sunt negotia a tutoribus curatoribusque consumantur aut deminuantur, curat praetor, ut et tutores 〈et〉 curatores eo nomine satisdent.
Inst. 1, 24 pr.
§ 200. Sed hoc non est perpetuum; nam et tutores testamento dati satisdare non coguntur, quia fides eorum et diligentia ab ipso testatore probata est; et curatores, ad quos non e lege curatio pertinet, sed 〈qui〉 uel a consule uel a praeside prouinciae dantur, plerumque non coguntur satisdare, scilicet quia satis honesti electi sunt.
Inst. l. c.
§ 197. After release from tutelary guardianship the estate of a minor is managed by a curator until he reaches the age at which he is competent to attend to his own affairs, and the same rule obtains in other nations, as we have already mentioned.
§ 198. Under similar circumstances the president of a province appoints a curator.
§ 199. To protect tutelary wards and those having a curator from the destruction or waste of their property by their guardians and curators, it is the function of the praetor to require such guardians and curators to give security for due administration.
§ 200. But this is not without exception, for testamentary guardians are not compelled to give security, as their integrity and vigilance have been approved by the testator; and curators who have not been appointed by any statute, but by the nomination of a consul or praetor or president of a province, are generally not required to give security, their selection being deemed sufficient evidence of their trustworthiness.
§ 197. In English jurisprudence there is no distinction corresponding to that between tutor and curator, impubes (pupillus) and minor (adolescens). Infant and minor are in English synonymous; guardianship continues to the attainment of majority, i. e. to the completion of twenty-one years of age; and after that the young of both sexes are considered to be capable of taking care of themselves, and are free from further control. At Rome wardship (tutela) ceased at puberty, or, as the law came to be defined, at the age of fourteen Edition: current; Page:  for males and twelve for females, ages at which the young manifestly continue to stand in need of guidance and protection, though according to Roman law they were then fully competent to administer their own property, and to dispose of it by will.
Such protection was provided for them partly by two statutes, partly by praetorian legislation. (1) The lex Plaetoria, or Laetoria, was as old as Plautus, who about 186 b. c. makes a youth exclaim: Lex me perdit quinavicenaria; metuunt credere omnes, Pseudolus, 303. ‘The statute with its five and twenty years prevents my getting credit.’ It made a crimmal offence, and subject to a criminal prosecution (judicium publicum, Cic. de Nat. Deor. 3, 30), what Cicero calls circumscriptio adolescentium, De Off. 3, 15; i. e. over-reaching and circumventing persons below the age of twenty-five. Such is Savigny’s interpretation of judicium publicum. Vermischte Schriften, 18. Ihering maintains that judicium publicum denotes in this passage not a criminal prosecution but an actio popularis; i. e. a civil action that could be instituted not only by the Minor but by a common Informer: and he quotes Dig. 26, 10, 1, 6 (cf. Inst. 1, 26, 3) Consequens est ut videamus qui possunt suspectos (tutores) postulare, et sciendum est quasi publicam esse hanc actionem, hoc est, omnibus patere. Dig. 12, 2, 30, 3, where quasi publica actio means an action similar to actio popularis, Geist des Romischen Rechts, § 52, nn. 158, 159. The circumscription of a minor, like fraudulent mal-administration by a guardian, rendered the person convicted thereof infamis. A contractor with a minor might secure himself against the penalties of the law, if a curator were nominated by the praetor to advise the minor in respect of the special transaction.
(2) As the lex Plaetoria was only applicable in cases of fraud (dolus malus, Cic. de Off. 3, 15), the protection it gave to minors was inadequate: accordingly, the praetor, besides allowing a minor to set up the plea of minority when sued in an action, proclaimed in his edict that he would relieve minors who had been damaged in consequence of inexperience and improvidence by rescission and cancellation of the proceeding (in integrum restitutio). To obtain this relief it was not necessary to prove any fraud on the part of the person who contracted with the minor.
(3) A person who wished to bring an action against a minor could compel him to obtain from the praetor a curator for the purpose of defending the particular suit; whose office ceased as soon as the special litigation terminated. Marcus Aurelius, under whom Gaius flourished, enacted that any minor who chose should be able to obtain from the praetor a general curator (generalis curator), who then should be charged with the general administration (generalis administratio) of his estate, Capitolinus, 10. In Edition: current; Page:  view of this option of the minor, Justinian could still say: Inviti adolescentes curatores non accipiunt praeterquam ad litem, Inst. 1, 23, 2. ‘Unless they choose, minors need not have a curator, except for a suit.’ A minor who had a curator could not aliene without the consent of his curator: he could incur an obligation without the consent of his curator, subject to his right of in integrum restitutio, though, unless he had a curator, persons would not be very willing to contract with him. Even the existence of a curator did not deprive the minor of his right of restitution, but of course it could not be obtained so readily as when he acted without the advice of a curator. The praetor allowed actiones utiles against a curator, corresponding to those to which a tutor was subject.
The tutor and curator were entirely separate functionaries: when women were under perpetual tutelage, a woman might have both a tutor and a curator. The curator of a minor must be distinguished from an agent (procurator), a person invested with certain rights and duties, which will be explained when we examine the different kinds of contract. An agent is governed by the instructions (mandatum) of his principal: a minor is under the direction of his curator: the employment of an agent is a private matter, purely voluntary on the part of the principal; the curator, like the tutor, holds a public function, and having one is in some cases involuntary on the part of the minor.
How exactly the lacuna in § 197 should be filled up is doubtful. We do not know what is the previous passage referred to.
Besides minors, lunatics and prodigals of whatever age were committed to the charge of curators. The cura of lunatics and prodigals is, indeed, older than that of minors, being regulated by the Twelve Tables, which directed that the nearest agnate should be curator of a lunatic, and manage the estate of an interdicted prodigal. In later times it was usual for the praetor or praeses provinciae to appoint a curator after inquest (ex inquisitione). Paulus has preserved the form of words in which the prodigal was interdicted: 3, 4 a, 7. ‘By custom the praetor interdicts a prodigal from the administration of his property in the following terms: As thy profligacy is wasting the estate of thy father and ancestors, and bringing thy children to destitution, I therefore interdict thee from the control of thy patrimony, and from all disposition of property.’
In integrum restitutio, a branch of the praetor’s equitable jurisdiction, and one of the most remarkable cases of his cognitio extraordinaria, has been mentioned more than once, and deserves here a brief explanation. Restituere in a general sense denotes any Edition: current; Page:  undoing of a wrong, any replacement of a person or his right in his or its original condition, whether by the voluntary act of the wrongdoer, or after action brought, and then either at the invitation of the judge (in virtue of the clause, ni restituat, 4 § 47), or in execution of a judicial sentence. But in the phrase we are examining it denotes the act, not of a private party, but of a magisterial authority. In integrum restitutio is the restitution by the praetor of a person to his original legal condition, in cases when some injury has been done to him by operation of law. The interposition in such cases of the highest Roman minister of justice bears some analogy to the use made of the prerogative of the Crown in our own early legal history. The function of thus overruling the law where it collided with equity was only confided to the highest magisterial authority, and even in his hands was governed by the principle that he was only supposed to act in a ministerial, not in a legislative capacity. Five grounds or titles (justae causae) to extraordinary relief (extraordinarium auxilium) were recognized and enumerated in the edict, Dig. 4, 1: intimidation (metus), fraud (dolus malus), absence, error, minority (aetatis infirmitas). Two, however, of these titles, fraud and intimidation, had additional remedies in the ordinary course of procedure (ordo judiciorum), where they were recognized as grounds of exception and personal action. Thus we find that a praetor called Octavius introduced the actio and exceptio metus mentioned by Cicero, Verr. 2, 3, 65, where the actio metus is called Formula Octaviana, and that the famous Aquilius Gallus, the colleague of Cicero, introduced the exceptio and the actio doli, Cic. de Natura Deorum, 3, 30.
The chronological order of the remedy by Action and the remedy by Restitution, like that of the historical relation of interdict to action, is disputed. Savigny, §§ 112, 191, 199, holds that the remedy by Restitution was older than the remedy by Action; while Vangerow, § 185, holds that the remedy by Action was older than the remedy by Restitution. As remedies they were very different in character, the effect of a grant of restitution being simply to reinstate a person in a legal right, which he had lost, not to give him damages on account of the violation of a right.
There are three conditions of Restitution: (1) The first condition is a Laesion by the operation of law, i. e. a disadvantageous change in civil rights or obligations brought about by some omission or disposition of the person who claims relief. This disadvantage may either consist in positive loss of acquired property, or in missing a gain which would not have involved, on the part of another, a positive loss of acquired property. An instance of such a laesion would be the loss of property by omitting to interrupt a usucapio Edition: current; Page:  or by omitting to claim an inheritance, or by making some omission in procedure. Cf. 4 § 57.
(2) A second condition is some special or abnormal position of the person who claims relief when such special circumstance is the cause of the loss which he has suffered. Thus a minor may be relieved against an injudicious bargain, but not against the casual destruction of the thing he has purchased, for this loss was not occasioned by his minority or inexperience. Such abnormal positions (justae causae) are compulsion, fraud, minority, absence, error.
(3) A third condition of relief is the absence of various disentitling circumstances. Thus relief is granted against the effect of legal dispositions and omissions, but not against the effect of delicts. Again the extraordinary relief of in integrum restitutio is not granted when the courts of law can administer an adequate remedy.
Originally capitis minutio of a defendant was ground for a restitution, 3 § 84; but this ceased at an early period to be anything more than a formal case of restitution; for rescission of the adrogation, adoption, emancipation, whereby a person’s debts were extinguished, was granted as a matter of course without any previous investigation (causae cognitio), and without any period of prescription like that which limited the right to pray for restitution.
This was, originally, annus utilis, and in the time of Justinian, quadriennium continuum or four calendar years, which begin to run, not from the date of the Laesion, but from the termination of the Causa, i. e. the abnormal position—minority, absence, compulsion, deception, error—whereby the Laesion was occasioned. Such at least is Savigny’s and Windscheid’s opinion. Vangerow holds that, except in Minority and Absence, prescription begins to run from the date of Laesion, 4 §§ 110-113, comm.
Of the five titles to restitution that we have enumerated, four, namely, intimidation, fraud, absence, error, implying equality of rights in all parties, belong to the law of Things or actions; title by minority, implying a privileged class or inequality of rights, belongs to the law of Persons.
As we shall have occasion in the next book, §§ 1-14, comm., to use the expression Rerum universitas, it may seem appropriate, before we quit the law of Persons, to give some explanation of the contrasted term, Personarum universitas. A University of persons in the private code is a fictitious or juristic person, composed generally by the union of a number of individuals, and capable like a natural individual (singularis persona) of the various rights and duties of property, that is to say, of potestas, patronatus, dominium, Edition: current; Page:  servitus, obligatio; and the power of suing and being sued (cf. Sohm, §§ 37, 38).
Some Universities have a visible existence or representation in a number of individual members, and are then called Corporations. An essential incident of Corporations is that their rights are not vested in the aggregate of individuals, but in the ideal whole, regarded as distinct from the members of which it is composed. Examples of such Corporations are municipalities (civitas, municipium, respublica, communitas), colleges of priests, of Vestal Virgins, corporations of subordinate officials, e. g. lictors, notaries (scribae, decuriae), industrial guilds, e. g. smiths, bakers, potters, shipowners, mining companies (aurifodinarum, argentifodinarum, salinarum, societas), contractors for the revenue (vectigalium publicorum societas), social clubs (sodalitates, sodalitia), friendly societies (tenuiorum collegia) (cf. Mommsen, de Collegiis et sodaliciis Romanorum; Karlowa, Rom. Rechtsg. 2 § 2).
Other juristic persons, not so visibly embodied in any natural individuals, e. g. temples, churches, hospitals, almshouses, or any other beneficent aims personified, are called by civilians, not Corporations, but Foundations.
The state, though not strictly speaking a juristic person, as invested with rights of property, was called in the time of the republic Aerarium. Under the first emperors, when the public treasure was divided between the emperor and the senate, the senate, as in a proprietary position representing the republic, was called Aerarium, while the treasury of the emperor was called Fiscus. At an uncertain date, but after the time of M. Aurelius, when all power was undisguisedly absorbed by the emperor, and the public chests were united, the terms Aerarium and Fiscus lost their distinctive meanings, and we find them used convertibly in the compilations of Justinian. The Fiscus, as a proprietary unit, came to have a special legal status and to be invested with peculiar privileges.
Juristic persons, though invested with rights of property, being mere fictions or ideal unities, are, strictly speaking, incapable of making a declaration of intention; for how can a fiction have an intention? It is true that slaves could acquire property and active obligations for their proprietors; but a slave could not aliene property, nor be himself subject to a civil obligation, nor be a party to a suit: and therefore Universities could not make such dispositions by means of their slaves. In this respect they resemble infants and lunatics; and as infants and lunatics must be represented by their guardians and curators, so juristic persons must be represented by the agents designated and defined by their constitution. The temporary representative of a Corporation, for the purpose of suing and being sued, was called Actor; a permanent representative for this Edition: current; Page:  purpose was called Syndicus, Gaius in Dig. 3, 4, 1. The constitutions of juristic persons are too various to admit of any general definition. But a juristic person was only bound by the act of its representative, in so far as such juristic person was benefited thereby. Dig. 12, 1, 27.
Although a Universitas is said to hold common property, the relation of the members of a Universitas must not be identified with that of Co-proprietors (communio). A co-proprietor is the separate proprietor of an undivided ideal portion, which he can aliene, mortgage, and otherwise dispose of; and which, by requiring a partition (actio communi dividundo), he can always reduce to a real portion: whereas the whole of the common property can only be dealt with if the co-proprietors are unanimous. Members of a Universitas, on the contrary, cannot demand a partition; and dispositions of the property of the Universitas can only be made by the vote of a majority, sometimes only by a majority of two-thirds of the members.
Every juristic person was originally incapable of being instituted heir, as Pliny mentions in the case of municipalities: Nec heredem institui nec praecipere posse rempublicam constat, Epist. 5, 7. ‘Neither an inheritance nor a legacy by praeceptio (which implies that the legatee is also heir, 2 § 217) can be left to a municipality.’ Juristic persons were not, as is sometimes stated by Roman jurists, subject to this incapacity simply because, owing to the idea of an artificial person not having yet been distinctly formed, they were regarded as personae incertae, 2 § 238, but also because, being fictions, they were incapable of entering on an inheritance (aditio), which involves acceptance on the part of the heir, and excludes representation. First the senate, disregarding this difficulty, allowed municipalities to be instituted heirs by their own liberti, Ulpian 22, 5: and subsequently the Emperor Leo, a. d. 469, gave to municipalities the capacity of being instituted her by any testator, Cod. 6, 24, 12. No general enactment extended this capacity to all Corporations, but some received it as a special privilege.
Originally municipalities, like other juristic persons, were incapable of taking bequests (legata), but subsequently they were declared capable by Nerva and Hadrian, Ulpian 24, 28; 2 § 195: and this capacity was extended to Collegia, Templa and Churches, Dig. 34, 5, 20. Towns were also capable of taking successions by fideicommissum, Ulpian 22, 5.
Under Christian legislation Pious Foundations (pia corpora) were made capable of taking hereditas and legatum: and testamentary dispositions of hereditas and legatum, that would otherwise have been void by the rule avoiding devises to incerta persona, e. g. a devise Edition: current; Page:  to the poor of a town who, not forming a corporation, were not persona certa, acquired validity from the pious purpose of the disposition.
The origin and extinction of Universitates, Collegia, &c. required the assent of the Emperor. The special privileges and incapacities which we have indicated, by their analogy to status, may perhaps justify the mention of Universities in the law of Persons. Savigny, §§ 85-102.
§ 1. Superiore commentario de iure personarum | exposuimus; modo uideamus de rebus; quae uel in nostro patrimonio sunt uel extra nostrum patrimonium habentur.
Inst. 2, 1 pr.
§ 2. Summa itaque rerum diuisio in duos articulos diducitur: nam aliae sunt diuini iuris, aliae humani.
§ 3. Diuini iuris sunt ueluti res sacrae et religiosae.
Inst. 2, 1, 7.
§ 4. Sacrae sunt quae diis superis consecratae sunt; religiosae quae diis Manibusrelictae sunt.
Inst. 2, 1, 8.
§ 5. Sed sacrum quidem hoc solum existimatur quod ex auctoritate populi Romani consecratum est, ueluti lege de ea re lata aut senatusconsulto facto.
Inst. l. c.
§ 6. Religiosum uero nostra uoluntate facimus mortuum inferentes in locum nostrum, si modo eius mortui funus ad nos pertineat.
Inst. 2, 1, 9.
§ 7. Sed in prouinciali solo placet plerisque solum religiosum non fieri, quia in eo solo dominium populi Romani est uel Caesaris, nos autem possessionem tantum uel usumfructum habere uidemur; utique tamen etiamsi non sit religiosum, pro religioso habetur.
§ 7 a. Item quod in prouinciis non ex auctoritate populi Romani consecratum est, proprie sacrum non est, tamen pro sacro habetur.
§ 8. Sanctae quoque res, uelut muri et portae, quodammodo diuini iuris sunt.
Inst. 2, 1, 10.
§ 9. Quod autem diuini iuris est, id nullius in bonis est; id uero, quod humani iuris est, plerumque alicuius in bonis est: potest autem et nullius in bonis esse; nam res hereditariae, antequam aliquis heres existat, nullius in bonis sunt.
Inst. l. c.
§ 9 b. —
(8 fere uersus in C legi nequeunt)
—| *e domino.
§ 10. Hae autem quae humani iuris sunt, aut publicae sunt aut priuatae.
§ 11. Quae publicae sunt, nullius uidentur in bonis esse; ipsius enim uniuersitatis esse creduntur. priuatae sunt quae singulorum hominum sunt.
§ 12. Quaedam praeterea res corporales sunt, quaedam in 〈corporales〉.
Inst. 2, 2 pr.
§ 13. Corporales hae 〈sunt〉 quae tangi possunt, uelut fundus homo uestis aurum argentum et denique aliae res innumerabiles.
Inst. l. c.
§ 14. Incorporales sunt quae tangi non possunt, qualia sunt ea quae iure consistunt, sicut hereditas ususfructus obligationes quoquo modo contractae. nec ad rem per〈tinet, quod in hereditate res corporales con-〉tinentur et fructus qui ex fundo percipiuntur corporales sunt, et quod ex aliqua obligatione nobis debetur, id plerumque corporale est, ueluti fundus homo pecunia; nam ipsum ius successionis et ipsum ius utendi fruendi et ipsum ius obligationis incorporale est. eodem numero sunt iura praediorum urba|norum et rusticorum. —|— altius tollendi —|— luminibus uicini aed — non extollen|di, ne luminibus uicini officiatur. | item fluminum et stilicidiorum — ius, ut—|— in aream—|—|—|— ius aquae ducendae—|—
Inst. 2, 2, 2 and 3.
§ 1. In the preceding book the law of persons was expounded; now let us proceed to the law of things, which are either subject to private dominion or not subject to private dominion.
§ 2. The leading division of things is into two classes: things subjects of divine, and things subjects of human right.
§ 3. Subjects of divine right are things sacred and things religious.
§ 4. Sacred things are those consecrated to the gods above; religious, those devoted to the gods below.
§ 5. Sacred things can only become so with the authority of the people of Rome, by consecration in pursuance of a law or a decree of the senate.
§ 6. A religious thing becomes so by private will, when an individual buries a dead body in his own ground, provided the burial is his proper business.
§ 7. On provincial soil, according to most authorities, ground does not become religious as the dominion belongs to the people of Rome or the Emperor, and individuals only have possession or usufruct, but such places, though not properly religious, are to be regarded as quasi-religious.
§ 7 a. Just as provincial soil, in default of the authorization of the people of Rome, is rendered by consecration not sacred, but quasisacred.
§ 8. Sanctioned places are to a certain extent under divine dominion, such as city gates and city walls.
§ 9. Things subject to divine dominion are exempt from private dominion; things subject to human dominion are generally subject to private dominion, but may be otherwise: for things belonging to an inheritance before any one has become heir have no actual owner.
§ 10. Things subject to human dominion are either public or private.
§ 11. Things public belong to no individual, but to a society or corporation; things private are subject to individual dominion.
§ 12. Again, things are either corporeal or incorporeal.
§ 13. Things corporeal are tan gible, as land, a slave, clothing, gold, silver, and innumerable others.
§ 14. Things incorporeal are intangible; such as those which have an existence simply in law as inheritance, usufruct, obligation, however contracted. For though an inheritance comprises things corporeal, and the fruits of land Edition: current; Page:  enjoyed by a usufructuary are corporeal, and obligations generally bind us to make over the conveyance of something corporeal: land, slaves, money; yet the right of succession, the right of usufruct, and the right of obligation are incorporeal. So are the rights attached to property in houses and land. The following are rights attached to property in houses; the right of raising a building and thereby obstructing the lights of a neighbouring building; the right of prohibiting a building being raised, so that one’s lights may not be interfered with; the right of letting rain-water fall in a body or in drops on a neighbour’s roof or area; the right of having a sewer through a neighbour’s area, or a window in a neighbour’s wall (cf. Epit. 2, 1, 3). The following are rights attached to property in land: iter, a right of way on foot or horseback; actus, a right of way for ordinary carriages; via, a right of paved way for heavy-laden wagons; pecoris ad aquam appulsus, a right of watering cattle; aquae ductus, a right of conveying water through the tenement of another.
Having treated of the law of Persons (unequal rights), we proceed to the law of Things (equal rights), and the first right which Gaius intends to discuss is the right called Dominion. Seduced, however, by an ambiguity of the word Res, which signifies either a right or the subject of a right, his opening statements (§§ 12-14) are deplorably confused.
In order to see our way, let us first examine Res as denoting the Object of a right. Every right implies, as we have stated, a duty; and every right or duty implies at least two persons, one of whom is entitled to the right while the other is liable to the duty. The immediate object of every right is an act or forbearance of the person who is liable to the duty. But the act or forbearance generally relates to some body, that is, to some tangible portion of the external world, whether a thing or a person. This body, accordingly, may be called the mediate, indirect, or secondary Object of Edition: current; Page:  the right. The secondary object of a right, however, is not always a body; it may be corporeal or incorporeal. For instance, dominium over land is a right to forbearance on the part of all the world from molestation of the owner in dealing with the land. A servitude, say a right of way, is a right to forbearance on the part of all the world from molestation of the person entitled when he passes over certain land. A contractual right is a right to a positive act or forbearance on the part of a determinate person, say, to the conveyance or delivery of a certain piece of land. In these cases, land, the secondary object of the right, is something corporeal. So, too, when a person is the object of a right; for instance, a child or a gladiator, 3 § 199, in the possession (detention or custody) of the parent or employer, and whose removal from such possession engenders in the removing party an obligation ex delicto. But in primordial rights, the object, at least as distinguished from the two parties in whom the right and duty respectively vest, is something incorporeal. A man has a right to forbearance on the part of all the world from molestation in his life, health, locomotion, honour. These objects of the right are incorporeal. Other rights, apparently, have no determinate object, corporeal or incorporeal, to which they are correlated. In a right to the services of a menial or gladiator, for instance, it would be hard to indicate any secondary or corporeal object to which the obligation of the menial or gladiator relates.
It is clear that no division of Objects of right will coincide with a classification of Rights: while, if we divide Res in the metaphysical sense of the World, or Being, or Existence (a sense suggested by the differentiae, corporalis, and incorporalis), Dominium, like all other rights, will be a member of the branch res incorporales, or Ownership. Gaius, however, wishes us to identify Dominium with res corporalis, and to make Obligation and the fractions of Dominium (servitutes), and even some forms of Dominium (e. g. hereditas), members of the contra-distinguished branch, res incorporalis. (Cf. 3 § 83, omnes ejus res incorporales et corporales quaeque ei debita sunt.)
Gaius was probably not entirely responsible for this confusion of thought, which, perhaps, was too deeply inwoven in the formulae of Roman jurisprudence to be easily eliminated by an institutional writer. E. g. the declaration (intentio) of a real action (in rem actio) was of the form: Si paret (1) illum fundum—(2) illam hereditatem—actoris esse. (Cf. 4 § 3 In rem actio est cum aut corporalem rem intendimus nostram esse aut jus aliquod nobis competere.) Now as hereditas is a jus successionis, § 14, it is clear that, if the second formula is correct, the first formula ought to be, not, Si paret illum fundum—but, Si paret illius fundi dominium—actoris Edition: current; Page:  esse. To meet this and similar inaccuracies of the framers of the formularies, Gaius is misled into identifying in res corporalis two things completely disparate, Right and the corporeal thing or Secondary Object of a right. There is a similar confusion in English law, chattels, tenements, and hereditaments being sometimes used to denote the objects, movable or immovable, of certain rights, sometimes the rights over those objects: and just as Res is divided into Corporalis and Incorporalis, so Hereditaments are divided into Corporeal and Incorporeal; although, if the term denotes a right, both branches are equally incorporeal: if it denotes the secondary object of a right, both branches are equally corporeal.
We shall find hereafter, 4 §§ 138-170, comm., that the position of possession in Roman jurisprudence—whether it belongs to the department of jus in rem or of obligatio ex delicto—is a moot question; but at present we need do no more than notice the existence of the controversy. We need also only to indicate a division of rights and duties into single rights and duties, and aggregates of rights and duties (universitas juris), such as Hereditas. A universitas juris includes Obligations as well as Rights, Jus in personam as well as Jus in rem, being in fact the succession of one person to which another person succeeds. But in spite of the diverse character of the elements of which it is composed, the juris universitas itself, or the ideal whole of these various elements, is regarded, e. g. in Hereditatis petitio, as a real Right, not an Obligation; as a Jus in rem, not a Jus in personam.
As Gaius thought that he could obtain the idea of Dominium by a division of Res into corporales and incorporales, so he seems to have thought that he could distinguish private dominium, the special department which he intends to examine, from other forms of dominium by a further division of Res. The phrases res divinae, res humanae, res communes, res publicae, res privatae, do indeed suggest the notion that res privatae is a specific member of the genus Res; but the appearance is fallacious. Very little reflection will convince us that res divinae, res publicae, res privatae are not a division of the objects of property (res); for the same thing, a piece of ground, for instance, may be an object of divine or public or private dominion; but merely a division of proprietors. In res divinae, the only doubtful case, the gods were deemed to be proprietors. Sed et illa interdicta quae de locis sacris et de religiosis proponuntur veluti proprietatis causam continent, Dig. 43, 1, 2, 2. ‘The interdicts respecting sacred and religious places protect a quasi-property.’
The division of the objects of right by their physical differences, the only way in which they can be divided, though only of subordinate Edition: current; Page:  importance, and though it cannot furnish the distinctions of Dominium and Obligation, nor of Public and Private dominium, yet has a considerable influence on jurisprudence, and demands a certain amount of attention. Thus ocean, air, and light, as opposed to the earth, are by their nature essentially res communes. Being incapable of appropriation, they have not been appropriated and are held in communism. Again, in wild animals, as opposed to tame, property is only coextensive with possession. On the difference between specific and generic things, or things consumed by use, quae pondere numero mensurave constant, and things not consumed by use, is founded the distinction between the contracts of mutuum and commodatum. Cf. 3 § 90. On the same difference of specific and generic things are founded different rules relating to the contract of sale, 3 §§ 139-141, comm.; and the distinction of movables and immovables founds important differences in Roman and other systems of law.
The phrases in nostro patrimonio and extra nostrum patrimonium, § 1, are apparently equivalent to alicujus in bonis and nullius in bonis, § 9, and to the expressions we meet elsewhere, in commercio and extra commercium.
Of res communes, or things such as air and running water, which sometimes come under discussion (cf. Inst. 2, 1, 1 Et quidem naturali jure communia sunt omnium haec: aer et aqua profluens et mare et per hoc litora maris) but are not mentioned by Gaius, we may observe, that they only fall within the province of positive law, as belonging to the jurisdiction of each particular state.
All the things within the territory of a given state are subject to its dominion (dominium eminens), that is, are res publicae in a general sense of the term. Of these things it allows the dominium over some to vest in private individuals for their own advantage, while it retains the dominium over others in itself as if it were a corporation or collective person (personarum universitas). This gives us a division of all things into res privatae and res publicae in a narrower sense of the term. We must note, however, that the dominium of the state is not exactly similar to private dominium, that is to say, is not dominium in the proper sense or the sense in which the word is used in civil law. For the civil dominium of private persons is a right protected and sanctioned by a political superior, whereas a sovereign state is by hypothesis in subjection to no superior. A state, then, can only be said to have dominium in a modified sense of the word, that is, so far as it is not restrained by any positive law of any superior from using and dealing with certain things as it may please.
Of things which are objects of public dominion, some are vested Edition: current; Page:  immediately in the state, others in subordinate persons, single or corporate, magistrates, for instance, and municipalities, to be held by such persons for various public purposes. Among these we might also reckon res divini juris, though as dedicated to religious purposes, such things were regarded by the Romans as no man’s property, §§ 3-6.
Another division of res publicae is into res in patrimonio populi and res non in patrimonio populi. Under the former are included the public treasury, the public domain, public slaves, bequests lapsing to the state (caduca) or res privatae otherwise devolving on the state; in other words, all things of which the state as universitas retains not only the property but also the use and disposition (res enim fiscales quasi propriae et privatae principis sunt, Dig. 43, 8, 2, 4). The other class includes high roads, public rivers, public buildings, &c., that is, all things of which the property is in the community and the use in the members of the community. Or we may say that the property is in the universitas, but it is subject to a personal servitude (usus) vested in all the private members of that universitas (singuli, universi).
Not only res publicae but res privatae may be thus subject. For instance, the banks of public rivers and the trees thereupon are the property of the adjacent proprietors; but the navigators of these rivers have the right of mooring, landing, unlading, and using the banks in various other ways, Inst. 2, 1, 4.
Ownership (dominium) absolute or pre-eminently so called, may be defined as a right of unlimited duration, imparting to the owner a power of indefinite enjoyment or use, and a power of aliening from all who in default of alienation by him might succeed by descent; or, in other words, from all successors interposed between himself and the sovereign as ultimus heres. It is accordingly sometimes said to consist of jus utendi, fruendi, abutendi; where abusus includes the power of consumption or destruction, of dereliction, and of disposition (sale, exchange, gift, mortgage, lease, &c.). Another element is equally important, the right of exclusion (jus prohibendi). Another is the jus transmittendi, i. e. the right of leaving the integral right, in the absence of Disposition, to those whom he would presumably have wished to be his successors.
Besides ownership (dominium) Roman law recognizes various kinds of partial property, real rights over an object of which the dominium is in another person, called jura in re or jura in re aliena, rights which fall short of absolute property but approximate to it in various degrees. Such rights, which are limitations of ownership, are servitudes, § 14, mortgage (pignus), superficies, and emphyteusis. These may all be regarded as detached Edition: current; Page:  fractions of ownership, portions of the right of dominion taken from the proprietor and vested in another person. Servitudes are explained by Justinian in the parallel passage of his Institutes (2, 3-5), and, together with the other jura in re aliena, demand here a brief notice.
Servitudes are (1) praedial or real (praediorum), that is, belong to a person as owner of a certain house or land (praedium dominans) in respect of a house or land belonging to another proprietor (praedium serviens), or (2) personal (personarum), that is, are vested in a person without relation to his ownership of praedium dominans, and being thus inseparably attached to him they are inalienable and determine at his death. (Compare in English law the division of easements into easements appurtenant to land and easements in gross.)
Praedial servitudes are servitudes in the strictest sense, being contrasted with ownership by their precise and definite circumscription. Ownership (dominium) is a right against the world which gives to the party in whom it resides a power of dealing with the subject which is not capable of exact definition. Servitude is such a right against the world as gives to the party in whom it resides a power of using the subject which is susceptible of precise description. It is a definite subtraction from the indefinite powers of use and exclusion which reside in the owner; or a right against the owner and the rest of the world to make certain use of a thing or prohibit certain uses.
Praedial servitudes are (1) rustic, relating to land, or (2) urban, relating to houses. Urban servitudes are further subdivided into Positive or Affirmative and Privative or Negative. The following considerations will show the meaning of this division and its origin in the nature of Property.
Servitudes are limitations of, or deductions from, another person’s ownership or dominium. Dominium contains, among other elements, (A) certain powers of action (jus utendi), and (B) certain powers of exclusion (jus prohibendi). Restrictions on these powers will be (a) a certain necessitas non utendi, and (b) a certain necessitas patiendi. Correlative to these duties on the part of the owner of the servient tenement will be certain rights of the owner of the dominant tenement, viz. (α) a certain jus prohibendi, and (β) a certain jus utendi, or in other words, (α) a certain negative servitude, and (β) a certain affirmative servitude. As it happens that all the servitudes which public policy has recognized in relation to land are of an Affirmative character (except Si concedas mihi jus tibi non esse in fundo tuo aquam quaerere, minuendae aquae meae gratia, Dig. 8, 1, 15 pr. though, as Windscheid remarks, there is no reason why this should not also be an urban servitude—) and relate to some transient action (except Ut tugurium mihi habere liceret in tuo, scilicet si habeam pascui servitutem aut pecoris appellendi, ut, si Edition: current; Page:  hiems ingruerit, habeam quo me recipiam, Dig. 8, 3, 6, 1), they may be called jus faciendi: while those relating to houses are both Affirmative and Negative (jus prohibendi). Affirmative Urban servitudes, implying some permanent structure, may, in conformity with classical usage (e. g. jus tignum immissum habendi) for the sake of distinction from the Rural servitudes, be called jus habendi: they resemble them in the generic character that they are each a jus utendi.
(1) Instances of Rural servitude (jus faciendi) are iter, or jus eundi, right of way for beast and man on foot or on horseback over the servient tenement to the dominant tenement; actus or jus agendi, right of way for ordinary carriages (not for heavy-laden wagons); via (or jus vehendi?), right of paved way for heavy-laden wagons; aquae haustus, the right of drawing water from a private spring; aquae ductus, the right of conveying water over the servient tenement; pecoris ad aquam appulsus, the right of watering cattle; jus pecoris pascendi, the right of pasturing cattle; jus calcis coquendae, the right of burning lime; jus cretae eximendae, the right of quarrying for chalk; jus arenae fodiendae, the right of taking sand; jus silvae caeduae, the right of cutting wood in a wood suitable for the purpose.
(2) Instances of affirmative urban servitudes are jus tigni immittendi, the right of inserting a beam in a neighbour’s wall; jus oneris ferendi, the right of resting a weight on a neighbour’s wall or column (this servitude involves on the part of the servient owner the positive obligation of repairing the servient wall (refectio); whereas all other servitudes, as real rights, are contradistinguished from obligations or personal rights, by corresponding to the merely negative duty of abstention; cf. Windscheid, Pandekten, 1 § 211 a, note 3); jus protegendi, the right of projecting a roof over the soil of a neighbour; jus stillicidii recipiendi or avertendi or immittendi, the right of directing the rainfall on to a neighbour’s roof or area; jus cloacae immittendae, the right of making a sewer through the area of a neighbour; servitus luminum or jus luminis immittendi, the right of having a window in a neighbour’s wall; jus officiendi luminibus vicini, the reacquired right of an owner to diminish the light of a neighbour; jus altius tollendi, the reacquired right of an owner to increase the height of a structure, § 31; the right of storing fruit in his villa, ut fructus in vicini villa cogantur coactique habeantur; of placing quarried stones on his land, posse te cedere jus ei esse terram, rudus, saxa, jacere posita habere, et ut in tuum lapides provolvantur ibique positi habeantur, Dig. 8, 3, 3, 1 and 2. Vangerow holds that Aquaeductus, implying jus habendi, though it is servitus Rustica as to the land from which water is taken, is servitus Urbana as to the land over which water is conveyed.Edition: current; Page: 
(3) Instances of jus prohibendi are jus altius non tollendi, the right of forbidding a neighbour to raise the height of his buildings; jus ne prospectui officiatur, the right of having a prospect unintercepted; jus ne luminibus officiatur, the right of having the access of light to one’s windows obstructed; jus stillicidii non avertendi, the reacquired right of prohibiting my neighbour from discharging his rainfall into my area. Inst. 2, 3.
Personal servitudes (Inst. 2, 4 and 5) are rights of a less limited character in respect of user, but more restricted as to duration than praedial: instances are Habitatio, the right of occupying a house; Usus, the right of using a thing and consuming its immediate fruits or products, without the right of letting the thing or selling its products; of acquiring, in other words, its rent and profits, which may be regarded as its mediate or secondary fruits. Fructus, usually called Ususfructus, the further right of leasing the thing and selling its fruits. Habitatio, Usus, Ususfructus were usually, though not invariably, life interests, and, unlike real servitudes, implied Detention of the object; Possession of it, as opposed to Detention (4 §§ 138-170, comm.), remaining in the proprietor. For the modes of creating and vindicating servitudes, see §§ 28-33; 4 § 88, comm. Servitus was the only jus in re aliena belonging to jus civile. The other jura in re aliena, subsequently instituted, were pignus, superficies and emphyteusis.
Pignus or hypotheca, as developed by praetorian law, was the right of a creditor in a thing belonging to his debtor, maintainable against any one, in order to secure satisfaction of his debt. The praetorian action, by which the creditor could claim possession of the thing pledged, corresponding to the vindicatio of the owner, is called actio quasi Serviana in rem or hypothecaria. See 3 §§ 90, 91, comm.
Superficies is the right of a person who, having rented land for building on a long or perpetual lease, has built a house on it, which according to jus gentium, by the rule of Accession, is the property of the proprietor of the soil; cf. Inst. 2, 1, 29. The Praetor, however, recognized in the superficiarius a jus in re which he protected by an interdict de superficie and an actio in rem utilis.
Jus in agro vectigali or emphyteusis, as this species of right came to be called subsequently to the time of Gaius, from waste lands of the Emperor being let out under this kind of tenancy to be planted or cultivated, was a perpetual lease which transferred to the tenant or emphyteuta most of the rights of the owner. Accordingly he could maintain actio vectigalis in rem against any one to recover possession of the land thus leased to him. See 3 § 145. Although emphyteusis might be of unlimited duration, and was alienable without the consent of the owner, subject to his right of pre-emption, yet the owner had a right of recovering the land for breach of condition, Edition: current; Page:  or failing heirs of the emphyteuta, much as the feudal lord of a fee could recover the fief on forfeiture or escheat of the tenant, emphyteusis being even regarded by some as the model on which feudal tenure was instituted. This forfeiture or escheat to the lord of the fee makes property in land theoretically imperfect, like emphyteusis, falling short of ownership. Property in chattels, on the contrary, is not held of a superior, and, therefore, is absolute.
The Profits and Easements of English law generally correspond to the Servitutes of Roman law. But the principle: Servitutium non ea natura est ut aliquid faciat quis, sed ut aliquid patiatur aut non faciat, Dig. 8, 1, 15, 1: ‘Servitudes are not a right to a performance but to a permission or forbearance:’ would exclude from the class of Servitudes some members of the class of Profits; e. g. Rents, which are said to lie in render, i. e. to involve a performance of the party burdened, not in prender, i. e. not to consist in an act of the party entitled. Roman law adhered strictly to the principle that Real rights, or rights against the world, can only correlate to negative duties, duties of forbearance; and that rights correlating to positive obligations, or duties of performance, can only be Personal; i. e. can only regard a particular individual and his universal successors.
§§ 14 a-27. Having described the various kinds of real right (jus in rem), i. e. dominium and its fractions (jura in re), we proceed to the titles of real rights, that is to say, the events to which these rights are annexed by the law; in other words, the modes prescribed by the law by which such rights may be acquired; in other words, the legal definitions of the classes of persons in whom such rights are declared to be vested.
The Titles of real rights are divisible into Titles by which single real rights are acquired and Titles by which aggregates of rights (universitates jurum) are acquired.
Titles by which single real rights are acquired are divisible into Titles sanctioned by the civil law (jus civile) and Titles sanctioned by natural law (jus gentium, jus naturale), natural law denoting the rules of Roman law introduced by praetors, jurists and statutes, as consonant to the general reason of mankind.
Titles to ownership by civil law are mancipatio, in jure cessio, usucapio, and others which will be mentioned. Titles by natural law are traditio, occupatio, accessio, and others which will be mentioned, § 35. We commence with Titles by civil law.
§ 14 a. — aut mancipi sunt aut nec mancipi. | Mancipi sunt—| item aedes in Italico solo—|—|—serui|tutes praediorum urbanorum nec mancipi sunt. |
1 § 120; Ulp. 19, 1.
§ 15. Item stipendiaria praedia et tributaria nec mancipi | sunt. sed quod diximus—|mancipi esse—|—statim ut nata sunt mancipi esse putant; Nerua uero et Proculus et ceteri diuersae scholae auctores non aliter ea mancipi esse putant, quam si domita sunt; et si propter nimiam feritatem domari non possunt, tunc uideri mancipi esse incipere, cum ad cam aetatem peruenerit, qua domari solent.
§ 16. Item ferae bestiae nec mancipi sunt uelut ursi leones, item ea animalia quae fere bestiarum numero sunt, ueluti elephanti et cameli; et ideo ad rem non pertinet, quod haec animalia etiam collo dorsoue domari solent; nam ne nomen quidem eorum animalium illo tempore 〈notum〉 fuit, quo constituebatur quasdam res mancipi esse, quasdam nec mancipi.
§ 17. Item fere omnia quae incorporalia sunt nec mancipi sunt, exceptis seruitutibus praediorum rusticorum; nam eas mancipi esse constat, quamuis sint ex numero rerum incorporalium.
§ 18. Magna autem differentia est inter mancipi res et nec mancipi.
§ 19. Nam res nec mancipi ipsa traditione pleno iure alterius fiunt, si modo corporales sunt et ob id recipiunt traditionem.
§ 20. Itaque si tibi uestem uel aurum uel argentum tradidero siue ex uenditionis causa siue ex donationis siue quauis alia ex causa, statim tua fit ea res, si modo ego eius dominus sim.
§ 21. In eadem causa sunt prouincialia praedia, quorum alia stipendiaria alia tributaria uocamus. stipendiaria sunt ea, quae in his prouinciis sunt, quae propriae populi Romani esse intelleguntur; tributaria sunt ea, quae in his prouinciis sunt, quae propriae Caesaris esse creduntur.
Inst. 2, 1, 40.
§ 22. Mancipi uero res sunt, quae per mancipationem ad alium transferuntur; undeetiam mancipi res sunt dictae. quod autem ualet 〈mancipatio, idem ualet et in iure cessio.
§ 23. Et〉 mancipatio quidem quemadmodum fiat, superiore commentario tradidimus.
§ 24. In iure cessio autem hoc modo fit: apud magistratum populi Romani, ueluti praetorem, is cui res in iure ceditur rem tenens ita dicit hvnc ego hominem ex ivre qviritivm mevm esse aio; deinde postquam hic uindicauerit, praetor interrogat eum qui cedit, an contra uindicet; quo negante aut tacente tunc ei qui uindicauerit, eam rem addicit; idque legis actio uocatur. hoc fieri potest etiam in prouinciis apud praesides earum.
§ 25. Plerumque tamen et fere semper mancipationibus utimur. quod enim ipsi per nos praesentibus amicis agere possumus, hoc non est necesse cum maiore difficultate apud praetorem aut apud praesidem prouinciae agere.
§ 26. Quodsi neque mancipata neque in iure cessa sit res mancipi
(6 uersus in C legi nequeunt)—|*plena possessio concessa—|ex formula qua hi qu —|—|—| fructus na—|.
§ 27. Item adhuc i—|
(4 uersus in C legi nequeunt)—|non fuissent—|
(7 uersus in C legi nequeunt) — s —|—| est quo nomine—|—ere uel—|praedium—|dem ulla libera ciuitas—admo|nendi sumus— | esse, prouincialis soli nexum non e— | significationem solum Italicum mancipi est, pro|uinciale nec mancipi est. aliter enim ueteri lingua a|—mancipa—|.
§ 14 a. Things are further divided into mancipable and not mancipable; mancipable are land and Edition: current; Page:  houses in Italy; tame animals employed for draught and carriage, as oxen, horses, mules, and asses; rustic servitudes over Italian soil; but urban servitudes are not mancipable.
§ 15. Stipendiary and tributary estates are also not mancipable. According to my school animals which are generally tamed are mancipable as soon as they are born; according to Nerva and Proculus and their followers, such animals are not mancipable until tamed, or if too wild to be tamed, until they attain the age at which other individuals of the species are tamed.
§ 16. Things not mancipable include wild beasts, as bears, lions; and semi-wild beasts, as elephants and camels, notwithstanding that these animals are sometimes broken in for draught or carriage; for their name was not even known at the time when the distinction between res mancipi and nec mancipi was established.
§ 17. Also things incorporeal, except rustic servitudes on Italian soil; for it is clear that these are mancipable objects, although belonging to the class of incorporeal things.
§ 18. There is an important difference between things mancipable and things not mancipable.
§ 19. Complete ownership in things not mancipable is transferred by merely informal delivery of possession (tradition), if they are corporeal and capable of delivery.
§ 20. Thus when possession of clothes or gold or silver is delivered on account of a sale or gift or any other cause, the property passes at once, if the person who conveys is owner of them.
§ 21. Similarly transferable are estates in provincial lands, whether stipendiary or tributary; stipendiary being lands in provinces subject to the dominion of the people of Rome; tributary, lands in the provinces subject to the dominion of the Emperor.
§ 22. Mancipable things, on the contrary, are such as are conveyed by mancipation, whence their name; but surrender before a magistrate has exactly the same effect in this respect as mancipation.
§ 23. The process of mancipation was described in the preceding book (1 § 119).
§ 24. Conveyance by surrender before a magistrate (in jure cessio) is in the following form: in the presence of some magistrate of the Roman people, such as a praetor, the surrenderee grasping the object says: I say this slave is my property by title Quiritary. Then the praetor interrogates the surrenderor whether he makes a counter-vindication, and upon his disclaimer or silence awards the thing to the vindicant. This proceeding is called a statute-process; it can even take place in a province before the president.
§ 25. Generally, however, and almost always the method of mancipation is preferred; for why should a result that can be accomplished in private with the assistance of our friends be prosecuted Edition: current; Page:  with greater trouble before the praetor or president of the province?
§ 26. If neither mancipation nor surrender before the magistrate is employed in the conveyance of a mancipable thing . . . .
§§ 14 a-23. Mancipable things—things taken by the hand and so alienable—were at first, probably, the more important accessories of a farm, that is, slaves and beasts of burden—oxen, horses, mules and asses (1 § 120), land itself in Italy and rural servitudes attaching to such land being subsequently made mancipable.
These, the objects of principal value to an agricultural community, became alienable by means of the formal proceeding by bronze and balance, called mancipation, which Gaius says (1, 119) is an imaginary sale.
In its origin, however, mancipation appears to have been not an imaginary, but a genuine sale for valuable consideration. The introduction of coined money by making the weighing of the bronze in the scales a formality first gave the proceeding an appearance of unreality, but in order to maintain its original character, the Twelve Tables, which were passed at the time when this important monetary change took place, expressly declared that no property should pass by mancipation, unless the price was actually paid to the mancipating party or security given him for it (cf. Inst. 2, 1, 41 Venditae vero et traditae non aliter emptori adquiruntur, quam si is venditori pretium solverit vel alio modo ei satisfecerit, veluti expromissore aut pignore dato: quod cavetur etiam lege duodecim tabularum)—where traditae Edition: current; Page:  is an evident Tribonianism for mancipatae. But this law was afterwards evaded by juristic ingenuity, the practice of paying only a nominal sum—a single sesterce—being held to be a sufficient compliance with it. This made it possible to use mancipation as a mere conveyancing form. Even in the case of genuine sales, it was found advantageous only thus to pay a nominal sum in the mancipation itself and to make the payment of the purchase money something entirely apart, for by this means the mancipating party in fact escaped the liability imposed on him by the Twelve Tables of paying, as warrantor of the title (auctor), double the price to the other party to the transaction in case of the latter being evicted (cf. Cic. pro Mur. 2, 3, in Caec. 19, 54), and it had the further advantage that the purchaser was enabled to acquire ownership by the mancipation before he had paid the actual purchase money (cf. Muirhead, Roman Law, § 30; Sohm, pp. 51, 61). How, by means of the nuncupation and by collateral fiduciary agreements, mancipation was adapted to effect various legal purposes, may be seen in other parts of the text and commentary.
The form of mancipation (1, 119) shows its archaic origin. If, as has been thought by many modern writers, the witnesses to it originally represented the five classes of the Roman people, mancipation, at least in its ultimate form, cannot have been earlier than the Servian constitution, by which this division of the people was made. The advantage of requiring the presence of a number of citizens to bear testimony to important transfers of property in an age when writing was not in common use is apparent.
§§ 24-26. In jure cessio—the other mode of transfer peculiar to Jus Civile, and so likewise confined to Roman citizens, is an adaptation of the legis actio per vindicationem to conveyancing purposes, depending for its operation on the collusive admission by the defendant of the supposed plaintiff’s claim (confessus pro judicato est). This fictitious process, which is not so primitive in character as mancipation, though it was also recognized by the law of the Twelve Tables, must have been introduced to circumvent the law in order to effect objects unattainable by direct means, such as the manumission of slaves. Though Quiritary ownership could be thus conveyed, it was, for the reason given in § 25, rarely employed for this purpose. But for creating or transferring some kinds of rights surrender before a magistrate was essential, §§ 30, 34.
In jure cessio or surrender before a magistrate cannot fail to recall to an English lawyer two similar modes of alienation that recently existed in English jurisprudence, alienation by Fine and alienation by Recovery, both of which, like in jure cessio, were based on a fictitious action; in both of which, that is to say, although the parties did not really stand in the relation of adverse Edition: current; Page:  litigants, the alienee was supposed to recover an estate by process of law. By a Fine, an action commenced against the alienor and at once terminated by his acknowledging the right of the alienee, a tenant in tail could aliene the fee simple, so far at least as to bar his own issue. By a Recovery, a tenant in tail could convey an absolute estate in fee. This was an action supposed to be, not like a Fine immediately compromised, but carried on through every regular stage to the conclusion; whereby the alienee recovered judgement against the alienor, who in his turn recovered judgement against an imaginary warrantor whom he vouched to warranty (cf. laudat auctorem, 3 § 141, comm.).
Res nec mancipi, that is all objects of individual ownership, other than res mancipi, were the only things allowed to pass in complete ownership (pleno jure) simply by tradition, § 19.
This informal mode of alienation did not, like mancipatio, in jure cessio, and usucapio, belong to Jus Civile, but to Jus Gentium, § 65; and was of later introduction than these.
The tradition or informal delivery of some res nec mancipi must, however, have been common from the earliest times, though such tradition would have been regarded at first merely as a delivery of possession, to be protected by the law of theft, not as a title of ownership, to be asserted by vindicatio. At a later period, however, in order to facilitate commerce, tradition became by the influence of jus gentium a mode of acquiring ownership in things which did not belong to the privileged class of res mancipi. By tradition, which is a transfer of possession, ownership may be also transferred, if the transferor is himself owner; otherwise conformably to the principle ‘Nemo plus juris transferre potest, quam ipse habet’—possession only passes, bona fide possession, if the transferee knows nothing of his defective title, malâ fide, if he is aware of it. If we consider Surrender before a Magistrate, Mancipation, Tradition, we shall see that they are only three forms of one identical title, Alienation. The substance or essence of the title, the intention on the one side to transfer property, on the other to accept it, is the same in all three; it is only the adventitious, or accidental, or evidentiary portion of the title in which they differ.
Although delivery of possession, like the solemnities of mancipation and surrender, is, as compared with the will or intention of the parties, only an evidentiary and declaratory part of the title; yet both parcels, delivery of possession, as well as agreement, are indispensable in the transfer of ownership. ‘Traditionibus et usucapionibus dominia rerum, non nudis pactis transferuntur,’ Cod. 2, 3, 20. ‘Tradition and usucapion, not bare agreement, operate as a transfer of ownership.’ Tradition, which is only applicable to Edition: current; Page:  corporeal things, is usually effected by some physical act of appropriation, but it may take place without any such actual delivery being made at the time. This occurs when a vendor agrees to hold the property he sells on account of, or as agent of, the purchaser (constitutum possessorium), or when a person already holding a thing on account of the vendor, e. g. as a deposit, or loan, agrees to purchase it (traditio brevi manu). (Inst. 2, 1, 44.)
We have spoken of tradition as a title whereby ownership was acquired. Tradition, however, was only an element, usually the final element, of the complex mode of acquisition, to which it gives its name. To be capable of passing property, delivery must be accompanied by another element, usually an antecedent element, some contract of sale or other legal ground, which is evidence of an intention to aliene. ‘Nunquam nuda traditio transfert dominium, sed ita si venditio vel aliqua justa causa praecesserit, propter quam traditio sequeretur,’ Dig. 41, 1, 31 pr. It is clear that bare delivery, or transfer of physical control, without any further element of Title, cannot pass Dominium, for in Loan for Use (commodatum) such transfer merely passes what may be called Detention without Possession; in Pledge (pignus) it passes what may be called derivative Possession; in Deposit it usually passes Detention alone, but sometimes Possession also, though in this case also it is derivative Possession, not Possession of the thing as one’s own. (4 §§ 138-170, comm.) The cases in which Ownership (Dominium) is passed by Tradition may be reduced to three classes, traditio donandi animo, traditio credendi animo, and traditio solvendi animo. In the first, it simply confers ownership on the donee; in the second, it confers ownership on the transferee, and subjects him to an obligation; in the third, it confers ownership on the transferee, and discharges the transferor of an obligation. In the two latter cases, i. e. tradition by way of loan, as of money (mutui datio), and tradition by way of payment (solutio), the disposition or justa causa accompanying tradition contains much that is unessential to the transfer of dominium or ownership, the only absolutely essential element being the intention of the parties to convey and take dominium. In Donation the justa causa traditionis consists solely of this essential element. The justa causa, then, which must accompany delivery, must involve the animus or voluntas transferendi dominii, and this, apparently, is given as the whole of the matter in a passage of Gaius quoted in Digest: ‘Hae quoque res, quae traditione nostrae fiunt, jure gentium nobis adquiruntur; nihil enim tam conveniens est naturali aequitati quam voluntatem domini volentis rem suam in alium transferre ratam haberi,’ Dig. 41, 1, 9, 3. Tradition is a mode of acquisition, ‘in accordance with Jus Gentium, for it is a plain dictate of natural justice, that the Edition: current; Page:  will of an owner to transfer his ownership to another should be allowed to take effect.’
In one case, as we have seen, the operation even of contract and delivery combined was limited by the Twelve Tables, namely, in Sale. Hence it came about that tradition did not operate a transmutation of property without a further condition—payment of the purchase money, unless the sale is intended to be a sale on credit, or satisfaction is made to the vendor in some way. Inst. 2, 1, 41. Delivery sometimes precedes the intention to transfer, for instance, in a conditional sale; in which case the transfer of property may be suspended until the condition is fulfilled. The intended transferee may be an incerta persona, for instance, when money is scattered among a mob by a praetor or consul (missilium jactus). Inst. 2, 1, 46.
Tradition in Roman law was never fictitious; it was always an actual delivery of a power of physical or corporeal control, so the delivery of the keys of a house is not something symbolical or fictitious, but a real transfer of a power of exercising dominion. The restriction of tradition, as a mode of acquiring ownership, to res nec mancipi had previously to the time of Gaius lost much of its importance, the Praetor protecting one to whom a res mancipi, such as land, had been delivered, as if Quiritarian ownership of it had been obtained by usucapion, § 41. In Justinian’s time Tradition had entirely superseded the civil titles of surrender before the magistrate and mancipation: the ancient distinction between res mancipi and res nec mancipi being no longer in existence.
§ 21. This section contains the clearest statement which we possess of the technical distinction between the two classes of provinces instituted by Augustus. Those which were not under the direct control of the Princeps were technically under the control of the Senate and People (compare Dio Cassius, liii. 12); but, as the People was mainly represented by the Senate, they are often spoken of as Senatorial Provinces. The provinces of Caesar were far more numerous; about the time of Gaius they numbered thirty-one—twenty-one being governed by Legati pro praetore, nine by Procurators, and Egypt by its Praefect—while the Public Provinces under Proconsuls numbered but eleven. See Marquardt, Staatsverwaltung, i. p. 494. The attempt to keep these departments distinct was a failure; and the control of the Public Provinces by the Princeps was now very considerable, especially in matters of jurisdiction. But the technical difference between the two kinds of provinces was still preserved in the reign of Marcus Aurelius. Thus we find that Emperor causing provinces to be transferred from the one to the other category in obedience to military considerations, and asking the Senate to vote money to him from the Aerarium, the treasury Edition: current; Page:  which contained the dues from the Public Provinces (Vita Marci, 22, Dio Cassius, lxxi. 33).
During the Republic the taxes paid by provincials had been called stipendium—a word which points to the view originally taken that these revenues were meant to meet military expenses; for stipendium means pay for the army. During the Principate the word tributum came also to be used for imperial taxes; but this passage of Gaius shows that stipendium was still employed for the dues paid by the Public Provinces. The distinction between stipendiary and tributary provinces is perhaps based on a difference in the mode of collecting, not of levying, the taxes. It seems that in the Public Provinces the taxes were still collected by the local governments themselves and paid to the Quaestors, whereas in Caesar’s Provinces the Procurators came into direct contact with the tax-payer. The mode of collection was in the second case direct, in the first indirect. It is also possible that the ownership of the soil in Caesar’s Provinces was regarded as vested in the Princeps, that of the soil in the Public Provinces as vested in the Roman state (see Mommsen, Staatsrecht, ii. p. 1088), and this distinction may be implied in the two classes of provincialia praedia mentioned by Gaius.
The mode of taxation was uniform for the whole Empire, and the assessments were made at intervals by the Emperor’s officials. The taxes were either imports on the land (tributum soli) or on the person (tributum capitis). The land-tax was in most provinces paid either in money or grain, more usually in the former, although in certain minor districts it was delivered in the form of other produce. The personal tax might be one on professions, income, or movable property. Occasionally it was a simple poll-tax, this latter burden being probably imposed on those provincials whose property fell below a certain rating.
§ 24. The legati Caesaris or Presidents of imperial provinces had originally on jurisdiction to preside over legis actio, but this was afterwards conferred upon them, Tac. Ann. 12, 60.
§ 26. Gaius probably explained in this place the effect of tradition of a res mancipi, § 41, and then went on to treat of the jus commercii. Ulp. 19, 4, 5 Mancipatio locum habet inter cives Romanos et Latinos coloniarios Latinosque Junianos eosque peregrinos quibus commercium datum est. Commercium est emendi vendendique invicem jus.
§ 28. 〈Res〉 incorporales traditionem non recipere manifestum est.
§ 29. Sed iura praediorum urbanorum in iure cedi 〈tantum〉 possunt; rusticorum uero etiam mancipari possunt.
§ 30. Vsusfructus in iure cessionem tantum recipit. nam dominus proprietatis alii usumfructum in iure cedere potest, ut ille usumfructum habeat et ipse nudam proprietatem retineat. ipse ususfructuarius in iure cedendo domino proprietatis usumfructum efficit, ut a se discedat et conuertatur in proprietatem; alii uero in iure cedendo nihilo minus ius suum retinet; creditur enim ea cessione nihil agi.
§ 31. Sed haec scilicet in Italicis praediis ita sunt, quia et ipsa praedia mancipationem et in iure cessionem recipiunt. alioquin in prouincialibus praediis siue quis usumfructum siue ius eundi agendi aquamue ducendi uel altius tollendi aedes aut non tollendi, ne luminibus uicini officiatur, ceteraque similia iura constituere uelit, pactionibus et stipulationibus id efficere potest, quia ne ipsa quidem praedia mancipationem aut 〈in〉 iure cessionem recipiunt.
§ 32. Sed cum ususfructus et hominum et ceterorum animalium constitui possit, intellegere debemus horum usumfructum etiam in prouinciis per in iure cessionem constitui posse.
§ 33. Quod autem diximus usumfructum in iure cessionem tantum recipere, non est temere dictum, quamuis etiam per mancipationem constitui possit eo quod in mancipanda proprietate detrahi potest; non enim ipse ususfructus mancipatur, sed cum in mancipanda proprietate deducatur, eo fit ut apud alium ususfructus, apud alium proprietas sit.
§ 34. Hereditas quoque in iure cessionem tantum recipit.
§ 35. Nam si is, ad quem ab intestato legitimo iure pertinet hereditas, in iure eam alii ante aditionem cedat, id est antequam heres extiterit, proinde fit heres is cui in iure cesserit, ac si ipse per legem ad hereditatem uocatus esset; post obligationem uero si cesserit, nihilo minus ipse heres permanet et ob id creditoribus tenebitur, debita, uero pereunt eoque modo debitores hereditarii lucrum faciunt; corpora uero eius hereditatis proinde transeunt ad eum cui cessa est hereditas, ac si ei singula in iure cessa fuissent.
§ 36. Testamento autem scriptus heres ante aditam quidem hereditatem in iure cedendo eam alii nihil agit; postea uero quam adierit si cedat, ea accidunt, quae proxime diximus de eo ad quem ab intestato legitimo iure pertinet hereditas, si post obligationem 〈in〉 iure cedat.
§ 37. Idem et de necessariis heredibus diuersae scholae auctores existimant, quod nihil uidetur interesse utrum 〈aliquis〉 adeundo hereditatem fiat heres, an inuitus existat; quod quale sit, suo loco apparebit. sed nostri praeceptores putant nihil agere necessarium heredem, cum in iure cedat hereditatem.
§ 38. Obligationes quoquo modo contractae nihil eorum recipiunt. nam quod mihi ab aliquo debetur, id si uelim tibi deberi, nullo eorum modo quibus res corporales ad alium transferuntur id efficere possum, sed opus est, ut iubente me tu ab eo stipuleris; quae res efficit, ut a me liberetur et incipiat tibi teneri; quae dicitur nouatio obligationis.
§ 39. Sine hac uero nouatione non poteris tuo nomine agere, sed debes ex persona mea quasi cognitor aut procurator meus experiri.
§ 28. Incorporeal things are obviously incapable of transfer by delivery of possession (traditio).
§ 29. But while before a magistrate Edition: current; Page:  urban servitudes can only be created by surrender before a magistrate; rural servitudes may either be acquired by this method or by mancipation.
§ 30. Usufruct can only be created by surrender. A usufruct surrendered by the owner of the property passes to the surrenderee, leaving the bare property in the owner. A usufruct surrendered by the usufructuary to the owner of the property passes to the latter and is merged in the ownership. Surrendered to a stranger it continues in the usufructuary, for the surrender is deemed inoperative.
§ 31. These modes of creating usufruct are confined to estates in Italian soil, for only these estates can be conveyed by mancipation or judicial surrender. On provincial soil, usufructs and rights of way on foot, horseback, and for carriages, watercourses, rights of raising buildings or not raising, not obstructing lights, and the like, must be created by pact and stipulation; for the lands themselves, which are subject to these servitudes, are incapable of conveyance by mancipation or surrender before a magistrate.
§ 32. In slaves and other animals usufruct can be created even on provincial soil by surrender before a magistrate.
§ 33. My recent statement that usufruct was only constituted by surrender before a magistrate was not inaccurate, although it may in this sense be created by mancipation that we may mancipate the property and reserve the usufruct; for the usufruct itself is Edition: current; Page:  not mancipated, though in mancipating the property the usufruct is reserved so that the usufruct is vested in one person and the property or ownership in another.
§ 34. Inheritances also are only alienable by surrender before a magistrate.
§ 35. If the person entitled by the statutory rules of the civil law of intestacy surrender the inheritance before acceptance, that is to say, before his heirship is consummated, the surrenderee becomes heir just as if he was entitled by agnation; but if the agnate surrenders after acceptance, in spite of the surrender he continues heir and answerable to the creditors, his rights of action being extinguished and the debtors to the estate thus discharged of liability without payment, while the ownership in the corporeal objects of the inheritance passes to the surrenderee just as if it had been surrendered in separate lots.
§ 36. The surrender of an inheritance by a person instituted heir by will before acceptance is inoperative; but after acceptance it has the operation just ascribed to the agnate’s surrender of an intestate succession after acceptance.
§ 37. And so has a surrender by a necessary successor according to the authorities of the other school, who maintain that it seems immaterial whether a man becomes heir by acceptance or whether he becomes heir ipso jure, irrespective of his intention (a distinction that will be explained in its proper place): according to my school a necessary heir’s surrender of the inheritance is inoperative. [3 § 85.]
§ 38. Obligations, in whatever way contracted, are incapable of transfer by either method. For if I wish to transfer to you my claim against a third person, none of the modes whereby corporeal things are transferred is effective: but it is necessary that at my order the debtor should bind himself to you by stipulation: whereupon my debtor is discharged of his debt to me and becomes liable to you; which transformation is called novation of an obligation.
§ 39. In default of such novation he cannot sue in his own name, but must sue in my name as my cognitor or procurator.
§ 28. So incorporeal hereditaments in English law were said to lie in grant, not in feoffment, i. e. to be only conveyable by deed, or writing under seal; whereas corporeal hereditaments were conveyable by feoffment, i. e. by livery of seisin or delivery of possession.
§ 30. Inalienability was no peculiar characteristic of Usufruct and other personal servitudes. Alienation of rights, or singular succession as opposed to inheritance or universal succession, was the exception, not the rule. Dominion over res singulae was alienable, but almost all other rights were intransferable. If we except the case of hereditas legitima delata, § 35, hereditas, as we shall see, was inalienable: and what is said of Urban and Rural praedial servitudes, §§ 29, 30, refers to their creation, not to their alienation. In the law of Persons, Patria potestas, 1 § 134, and Tutela in some cases, 1 § 168, could be transferred but only by surrender before a magistrate (in jure cessio), i. e. a process which feigned that there was no transfer. Manus and mancipium could be extinguished but not transferred [Ihering, § 32], except that, apparently, mancipium could be retransferred to the natural parent or mancipator, 1 § 132.
§ 31. It appears that convention (pactio et stipulatio) alone unaccompanied by tradition or quasi-tradition was capable of creating a right analogous to a Roman servitude in provincial land, to which in jure cessio and mancipatio were inapplicable, in opposition to the principle of Roman law, as stated by some modern writers, that mere agreement can only create at the utmost an obligation (jus in personam), and in order to create a jus in rem must be accompanied by delivery of possession. But in our authorities this principle is confined to res corporales, which alone admit of real tradition. Exceptional instances in which agreement without any further accompaniment Edition: current; Page:  creates a jus in rem, that is, transfers either dominion or jus in re aliena, are hypotheca (see 3 § 91, comm.) and societas omnium bonorum (see 3 § 148). Vangerow, however, holds, § 350, that pactio and stipulatio could not create a genuine servitus, enforceable against the servient person or tenement, but only an Obligatio, enforceable against the contracting party and his heirs: that in the time of Gaius this was all that could be accomplished; but that afterwards, when quasitraditio of res incorporalis was recognized as practicable, genuine Servitudes could be thus constituted. The distinction between solum Italicum and provinciale was subsequently abolished, and in jure cessio and mancipatio disappeared. In the Institutes of Justinian we are told that both praedial servitudes (Inst. 2, 3, 4) and the personal servitude of usufruct (Inst. 2, 4, 2) are created by pacts and stipulations, nothing being there said of quasi-traditio, as a condition of acquiring servitudes. The combination of pact and stipulation for the purpose has been explained as an amalgamation of foreign and Roman law, a mere pact being recognized by the former, but unless embodied in a stipulation unenforceable by the latter (cf. Sohm, § 69; Dernburg, Pandekten, § 251, n. 16).
§ 32. In accordance with the principle that movables are personal, a Roman could convey movable property by conveyances confined to citizens, wherever such property was situated.
The servitus altius tollendi, or the right of increasing the height of an edifice, is at first sight very enigmatical. My right of increasing the height of my building, and thus obstructing the lights of my neighbour, would seem to be part and parcel of my unlimited rights of dominion: and, if a dispute arose, one would think that the burden of proof would be on my neighbour, who would have to prove a special limitation of my rights as owner of a praedium serviens and a special right residing in himself as owner of a praedium dominans: that is to say, that instead of my having to prove a servitude or jus altius tollendi, my neighbour would have to prove a servitude or jus altius non tellendi. Cum eo, qui tollendo obscurat vicini aedes, quibus non serviat, nulla competit actio, Dig. 8, 2, 9. ‘A man who by building obscures his neighbour’s lights, unless subject to a servitude, is not actionable.’ Altius aedificia tollere, si domus servitutem non debeat, dominus ejus minime prohibetur, Cod. 3, 34, 8. ‘A man cannot be prevented from raising the height of his house unless it is subject to a servitude.’ The same rule is laid down in English law. The following is perhaps the most probable solution of the problem:
The extinction of Rural and Urban servitudes was governed by different rules. The extinction of a Rural servitude was more easily accomplished than that of an Urban servitude: it was effected by Edition: current; Page:  simple non-user (non utendo) on the part of the dominant property for a period, originally, of two years, afterwards of ten. The extinction of an Urban servitude demanded, besides the negative omission of use on the part of the dominant, a positive possession of freedom (usucapio libertatis) on the part of the servient owner. Gaius (ad Edictum Provinciale, Dig. 8, 2, 6) thus explains the difference: in a servitus ne amplius tollantur aedes, or ne luminibus aedium officiatur, if the windows of the dominant house are closed with masonry there is a non-usus of the servitude on the part of the dominant owner; if at the same time the height of the servient house is raised there is possession of freedom on the part of the servient owner. Or in a servitus tigni immissi, if the dominant owner removes the beam from his neighbour’s wall there is on his part non-usus; if the servient owner builds up the orifice in which the beam was inserted, there is on his part usucapio libertatis. Originally Servitudes, like Dominium, could be acquired by Usucapion; and as Usucapion was applied to the extinction of Urban Servitudes, it was regarded by the jurists as a mode of acquiring or of creating an antagonistic servitude. On the extinction of a Rural servitude, the servient property simply recovered its original dimensions: an Urban servitude was a permanent diminution of the servient property, and on its extinction the servient property, instead of dilating to its original size, recovered what it had lost in the shape of the annexation of a contrary servitude. When at an unknown date the Usucapion of servitudes was abolished by a lex Scribonia, an exception was made in favour of these Contrary servitudes, which in fact were not genuine servitudes, but merely the expression of the greater difficulty of extinguishing an Urban servitude. Libertatem servitutium usucapi posse verius est, quia eam usucapionem sustulit lex Scribonia, quae servitutem constituebat, non etiam eam, quae libertatem praestat sublata servitute, Dig. 41, 3, 4, 28. ‘The better view is that extinction of servitude by usucapion is admissible, for the usucapion abolished by the lex Scribonia was usucapion whereby a servitude is constituted, not that which liberates by extinction of servitude.’ Thus he who laboured under a disability of building (jus altius non tollendi) was regarded on its extinction as having acquired the opposite easement, jus altius tollendi; he who was relieved of the servitus ne luminibus officiatur was regarded as acquiring a jus officiendi luminibus vicini; he who was relieved from the servitus stillicidii avertendi in tectum vel aream vicini was deemed to acquiie a jus stillicidii non avertendi, Gaius ad Edictum Provinciale. Dig. 8, 2, 2. It does not appear that the ordinary requisites of Usucapio, titulus and bona fides (§ 61, comm.), were required in this usucapio libertatis.
In usucapio libertatis, a right being acquired, the ten years are Edition: current; Page:  complete on the commencement of the last day: in non-usus, a right being lost, the ten years are not complete till the last day is terminated.
The three servitudes, ne prospectui officiatur, ne luminibus officiatur. ne altius tollatur, are similar in character, but differ in their degree of extension. The servitus ne luminibus officiatur is not so extensive as the servitus ne prospectui officiatur, for that may amount to an obstruction of prospect which does not cause a diminution of light, Dig. 8, 2, 15: but is wider than servitus altius non tollendi, because light may be intercepted by other causes than buildings, by plantation, for instance, though building is the principal means of interception.
Servitus luminum has been already noticed, §§ 1-14, comm., as apparently identical with jus luminis immittendi, i. e. the right of having a window in a neighbour’s wall. Luminum servitute constituta id adquisitum videtur ut vicinus lumina nostra excipiat. Dig. 8, 2, 4. ‘The servitude of Lights entitles the owner of the dominant house to have a window in the wall of his servient neighbour.’
It appears from the above explanation that the servitus luminum and the servitus ne luminibus officiatur belong to different categories, for the servitus luminum, like the jus officiendi luminibus, belongs to the category of jus habendi; while the servitus ne luminibus officiatur belongs to the category of jus prohibendi.
§ 34. Cf. 3 §§ 85-87. The statement that an inheritance is not mancipable may seem inconsistent with what we are afterwards told of the testament by bronze and balance, § 102. There is, however, no real inconsistency. The subject mancipated in the will by bronze and balance, though a universitas, was not an inheritance—there was no inheritance to mancipate, for nemo est heres viventis—but the collective rights—familia, patrimonium—of the testator.
§ 38. The mode of transferring obligations may be more properly considered hereafter, when we examine the titles by which Jus in personam originates or terminates, 3 §§ 155-162, comm. Gaius glanced at the titles to Hereditas and Obligatio because he was treating of Res incorporales under which they are included; but he should have abstained from discussing Obligatio because he is now dealing with Jus in rem, and he should have abstained from discussing Hereditas because he is now dealing with Res singulae.
§ 40. Sequitur ut admoneamus apud peregrinos quidem unum esse dominium; nam aut dominus quisque est, aut dominus non intellegitur. quo iure etiam populus Romanus olim utebatur: aut enim ex iure Quiritium unusquisque dominus erat, aut non intellegebatur dominus. sed postea diuisionem accepit dominium, ut alius possit esse ex iure Quiritium dominus, alius in bonis habere.
§ 41. Nam si tibi rem mancipi neque mancipauero neque in iure cessero, sed tantum tradidero, in bonis quidem tuis ea res efficitur, ex iure Quiritium uero mea permanebit, donec tu eam possidendo usucapias; semel enim inpleta usucapione proinde pleno iure incipit, id est et in bonis et ex iure Quiritium tua res esse, ac si ea mancipata uel in iure cessa 〈esset.
§ 42. Vsucapio autem〉 mobilium quidem rerum anno conpletur, fundi uero et aedium biennio; et ita lege xii tabularum cautum est.
Inst. 2, 6 pr.
§ 43. Ceterum etiam earum rerum usucapio nobis conpetit, quae non a domino nobis traditae fuerint, siue mancipi sint eae res siue nec mancipi, si modo eas bona fide acceperiinus, cum crederemus eum qui traderet dominum esse.
§ 44. Quod ideo receptum uidetur, ne rerum dominia diutius in incerto essent, cum sufficeret domino ad inquirendam rem suam anni aut biennii spatium, quod tempus ad usucapionem possessori tributum est.
Inst. l. e.
§ 45. Sed aliquando etiamsi maxime quis bona fide alienam rem possideat. non tamen illi usucapio procedit, uelut si quis rem furtiuam aut ui possessam possideat; nam furtiuam lex xii tabularum usucapi prohibet, ui possessam lex Iulia et Plautia.
Inst. 2, 6, 1.
§ 46. Item prouincialia praedia usucapionem non recipiunt.
§ 47. 〈Item olim〉 mulieris, quae in agnatorum tutela erat, res mancipi usucapi non poterant, praeterquam si ab ipsa tutore 〈auctore〉 traditae essent; idque ita lege xii tabularum cautum erat.
§ 48. Item liberos homines et res sacras et religiosas usucapi non posse manifestum est.
§ 49. Quod ergo uulgo dicitur furtiuarum rerum et ui possessarum usucapionem per legem xii tabularum prohibitam esse, non eo pertinet, ut ne ipse fur quiue per uim possidet usucapere possit (nam huic alia ratione usucapio non conpetit, quia scilicet mala fide possidet); sed nec ullus alius, quamquam ab eo bona fide emerit, usucapiendi ius habeat.
Inst. 2, 6, 3.
§ 50. Vnde in rebus mobilibus non facile procedit, ut bonae fidei possessori usucapio conpetat, quia qui alienam rem uendidit et tradidit furtum committit; idemque accidit etiam si ex alia causa tradatur. sed tamen hoc aliquando aliter se habet; nam si heres rem defuncto commodatam aut locatam uel apud eum depositam existimans eam esse hereditariam uendiderit aut donauerit, furtum non committit; item si is, ad quem ancillae ususfructus pertinet, partum etiam suum esse credens uendiderit aut donauerit, furtum non committit; furtum enim sine adfectu furandi non committitur. aliis quoque modis accidere potest, ut quis sine uitio furti rem alienam ad aliquem transferat et efficiat, ut a possessore usucapiatur.
Inst. 2, 6, 3 and 4.
§ 51. Fundi quoque alieni potest aliquis sine ui possessionem nancisci, quae uel ex neglegentia domini uacet, uel quia dominus sine successore decesserit uel longo tempore afuerit; quam si ad alium bona fide accipientem transtulerit, poterit usucapere possessor; et quamuis ipse, qui uacantem possessionem nactus est, intellegat alienum esse fundum, tamen nihil hoc bonae fidei possessori ad usucapionem nocet, 〈cum〉 inprobata sit eorum sententia, qui putauerint furtiuum fundum fieri posse.
Inst. 2, 6, 7.
§ 52. Rursus ex contrario accidit ut qui sciat alienam rem se possidere usucapiat, ueluti si rem hereditariam, cuius possessionem heres nondum nactus est, aliquis possederit; nam ei concessum 〈est usu〉capere, si modo ea res est quae recipit usucapionem; quae species possessionis et usucapionis pro herede uocatur.
§ 53. Et in tantum haec usucapio concessa, est, ut et res quae solo continentur anno usucapiantur.
§ 54. Quare autem hoc casu etiam soli rerum annua constituta sit usucapio, illa ratio est, quod olim rerum hereditariarum possessione uelut ipsae hereditates usucapi credebantur, scilicet anno. lex enim xii tabularum soli quidem res biennio usucapi iussit, ceteras uero anno. ergo hereditas in ceteris rebus uidebatur esse, quia soli non est quia neque corporalis est. 〈et〉 quamuis postea creditum sit ipsas hereditates usucapi non posse, tamen in omnibus rebus hereditariis, etiam quae solo tenentur, annua usucapio remansit.
§ 55. Quare autem omnino tam inproba possessio et usucapio concessa sit, illa ratio est, quod uoluerunt ueteres maturius hereditates adiri, ut essent qui sacra facerent, quorum illis temporibus summa obseruatio fuit, et ut creditores haberent a quo suum consequerentur.
§ 56. Haec autem species possessionis et usucapionis etiam lucratiua uocatur; nam sciens quisque rem alienam lucri facit.
§ 57. Sed hoc tempore iam non est lucratiua. nam ex auctoritate Hadriani senatus-consultum factum est ut tales usucapiones reuocarentur. et ideo potest heres ab eo qui rem usucepit hereditatem petendo proinde eam rem consequi, atque si usucapta non esset.
§ 58. Necessario tamen herede extante nihil ipso iure pro herede usucapi potest.
§ 59. Adhuc etiam ex aliis causis sciens quisque rem alienam usucapit. nam qui rem alicui fiduciae causa mancipio dederit uel in iure cesserit, si eandem ipse possederit, potest usucapere, anno scilicet, 〈etiam〉 soli si sit. quae species usucapionis dicitur usureceptio, quia id quod aliquando habuimus recipimus per usucapionem.
§ 60. Sed fiducia contrahitur aut cum creditore pignoris iure, aut cum amico, quo tutius nostrae res apud eum sint; et siquidem cum amico contracta sit fiducia, sane omni modo conpetit ususreceptio; si uero cum creditore, soluta quidem pecunia omni modo conpetit, nondum uero soluta ita demum conpetit, si neque conduxerit eam rem a creditore debitor, neque precario rogauerit, ut eam rem possidere liceret; quo casu lucratiua ususcapio conpetit.
§ 61. Item si rem obligatam sibi populus uendiderit eamque dominus possederit, concessa est ususreceptio; sed hoc casu praedium biennio usurecipitur. et hoc est quod uulgo dicitur ex praediatura possessionem usurecipi; nam qui mercatur a populo praediator appellatur.
§ 40. We must next observe that for aliens there is only one ownership and only one owner at the same time of a thing, and so it was in ancient times with the people of Rome, for a man had Edition: current; Page:  either quiritary dominion or none at all. They afterwards decomposed dominion so that one person might have quiritary ownership of an object of which another person had bonitary ownership.
§ 41. For if a mancipable thing is neither mancipated nor surrendered before a magistrate but simply delivered to a person, the bonitary ownership passes to the alienee, but the quiritary ownership remains in the alienor until the alienee acquires it by usucapion; for as soon as usucapion is completed, plenary dominion, that is, the union of bonitary and quiritary ownership, vests in the alienee just as if he had acquired the thing by mancipation or surrender before a magistrate.
§ 42. Usucapion of movables requires a year’s possession for its completion, of land and houses, two years’ possession, a rule which dates from the law of the Twelve Tables.
§ 43. Quiritary ownership of a thing may also be acquired by usucapion, when possession of it has been transferred to one by a person who is not the owner of it, and this is the case in things either mancipable or not mancipable, if they are received in good faith by a person who believes the deliverer to be owner of them.
§ 44. The reason of the law appears to be the inexpediency of allowing ownership to be long unascertained, the previous owner having had ample time to look after his property in the year or two years which must elapse before usucapion is complete.
§ 45. Some things, however, notwithstanding the utmost good Edition: current; Page:  faith of the possessor, cannot be acquired by usucapion, things, for instance, which have been stolen or violently possessed, stolen things being declared incapable of usucapion by the law of the Twelve Tables, and things violently possessed by the lex Julia and Plautia.
§ 46. So, too, provincial land and houses are incapable of usucapion.
§ 47. Formerly, when a woman was under her agnate’s guardianship, her mancipable things were not subject to usucapion, unless she herself delivered possession of them with her guardian’s sanction, and this was an ordinance of the Twelve Tables.
§ 48. Free men, also, and things sacred or religious, are obviously not susceptible of usucapion.
§ 49. The common statement that in things stolen or violently possessed, usucapion is barred by the law of the Twelve Tables, means, not that the thief or violent dispossessor is incapable of acquiring by usucapion, for he is barred by another cause, his want of good faith; but that even a person who purchases in good faith from him is incapable of acquiring by usucapion.
§ 50. Accordingly, in things movable a possessor in good faith cannot easily acquire ownership by usucapion, because he that sells and delivers possession of a thing belonging to another is guilty of theft. However, sometimes this is otherwise, for an heir who believes a thing lent or let to, or deposited with, the deceased to be a portion of the inheritance, and sells it or gives it away, is not guilty of theft: again, the usufructuary of a female slave who Edition: current; Page:  believes her offspring to be his property and sells it or gives it away, is not guilty of theft; for there can be no theft without unlawful intention: and similarly other circumstances may prevent the taint of theft from attaching to the delivery of a thing belonging to another, and enable the receiver to acquire by usucapion.
§ 51. Possession of land belonging to another may be acquired without violence, when vacant by neglect of the owner, or by his death without leaving a successor, or his long absence from the country, and an innocent person to whom the possession is transferred may acquire the property by usucapion; for though the original seizer of the vacant possession knew that the land belongs to another, yet his knowledge is no bar to the usucapion of the innocent alienee, as it is no longer held that theft can be committed of land.
§ 52. On the other hand, knowledge that one is acquiring possession of another person’s property (mala fides) does not always prevent usucapion, for any one may seize a portion of an inheritance of which the heir has not yet taken possession and acquire it by usucapion, provided it is susceptible of usucapion, and he is said to acquire by title of quasi heir.
§ 53. With such facility is this usucapion permitted that even land may be thus acquired in a year.
§ 54. The reason why even land in these circumstances demands only a year for usucapion is, that Edition: current; Page:  in ancient times the possession of property belonging to the inheritance was held to be a means of acquiring the inheritance itself, and that in a year: for while the law of the Twelve Tables fixed two years for the usucapion of land and one year for the usucapion of other things, an inheritance was held to fall under the category of ‘other things,’ as it is neither land nor corporeal: and though it was afterwards held that the inheritance itself was not acquirable by usucapion, yet the property belonging to the inheritance, including land, continued acquirable by a year’s possession.
§ 55. The motive for permitting at all so unscrupulous an acquisition was the wish of the ancient lawyers to accelerate the acceptance of inheritances, and thus provide persons to perform the sacred rites, to which in those days the highest importance was attached, and also to secure some one from whom creditors might obtain satisfaction of their claims.
§ 56. This mode of acquisition is sometimes called lucrative usucapion, for the possessor knowingly acquires the benefit of another’s property.
§ 57. In the present day, however, this kind of usucapion is not lucrative, for the Senate on the motion of Hadrian decreed that such usucapions are revocable, and accordingly where a person thus acquired a thing by usucapion, the heir can sue him by hereditatis petitio and recover the thing just as if the usucapion had never been completed.
§ 58. The existence of a necessary heir excludes ipso jure the operation of this kind of usucapion.
§ 59. There are other conditions under which a knowledge of another’s ownership is no bar to usucapion. After a fiduciary mancipation or surrender before a magistrate of his property, if the owner himself should become possessed of it, he recovers his ownership even over land in the period of a year, by what is called usureception or a recovery by possession, because a previous ownership is thereby recovered by usucapion.
§ 60. The fiduciary alienee is either a creditor holding the property as a pledge or a friend to whom the property is made over for safe custody; in the latter case the ownership is always capable of usureception: but in that of a creditor, though the owner can always thus re-acquire after payment of the debt, before payment of the debt he can only re-acquire provided he has not obtained the thing of his creditor on hire or got possession of it by request and licence; in this case he re-acquires by a lucrative usucapion.
§ 61. Again, the owner of a thing mortgaged to the people and sold for non-payment of the mortgage debt may re-acquire it by possession, but in this case, if it is land, usucapion is biennial: and this is the meaning of the saying, that after praediatura (a public sale) land is recoverable by (biennial) possession, a purchaser from the people being called praediator.
§§ 40, 41. Roman law originally only recognized one kind of ownership, called emphatically, quiritary ownership. Gradually, however, certain kinds of ownership were recognized which, though they failed to satisfy all the elements of the definition of quiritary dominion, were practically its equivalent, and received from the courts a similar protection. These kinds of ownership might fall Edition: current; Page:  short of quiritary ownership in three respects, (1) either in respect of the persons in whom they resided, (2) or of the objects to which they related, (3) or of the title by which they were acquired.
(1) To be capable of quiritary ownership a man must have one of the elements of Roman citizenship. Jus quiritium, right quiritary, sometimes, indeed, denotes all the elements of civitas Romana, Roman citizenship (1 §§ 28, 35, comm.). Beneficio principali Latinus civitatem Romanam accipit si ab imperatore jus quiritium impetraverit, Ulpian 3, 2. But the only element of citizenship required for quiritary ownership was commercium, and as we have seen that the Latinus possessed commercium without connubium, the Latinus was capable of quiritary dominion. The alien (peregrinus) on the contrary was incapable, except by special privilege: yet he might have ownership, which he acquired by titles of jus gentium, e g. tradition, occupation, accession, &c., and could maintain by a real action in the court of the praetor peregrinus or praeses provinciae.
(2) Provincial land was not capable of quiritary ownership Originally, indeed, private ownership appears to have been confined to things capable of being taken by the hand (mancipatae), that is to movables; and lands were only subject to public dominion or were the common property of the gens. Private ownership, however, first invaded a portion of the land, the heredium, or hereditary homestead of the gentilis, and finally became a general institution; and ager publicus, as opposed to ager privatus, almost ceased to exist on Italian soil. But in the provinces subsequently conquered, land continued to the end subject exclusively to public dominion; and thus one of the essential features of feudal tenure, the exclusive vesting of absolute or ultimate dominion over land in the sovereign as overlord, a principle commonly supposed to have been first introduced into Europe by the invading German hordes, had already existed, though in a different form, over by far the greater portion of the Roman world. It is true that the provinces were divided into private possessions and public domains; but private possessions as well as public domains were subject to a vectigal, and the tenants of the one and lessees of the other were equally devoid of absolute ownership. Rights over solum provinciale of a more or less limited kind were however acquirable, though not by titles of jus civile, and recoverable by real action, for which Gaius uses the terms possessio and ususfructus, § 7.
(3) Bonitary ownership was distinct both from an alien’s ownership and from rights over provincial land: it may be defined as the property of a Roman citizen in a subject capable of quiritary Edition: current; Page:  ownership, acquired in a way not known to the jus civile, but introduced by the praetor, and protected by his imperium or executive power. We have seen, for instance, that only non-mancipable things were capable of transfer by tradition; suppose, now, that a mancipable thing were conveyed by the owner to a vendee by tradition; the process would not make him quiritary owner; he would be no better than a bona fide possessor, until by the lapse of a year or of two years he acquired quiritary ownership by usucapion. The praetor, however, assisted the less cumbrous mode of alienation by treating the vendee as if he were owner; by giving him, if in possession, the exceptio rei venditae et traditae or plea of sale and delivery against the vendor who sought to recover as quiritary owner, and enabling the vendee, if dispossessed, to recover against the quiritary owner as well as against any third person by utilis vindicatio, called actio Publiciana, in which he would meet the plea of quiritary ownership (exceptio dominii) by the replicatio rei venditae et traditae or by the replicatio doli, a replication which could not be used by a mere bona fide possessor. Bonitary ownership, or ownership established by the praetor, when once invented, was employed by the praetor in other innovations, which he introduced, namely, as we shall see hereafter, in respect of res corporales of an insolvent debtor transferred to a purchaser by universal succession (bonorum venditio), and in respect of his testamentary and intestate succession (bonorum possessio): 3 § 80.
The barbarous term Bonitary (formed from the classical in bonis esse, in bonis habere) has the authority of Theophilus, who speaks of δεσπότης βονιτάριος, 1, 5, 4; he also calls bonitary ownership natural dominion (ϕυσικὴ δεσποτεία), as opposed to statutory, civil, or quiritary dominion (ἔννομος δεσποτεία).
Actio Publiciana was not only the remedy of the bonitary owner, but was also applicable on the alienation of anything whatever by a non-proprietor to an innocent alienee (bona fide possessor) in case the latter lost possession of it.
Usucapion, as in the case of bonitary ownership, might in the lapse of time have given the bona fide possessor plenary dominion, and, with it, vindication in the event of a loss of possession; but if he lost possession whilst usucapion was still incomplete, he would have had no real action (for, not being owner, he could not vindicate), if the praetor had not allowed him to sue by the actio Publiciana, which treated bona fide possession, that is, usucapion possession, or the inception of usucapion, as if it were plenary dominion in respect of every one, except the rightful owner. The latter, however, could defend himself in this action successfully against a mere bona fide possessor by the exceptio dominii, or bring a vindication against a Edition: current; Page:  bona fide possessor who retained possession, though, as we have seen, the quiritary owner was not allowed to avail himself of these means of protection against a person having a praetorian or bonitary title of ownership.
§§ 52-60. An heres was either voluntarius, empowered to accept or reject the inheritance, or necessarius, heir as matter of course, without any such power of election. A voluntary heir was either an agnate entitled to succeed an intestate, or any heir, not being a suus or necessarius heres of the testator, entitled under a will. A necessary heir was either a slave of the testator manumitted by his will, or a self-successor (suus heres), that is, a descendant under power of the testator or intestate, made independent by his death, § 152. In every case of voluntarius heres, so long as the heir had not entered on the inheritance, any stranger was permitted to seize parts of it and acquire property therein by usucapion. The only title (causa, titulus) required for this acquisition was the overture or delation of the inheritance to heres and vacancy of possession. This possession, which Gaius (§ 52) calls pro herede (see Dig. 5, 3, 9) is more properly called pro possessore. Cf. 4 § 144. ‘Possessor, as possessor, is the occupant, who, asked why he possesses, answers, “Because I possess,” and does not claim to be heir even mendaciously, and has no title of possession to allege.’ But according to early Roman law any person who was allowed by the voluntary heir to remain in possession of the inheritance for a year was considered lawfully entitled to it as heir, bona fides on the part of a possessor being at this time immaterial for the purpose of acquiring by usucapion (Muirhead, Roman Law, § 32). The senatusconsultum of Hadrian, referred to in the text, § 57, did not prevent the usucapion, but made it nugatory by allowing the heir to recover the hereditaments by real action (hereditatis petitio, or the interdict Quorum bonorum, 4 § 144), just as if the usucapion had never been completed.
Though the occupant of the vacant hereditament was called praedo, his possession, being encouraged by the lawgiver, was not unlawful until restitution was claimed, Savigny, § 264. This possession is probably the key to an enigmatical rule in Roman law: ipsum sibi causam possessionis mutare non posse, Dig. 41, 3, 33, 1; causam possessionis neminem sibi mutare posse, Dig. 41, 5, 2, 1. ‘No man can change at pleasure his title of possession.’ With the intention, it may be, of limiting the operation of possessio pro herede, an anomalous institution of questionable expediency, the rule declares that a person who commences his possession of a thing in the character of a vendee from a non-proprietor, or holds it as lessee, borrower, depositary, shall not be able, on the death of the true proprietor, to accelerate or initiate usucapion by merely professing Edition: current; Page:  that he ceases to hold in his former character and proceeds to hold as possessor pro herede or pro possessore.
Possessio pro herede was perhaps the germ of the intestate succession of next of kin or cognati, a succession, as we shall see, not originally recognized in Roman law: at least, the family or next of kin of an intestate would generally have the best chance of seizing any movables or immovables that he left; and perhaps it was this equitable result, no less than the object mentioned by Gaius, § 55, that, in the absence of a regular succession of cognati, led the public to look on possessio pro possessore as a rational and salutary institution.
The senatusconsultum mentioned in the text, § 57, is supposed by some commentators to be the same as one mentioned in the Digest (5, 3, 6), as having been passed at the instance of the Emperor Hadrian, when Q. Julius Balbus and P. Juventius Celsus were consuls, a. d. 129—hence called Sc. Juventianum. The institution of usucapio pro herede and pro possessore, or rather the senatusconsultum by which it was defeated, has left its traces in the formula, still to be found in the Digest, of the interdict Quorum bonorum, a remedy whereby a person who claimed either as civil heir (heres), or as praetorian heir (bonorum possessor), established his claim to succeed and recovered possession of the things belonging to the inheritance. See 4 § 144. To leave these traces in the wording of the interdict was according to Vangerow no oversight on the part of Justinian, as although in his legislation the last remnants of the institution of usucapio pro possessore, that is by a mala fide possessor, had been definitely abolished; yet usucapio pro herede, that is, by a bona fide possessor, or one who sincerely though mistakenly held himself to be heir, was still recognized by jurisprudence. § 320.
§ 60. For fiducia cum creditore see 1 § 114, comm., 3 §§ 90, 91, comm. Mancipation to a friend on trust for safe custody must have been the earliest legal form of deposit, as mancipation to a creditor on trust to reconvey was the earliest mode of pledge or mortgage. For precarium see 4 §§ 138-170, comm.
§ 61. The circumstances contemplated seem to be as follows: A proprietor is debtor to the Roman people or state, and his lands are mortgaged as security for the debt. On default of payment, the state exercises the power of sale: if the debtor is not turned out of possession by the purchaser (praediator) in two years he recovers his proprietorship by usureception. It seems that the sale by the people was merely the transfer of the mortgage; so that, if the debtor afterwards satisfied the purchaser, he recovered his land. Kuntze, Excursus des Röm. Rechts, 436.
Provincial lands were not subject to Usucapion; but a possessor for ten years during the presence of the owner in the same province Edition: current; Page:  (inter praesentes), or for twenty years in his absence (inter absentes), if he satisfied the conditions of usucapion, had, according to the provincial edict, the plea called longi temporis praescriptio against any action brought by the owner for recovery, and subsequently was himself allowed to recover the land, as if he were owner of it, so that longi temporis possessio became in later Roman law not simply a limitation of the right of action, but a positive title analogous to usucapion.
Usucapion required something beyond mere possession for a certain period; and something beyond what we hereafter call Interdict possession, 4 §§ 138-170. The conditions of possession which entitled a possessor to appeal for the protection of his possession to the praetor’s interdict were merely that he should have de facto control of the property, as if he were owner of it, all question of right or title being immaterial: nor was a mala fide any more than a bona fide possessor excluded from this protection, unless he had obtained possession from the other party to the interdict by means of violence (vi), or clandestinely (clam), or by his permission (precario). But to produce Usucapion (1) the person and thing to be acquired must be capable of quiritary ownership, and (2) it must not have been taken by any one’s theft or violence from the former owner, § 49: so that land not being subject to furtum was more easily acquired by usucapion than movable property, § 50; (3) the possession of the usucapient must be based on a justa causa or titulus, a ground of acquiring ownership, such as tradition or bequest; (4) and commenced with bona fides on his part, a condition which appears to have been annexed to the law of the Twelve Tables by the interpretation of the prudentes. Bona fides, in the case of titulus of occupancy, which is an original mode of acquisition, e.g. usucapio pro derelicto, is a mistaken belief that the thing is res nullius, has no proprietor. In the case of derivative acquisition it is the belief that the auctor, or person from whom the thing is derived, is either owner or, if not owner, has a power of disposition as agent, guardian, mortgagee, or otherwise. Vangerow, § 321. The Canon law requires during the whole period of such prescription the bona fides which the Civil law only requires at the inception.
Justinian remodelled the law of Usucapion, combining it with longi temporis possessio. Cf. Inst. 2, 6. For movables he extended the period from one year to three years: for immovables he abolished the distinction between Italian and provincial land, and required ten years’ possession if the parties were domiciled in the same province, and twenty years’ possession if they were not domiciled in the same province. Further, he introduced a new usucapion (longissimi temporis praescriptio), which was governed by less stringent conditions Edition: current; Page:  than the ordinary usucapion (longi temporis praescriptio). It applied both to movables and immovables, was not vitiated by certain flaws in the subject (res furtiva, vi possessa), and needed no support of any titulus, but only required bona fides in its inception on the part of the possessor, Cod. 7, 39, 8. It was completed in thirty years.
Usucapion, particularly in this its later form, requires to be carefully distinguished from the Limitation of actions (temporalis praescriptio) with which it has been co-ordinated by some civilians under the name of Acquisitive, as opposed to Extinctive, Prescription. We shall see, 4 § 110, that all actions were originally divided into temporales and perpetuae, temporales being such as could only be brought within a certain period (e.g. in the case of praetorian actions, a year) from the time when the right of action accrued, perpetuae such as were subject to no such limitation. Subsequently, however, even the latter were limited, and no action could be brought after thirty years from the nativity of the action or the time when the right of action accrued (actio nata), Inst. 4, 12 pr. In the case of personal actions there is no danger of confusing Usucapion and Limitation. Usucapion implies possession, and in the case of personal actions, or jus in personam, no such thing as possession is conceivable, for possession only relates to res corporales. Usucapion and the Limitation of real actions are more similar, but even here a distinction may be recognized. Limitation is the extinction of a right by neglect of the person entitled, by his omission to enforce his remedy: Usucapion is the acquisition of a right by something positive on the part of the acquirer, his strictly defined possession for a certain time. Even extraordinary acquisitive prescription requires, as we have seen, bona fides in the commencement of possession: no such condition is attached to Limitation or extinctive prescription.
English law originally only recognized acquisitive prescription in the case of easements and profits, e.g. rights of way; for the acquisition of which the Prescription Act, 2 and 3 Will. 4, c. 71, requires possession for a fixed period. Moreover, since the Act for the limitation of real actions, 3 and 4 Will. 4, c. 27, deprives a proprietor of land of his right as well as his remedy if he omit to bring his action to recover it within twenty years after the right accrued (a limit which by the 37 and 38 Vict. c. 57 was reduced to twelve years), the principle of Usucapion (Acquisitive prescription) in corporeal as well as incorporeal hereditaments may be said to be now recognized in English real property law, though not very distinctly.
Besides the civil titles which we have examined, two others are mentioned by Ulpian: Singularum rerum dominia nobis adquiruntur Edition: current; Page:  mancipatione, traditione, in jure cessione, usucapione, adjudicatione, lege, 19, 2.
Adjudication (for the nature of which see 4 § 42), whereby property might be taken from one individual and vested in another without any of the ordinary methods of conveyance, as in the case of the award of a judex in a partition suit, may be compared in its operation to the vesting orders made by the Court of Chancery under the Trustee Acts. When trustees are disabled by lunacy or infancy from dealing with the estates vested in them, the Court of Chancery is empowered to make orders the effect of which is that the estate becomes immediately vested in the substituted trustees as effectually as if a conveyance had been duly made by the person previously entitled to the legal estate. Another parallel is to be found in the awards of certain commissioners acting under powers given by act of parliament. Thus the order of the Inclosure commissioners for exchange and partition of land closely resembles in subject and effect the adjudicatio of a judex n the actio finium regundorum.
Lex is an ambiguous and miscellaneous title. It is said to include title by caducity (caducum) under the lex Papia Poppaea, and bequest or legacy (legatum), a title deriving its validity from the lex of the Twelve Tables, Ulpian, 19, 17. Extending our view from res singulae, to which Ulpian confines himself, to universitates, lex was an apt denomination of title by will at the period when wills required the ratification of the Comitia Calata, 2 § 101, as at that time testamentary dispositions were really acts of the legislature. Title by lex in this case bears some kind of analogy to conveyances by private act of parliament in English jurisprudence.
It may assist to clear our conception of title if we observe that the title ‘Lege’ is ambiguous, and that (1) while one of its meanings implies an absence of all title, (2) another denotes a miscellaneous group of heterogeneous titles.
(1) The only case in which Law can be said in any distinctive sense to be a cause of acquisition is privilegium or private law. The acquisition of a right by immediate grant from the sovereign (private act of the legislature, private act of parliament) is unlike the acquisition of a person entitled under some general disposition of a universal law. Acquisition by bequest or escheat is not an acquisition by law in any pre-eminent manner, but only in the same degree as is acquisition by mancipation or usucapion or any other title, for all these acquisitions are equally founded on law or some legal disposition of general application. But in acquisition by privilegium there is, in this sense, neither title nor any general law. By a general law is meant a universal proposition, annexing a right or duty to Edition: current; Page:  a title: it knows nothing of individual persons, but stops short at classes of persons, classes, that is, defined by the title. Again, title is, properly speaking, a contingent fact distinct from a corresponding law: a fact which may occur an indefinite number of times, and entitle, that is, invest with rights or duties, an indefinite number of persons, in accordance with the dispositions of one and the same unchanging law. Title, loosely and inaccurately defined as a fact investing a person with a right, would include a privilege, i. e. a law conferring a right immediately on a given individual without the intervention of a fact distinguishable from the law; but title, properly defined as an intervening fact through which a law confers a right mediately, excludes privilege.
Whenever there is a genuine title and a general law, the title is interposed between the general right or duty and the particular person therewith invested, just as the middle term is interposed between the major and minor terms of a syllogism. E.g. All persons characterized by the fact B are invested with the right or duty A: the individual C is characterized by this fact B; therefore this individual is invested with the right or duty A. A genuine law is only the major premiss, the proposition stating the general right or duty, all B is A. The condition, represented by the middle term, which connects or disconnects the right or duty with a person is the title. In a privilegium we have no such premisses and no such middle term. The investment of the particular individual C with a general right or duty is not in this case possible, being unwarranted by any genuine title.
(2) In Bequest and loss of a bequest on account of caducity or ereption there is a general law and a genuine title, but the law is not the title, any more than it is in any other mode of acquisition. Either because these modes include fewer voluntary acts than some closely allied modes (for instance, the legatee may acquire ownership of the property bequeathed to him without any act of acceptance on his part), or, for some other reason, divers modes are lumped together under the head of acquisition by lex. The name, however, besides being a misnomer, is merely a sink or receptacle of miscellaneous unrelated titles, just as we shall find in the doctrine of obligations that miscellaneous titles (variae causarum figurae) are lumped together under the denomination of quasi-contract. As to the displacement in the MS. of §§ 62-64 see below, p. 163.
§ 65. Ergo ex his quae diximus apparet quaedam naturali iure alienari, qualia sunt ea quae traditione alienantur; quaedam ciuili, nam mancipationis et in iure cessionis et usucapionis ius proprium est ciuium Romanorum.
Inst. 2, 1, 11.
§ 66. Nec tamen ea tantum, quae traditione nostra fiunt, | naturali nobis ratione adquiruntur, sed etiam—| occupando ideo—erimus, quia antea nulli|us essent; qualia sunt omnia quae terra mari caelo capiuntur.
§ 67. Itaque si feram bestiam aut uolucrem aut pis|cem — captum — | — eo usque nostrum esse intellegitur, donec nostra custodia coerceatur; cum uero custodiam nostram euaserit et in naturalem libertatem se receperit, rursus occupantis fit, quia nostrum esse desinit; naturalem autem libertatem recipere uidetur, cum aut oculos nostros euaserit, aut licet in conspectu sit nostro, difficilis tamen eius persecutio sit.
Inst 2, 1, 12.
§ 68. In his autem animalibus quae ex consuetudine abire et redire solent, ueluti columbis et apibus, item ceruis qui in siluas ire et redire solent, talem habemus regulam traditam, ut si reuertendi animum habere desierint, etiam nostra esse desinant et fiant occupantium; reuertendi autem animum uidentur desinere habere, cum reuertendi consuetudinem deseruerint.
Inst. 2, 1, 14.
§ 69. Ea quoque quae ex hostibus capiuntur naturali ratione nostra fiunt.
Inst. 2, 1, 17.
§ 70. Sed et id quod per adluuionem nobis adicitur eodem iure nostrum fit; per adluuionem autem id uidetur adici quod ita paulatim flumen agro nostro adicit, ut aestimare non possimus quantum quoquo momento temporis adiciatur; hoc est quod uulgo dicitur per adluuionem id adici uideri quod ita paulatim adicitur, ut oculos nostros fallat.
Inst. 2, 1, 20.
§ 71. Itaque si flumen partem aliquam ex tuo praedio resciderit et ad meum praedium pertulerit, haec pars tua manet.
Inst. 2, 1, 21.
§ 72. At si in medio flumine insula nata sit, haec eorum omnium communis est, qui ab utraque parte fluminis prope ripam praedia possident; si uero non sit in medio flumine, ad eos pertinet qui ab ea parte quae proxima est iuxta ripam praedia habent.
Inst. 2, 1, 22.
§ 73. Praeterea id quod in solo nostro ab aliquo aedificatum est, quamuis ille suo nomine aedificauerit, iure naturali nostrum fit, quia superficies solo cedit.
Inst. 2, 1, 30.
§ 74. Multoque magis id accidit et in planta quam quis in solo nostro posuerit, si modo radicibus terram conplexa fuerit.
Inst. 2, 1, 31.
§ 75. Idem contingit et in frumento, quod in solo nostro ab aliquo satum fuerit.
Inst. 2, 1, 32.
§ 76. Sed si ab eo petamus fundum uel aedificium et inpensas in aedificium uel in seminaria uel in sementem factas ei soluere nolimus, poterit nos per exceptionem doli mali repellere, utique si bonae fidei possessor fuerit.
Inst. l. c.
§ 77. Eadem ratione probatum est quod in chartulis siue membranis meis aliquis scripserit, licet aureis litteris, meum esse, quia litterae chartulis siue membranis cedunt. itaque si ego eos libros easue membranas petam nec inpensam scripturae soluam, per exceptionem doli mali summoueri potero.
Inst. 2, 1, 33.
§ 78. Sed si in tabula mea aliquis pinxerit ueluti imaginem, contra probatur; magis enim dicitur tabulam picturae cedere. cuius diuersitatis uix idonea ratio redditur; certe secundum hanc regulam si me possidente petas imaginem tuam esse, nec soluas pretium tabulae, poteris per exceptionem doli mali summoueri; at si tu possideas, consequens est, ut utilis mihi actio aduersum te dari debeat; quo casu nisi soluam inpensam picturae, poteris me per exceptionem doli mali repellere, utique si bonae fidei possessor fueris. illud palam est, quod siue tu subripueris tabulam siue alius, conpetit mihi furti actio.
Inst. 2, 1, 34.
§ 79. In aliis quoque speciebus naturalis ratio requiritur. proinde si ex uuis 〈aut oliuis aut spicis〉 meis uinum aut oleum aut frumentum feceris, quaeritur utrum meum sit id uinum aut oleum aut frumentum, an tuum. item si ex auro aut argento meo uas aliquod feceris, uel ex tabulis meis nauem aut armarium aut subsellium fabricaueris; item si ex lana mea uestimentum feceris, uel si ex uino et melle meo mulsum feceris, siue ex medicamentis meis emplastrum uel collyrium feceris, 〈quaeritur, utrum tuum sit id quod ex meo effeceris,〉 an meum. quidam materiam et substantiam spectandam esse putant, id est ut cuius materia sit, illius et res quae facta sit uideatur esse, idque maxime placuit Sabino et Cassio. alii uero eius rem esse putant qui fecerit, idque maxime diuersae scholae auctoribus uisum est; sed eum quoque cuius materia et substantia fuerit furti aduersus eum qui subripuerit habere actionem; nec minus aduersus eundem condictionem ei conpetere, quia extinctae res, licet uindicari non possint, condici tamen furibus et quibusdam aliis possessoribus possunt.
Inst. 2, 1, 25.
§ 62. Accidit aliquando, ut qui dominus sit alienandae rei potestatem non habeat, et qui dominus non sit alienare possit.
Inst. 2, 8 pr.
§ 63. Nam dotale praedium maritus inuita muliere per legem Iuliam prohibetur alienare, quamuis ipsius sit uel mancipatum ei dotis causa uel in iure cessum uel usucaptum. quod quidem ius utrum ad Italica tantum praedia an etiam ad prouincialia pertineat, dubitatur.
Inst. l. c.
§ 64. Ex diuerso agnatus furiosi curator rem furio|si alienare potest ex lege xii tabularum; item procurator—|—est; item creditor pignus ex | pactione, quamuis eius ea res non sit. sed hoc forsitan ideo uideatur fieri, quod uoluntate debitoris intellegitur pignus alienari, qui olim pactus est, ut liceret creditori pignus uendere, si pecunia non soluatur.
Inst. 2, 8, 1.
§ 65. Thus it appears that some modes of alienation are based on natural law, as tradition, and others on civil law, as mancipation, surrender before the magistrate, Edition: current; Page:  usucapion, for these are titles confined to citizens of Rome.
§ 66. Another title of natural reason, besides Tradition, is Occupation, whereby things previously the property of no one become the property of the first occupant, as the wild inhabitants of earth, air, and water, as soon as they are captured.
§ 67. For wild beasts, birds, and fishes, as soon as they are captured, become, by natural law, the property of the captor, but only continue such so long as they continue in his power; after breaking from his custody and recovering their natural liberty, they may become the property of the next occupant; for the ownership of the first captor is terminated. Their natural liberty is deemed to be recovered when they have escaped from his sight, or, though they continue in his sight, when they are difficult to recapture.
§ 68. In the case of those wild animals, however, which are in the habit of going away and returning, as pigeons, and bees, and deer, which habitually visit the forests and return, the rule has been handed down, that only the cessation of the intention of returning is the termination of ownership, and then the property in them is acquired by the next occupant; the intention of returning is held to be lost when the habit of returning is discontinued.
§ 69. Capture from an enemy is another title of property by natural law.
§ 70. Alluvion is another natural mode of acquisition. Alluvion is an addition of soil to land by a Edition: current; Page:  river, so gradual that at a particular moment the amount of accretion cannot be determined; or, to use the common expression, an addition made by alluvion is so gradual as to elude our sight.
§ 71. Accordingly a parcel of your land swept away by a river, and carried down to mine, continues your property.
§ 72. An island that rises in the middle of a river is the common property of the proprietors on both banks of the river; if it is not in the middle of the stream, it belongs to the proprietors of the nearer bank.
§ 73. Again, a building erected on my soil, though the builder has made it on his own account, belongs to me by natural law; for the ownership of a superstructure follows the ownership of the soil.
§ 74. The same occurs a fortiori when trees are planted on my land, provided they have struck root.
§ 75. Similarly, when corn is sown on my land.
§ 76. But if I bring an action to recover the land or the building, and refuse to compensate the other party for his outlay on the building or the plantation or the cornfield, he will defeat my action by the plea of fraud, at any rate if he was a bona fide possessor.
§ 77. On the same principle, the writing inscribed on my paper or parchment, even in letters of gold, becomes mine, for the property in the letters is accessory to the paper or parchment; but if I sue for the books or parchment without offering compensation for the writing, my action will be defeated by the plea of fraud.
§ 78. The canvas belonging to me, on which another man has painted, e. g. a portrait, is subject to a different rule, for the ownership of the canvas is held to be accessory to the painting: a difference which scarcely rests on a sufficient reason. By this rule, it is clear that if I am in possession, and you (the painter) claim the portrait without offering to pay the value of the canvas, I may defeat your claim by the plea of fraud. But if you are in possession, the effect is that I am entitled to an equitable action against you, but in this case unless I offer the price of the painting, you defeat me by the plea of fraud, at any rate if you are a bona fide possessor. It is certain, that, if either you or another purloined the canvas, I can bring an action of theft.
§ 79. On a change of species, also, we have recourse to natural law to determine the proprietor. Thus, if grapes, or olives, or sheaves of corn, belonging to me, are converted by another into wine, or oil, or (threshed out) corn, a question arises whether the property in the corn, wine, or oil, is in me, or in the author of the conversion; so too if my gold or silver is manufactured into a vessel, or a ship, chest, or chair is constructed from my timber, or my wool is made into clothing, or my wine and honey Edition: current; Page:  are made into mead, or my drugs into a plaster or eye-salve, it becomes a question whether the ownership of the new product is vested in me or in the manufacturer. According to some, the material or substance is the criterion; that is to say, the owner of the material is to be deemed the owner of the product; and this was the doctrine which commended itself to Sabinus and Cassius; according to others the ownership of the product is in the manufacturer, and this was the doctrine favoured by the opposite school; who further held that the owner of the substance or material could maintain an action of theft against the purloiner, and also an action for damages (condictio), because, though the property which is destroyed cannot be vindicated, this is no bar to a condictio or personal action for damages against the thief and against certain other possessors.
§ 62. It sometimes occurs that an owner has not a power of alienation, and that a person who is not owner has a power of alienation.
§ 63. The alienation of dower land by the husband, without the consent of the wife, is prohibited by the lex Julia, although the husband has become owner of the land by its mancipation to him as dower, or by its surrender to him before a magistrate, or by his usucapion of it. Whether this disability is confined to Italian soil, or extends to the provinces, authorities differ.
§ 64. Contrariwise, an agnate, as a lunatic’s curator, is empowered to aliene the lunatic’s property by the law of the Twelve Tables; Edition: current; Page:  and so is a procurator that of his principal (when invested by his principal with free power of administration: Inst. 2, 1, 43). Again, a pledgee, in pursuance of a pact authorizing him to sell, may aliene the pledge, though he is not owner of the thing; this, however, may be said to rest on the assent of the pledgor previously given in the agreement which empowered the pledgee to sell in default of payment.
§ 65. Tradition or transfer of possession, as we have seen, was a natural mode of transferring ownership in such non-mancipable things as were corporeal: in mancipable things it could only transfer bonitary ownership. The nature of this conveyance, which belongs to jus gentium, has been fully explained above, §§ 14 a-27, comm.
Fructus or produce of a thing, when they become distinct entities, belong to the owner of the principal thing, unless specially acquired from him by some one else. They may be so acquired by transfer, in which case one act of assent may suffice as the antecedent to many acts of prehension; for instance, in the gathering (perceptio) of fruits by a usufructuary. Here the taking them occurs from time to time; the will or intention of the owner of the principal thing was manifested once for all when he created the usufruct. But in the case of a hirer of land by mere contract (colonus) a special tradition of the fructus by the owner in each particular case of acquisition is required. Thus if the fructus are res nec mancipi, perception of them, with the consent of the owner, gives him ownership: if they are res mancipi, bona fide possession, which usucapio will ripen into ownership.
Mere severance (separatio) of fruits (fructus) from the soil or parent substance, without any act of appropriation (perceptio), gives to the bona fide possessor, according to Savigny, Besitz, 22 a, bona fide possession, which will be transformed into ownership by usucapion: according to Vangerow, § 326, it gives him immediate and plenary ownership. Windscheid, Pandekten, § 186, notes 11 and 12, takes an intermediate position. Cf. Inst. Just. 2, 1, 35.
If the true owner recovers his land or cattle by vindicatio, the judex will compel a bona fide possessor who is defendant to restore the unconsumed fruits (fructus extantes) but not to make compensation for the consumed fruits (fructus consumpti). The mala fide possessor, on the contrary, acquires no property in the consumed fruits, but is compelled either by the vindicatio by which the principal thing is recovered or by a separate personal action (condictio) to Edition: current; Page:  restore their value; he may likewise be compelled to restore the fructus extantes either by the principal vindicatio or by a separate vindicatio. He can be sued for the value of the fruits he has neglected to gather (fructus neglecti) only in the principal vindicatio: their non-existence prevents his being sued for them in a separate vindicatio; and the fact that he is not enriched by them prevents his being sued for them in a separate condictio, Savigny, System, § 267.
§§ 66-69. Occupation gives property in a thing which previously has no owner. Quod enim ante nullius est, id naturali ratione occupanti conceditur, Inst. 2, 1. 12. If a thing had already an owner, it is only after dereliction by him that it can be appropriated by occupation. Dereliction, or renunciation of ownership, requires both the intention to abandon it and an external action. Thus the casting overboard of articles in a tempest to lighten a ship is not dereliction, as there is no intention of abandoning the property in the event of salvage, Inst. 2, 1, 48. Nor does the mere intention of abandonment constitute dereliction of ownership without a throwing away or removal or some other external act; and herein dereliction of ownership differs from dereliction of possession, which does not require this second element. Differentia inter dominium et possessionem haec est, quod dominium nihilo minus ejus manet qui dominus esse non vult, possessio autem recedit ut quisque constituit nolle possidere, Dig. 41, 2, 17. ‘There is this difference between ownership and possession, that ownership continues after the will to own has ceased, whereas possession ceases with the cessation of the will to possess.’
§ 68. Among wild animals (ferae naturae) a distinction is to be drawn. In those of them that are half tamed (mansuefactae), among which are mentioned deer, peacocks, pigeons, bees, property is not limited by strict detention, as in other wild animals, but by animus revertendi. A migrating swarm (examen) of bees, accordingly, would only continue to belong to the owner of the hive as long as it continues in his sight and is easy to recapture, as it has no intention of returning. In tame animals, e. g. dogs or geese, the rights of the owner are not extinguished by their straying without an intention to return. Inst. 2, 1, 12-16.
§§ 76-79. The intimate conjunction of two things, so that they are no longer separable and restorable to their former condition, may produce a transmutation of ownership. A separable junction, as when two flocks of sheep are intermingled, or when a stone is set in a ring, or when two metals are soldered together (plumbatura), or when the grain of one man is mixed with that of another, apart from an agreement to share in common, produces no change of ownership. In one case, however, namely, when material has been used in building a house on another man’s land, although the property Edition: current; Page:  of the owner of the material continues, it is in a dormant state since he cannot, so long as it is fixed to the land, vindicate it, ‘quia superficies solo cedit,’ § 73. The Twelve Tables, however, allowed him the actio de tigno juncto to recover double the value.
An inseparable union sometimes produces co-ownership in the whole (communio), sometimes the exclusive ownership of one of the parties (accessio).
When two things belonging to different owners are mixed but neither produce a new species, nor the relation of principal and accessory, e. g. when two similar wines or metals are mixed; or when a new species is produced with the consent of both owners, as when mead is produced by mixing honey and wine, electrum by mixing gold and silver; then each owner loses his separate ownership of a part, and becomes joint owner of the whole. Inst. 2, 1, 27.
When a new species is produced by one owner without the consent of the other, then, according to the law as settled by Justinian, the exclusive ownership is vested in the producer, and the other can only obtain redress by actio in personam for the loss of his ownership.
Further, when the mixture establishes the relation of principal and accessory, that is, when one thing loses its independent existence and becomes a part of the other (accessio), then the ownership in the whole is vested in the owner of the dominant part, accessorium sequitur principale; cf. Dig. 6, 1, 23 Si quis rei suae alienam rem ita adjecerit, ut pars ejus fieret, veluti si quis statuae suae bracchium . . . adjecerit, dominum ejus totius rei effici . . . plerique recte dicunt. It will sometimes be a question which part is to be regarded as principal and which as accessory, and the solution does not depend on their comparative value. The Roman jurists themselves differ sometimes, as is shown in the text, in their application of the principle of accession, but the principle itself seems to be that the part which maintains its previous identity and gives the dominating character to the entire thing is principal, while the part which is merged in the other and so ceases to have an independent existence, is accessory, as e. g. trees of one person planted and taking root in the land of another, are thereby entirely incorporated in the land. So again, a fresco painted by one person on a wall belonging to another is evidently something accessory to the wall. The case of an independent picture is a subject of dispute in this relation. Gaius, § 78, appears to think that it ought to be governed by the analogy of a manuscript, where the property in the writing follows the property in the paper, § 77. It may be said, however, that the principle of accession does not properly apply to a picture or to a manuscript of literary value, since they are new creations, differing in character from the materials in which they Edition: current; Page:  are embodied. It was indeed finally settled by Justinian that the property in the picture belonged to the painter, though the latter would be bound, as in similar cases, to make good the loss suffered by the previous owner of the canvas. Inst. 2, 1, 34, cf. Sohm. § 64 n.
The remedy of the ex-proprietor of the accessory is utilis actio, § 78. This appears to be a real action (utilis in rem actio), which, as a real action implies that the plaintiff is owner, seems to mean a Fictitious action, 4 § 34, i. e. one whose formula feigns that the property was never divested by Accession. This may be what Gaius means by utilis actio.
§ 79. Specification or conversion by labour of something so as to constitute a new thing is a title which cannot without violence be brought under either Occupatio or Accessio. Here one person contributes only his labour, whereby he transforms the material or materials belonging to another into a new product (nova species). The Sabinians held that the product belonged (by Accessio?) to the owner of the material, the Proculians (by Occupatio?) to the producer of the specification or conversion. Justinian adopts an intermediate opinion, which Gaius mentions, Dig. 41, 1, 7, 7, cf. Inst. 2, 1, 25, that the product belongs to the producer, provided that it cannot be reduced to its original substance, while if it can be it belongs to the owner of that substance; e. g. a gold or silver vessel belongs to the owner of the gold or silver out of which it was made: and provided further that the change is a genuine fabrication or manufacture; for instance, the mere thrashing out of corn is not sufficient to change the ownership, and therefore the corn belongs to the owner of the sheaves, cf. § 79: and the mere dyeing of wool operates no transfer of ownership to the dyer, Dig. 41, 1, 26, 3.
In the subjoined synopsis of the various titles to ownership which have been considered the proper position of Specification is open to controversy, but it would seem that it should be regarded as a distinct and original mode of acquisition.
Acquisition is either Derivative, that is derived by Succession from some one else, or Original, arising independently of any one else.
Derivative acquisition depends on (1) the will of the previous owner (alienatio, testatio), (2) the disposition of a magistrate or judex (adjudication, addiction, execution), or (3) a direct disposition of law (intestate succession, caducity, forfeiture).
Original acquisition is either independent of Possession or depends on Possession.
Original acquisition independent of Possession is either the effect of Separation or of Conjunction.
Separation is a title to property in the case of Separatio Edition: current; Page:  fructuum, which confers property in the fruits on the owner of the principal thing, or on the bona fide possessor of it, or on the emphyteuta.
Conjunction is either the conjunction of equal with equal or the conjunction of accessory with principal.
The conjunction of equal with equal is seen in Confusio, which produces communio or co-proprietorship.
The conjunction of accessory with principal is either of immovable with immovable, instanced in Alluvio:
or of movable with immovable, instanced in Satio, Plantatio, Inaedificatio:
or of movable with movable, instanced in Scriptura, Pictura.
Original acquisition dependent on Possession is either further dependent on Time or is not dependent on Time.
Original acquisition dependent on Possession and further dependent on Time is seen in Usucapio and Praescriptio longi temporis, when this latter became an acquisitive and not simply an extinctive title.
Original acquisition dependent on Possession but independent of Time is seen in Occupatio, or taking possession of a res nullius, including Captio ferarum, Captio hostilis, Inventio derelicti, Inventio thesauri.
§§ 62-64. It is conjectured that by some accidental displacement these three paragraphs have been transposed, and that in their proper order they should follow § 61. There seems no good reason why they should be interposed between the titles of civil law and the titles of natural law.
The lex Julia, relating only to Italian soil, permitted the husband to aliene the dotal land, with the consent of the wife, but prohibited its hypothecation, even with her consent. Justinian extended the prohibition to provincial soil, and to alienation with the wife’s consent, Inst. 2, 8, pr.
In the time of the jurist Javolenus, who flourished under Trajan and Hadrian, and still probably in that of Gaius, the power of sale of a pledge, § 64, was what is known in later jurisprudence as accidentale negotii, requiring a special agreement, Dig. 47, 2, 73, where by an omission of the compilers the law is not brought up to date. But in later law, as early at least as the time of Ulpian it had become a necessary consequence of the transaction—essentiale negotii—so that a contrary agreement is inoperative, except that it imposes a necessity of three denunciations or demands of payment, Dig. 13, 7, 4.
§ 80. Nunc admonendi sumus neque feminam neque pupillum sine tutoris auctoritate rem mancipi alienare posse; nec mancipi uero feminam quidem posse, pupillum non posse.
Inst 2, 8, 2.
§ 81. Ideoque si quando mulier mutuam pecuniam alicui sine tutoris auctoritate dederit, quia facit eam accipientis, cum scilicet pecunia res nec mancipi sit, contrahit obligationem.
Inst. l. c.
§ 82. At si pupillus idem fecerit, | quia non facit accipientis s—, nullam | contrahit obligationem; unde pupillus uindicare quidem nummos suos potest, sicubi extent, id | est eos petere suos ex iure Quiritium esse—|— repetere potest s—|tere. unde de pupillo quidem quaeritur, an num—|—quos mutuos dedit, ab eo qui accepit, —|— actione eos persequi possit, quoniam—|—potest.
Inst l. c.
§ 83. At ex contrario | omnes res tam mancipi quam nec mancipi mulieribus et pupillis sine tutoris auctoritate solui possunt, quoniam meliorem condicionem suam facere eis etiam sine tutoris auctoritate concessum est.
§ 84. Itaque si debitor pecuniam pupillo soluat, facit quidem pecuniam pupilli, sed ipse non liberatur, quia nullam obligationem pupillus sine tutoris auctoritate dissoluere potest, quia nullius rei alienatio ei sine tutoris auctoritate concessa est; sed tamen si ex ea pecunia locupletior factus sit et adhuc petat, per exceptionem doli mali summoueri potest.
Inst. l. c.
§ 85. Mulieri uero etiam sine tutoris auctoritate recte solui potest; nam qui soluit, liberatur obligatione, quia res nec mancipi, ut proxime diximus, a se dimittere mulieres etiam sine tutoris auctoritate possunt. quamquam hoc ita est, si accipiat pecuniam; at si non accipiat, sed habere se dicat et per acceptilationem uelit debitorem sine tutoris auctoritate liberare, non potest.
Inst. l. c.
§ 80. We must next observe, that neither a woman nor a ward (pupillus) can aliene a mancipable thing without their guardian’s sanction: nor can a ward even aliene a non-mancipable thing without such sanction, though a woman can.
§ 81. Thus a woman lending money without the guardian’s sanction passes the property therein to the borrower, money being a non-mancipable thing, and so imposes a contractual obligation on the borrower.
§ 82. But a ward lending money without his guardian’s sanction does not pass the property, and so does not impose a contractual obligation on the borrower, he can therefore recover back the money, if it exists, by vindication, that is, by claiming it as quiritary owner; whereas a woman can only bring a personal action of debt. Whether a ward can maintain an action against the borrower in case the money has been spent by him, is a subject of controversy, for a ward can acquire a right of action against a person without the sanction of his guardian.
§ 83. On the contrary, both mancipable and non-mancipable things can be conveyed to women and to wards without their guardian’s sanction, because they do not require his sanction to better their position.
§ 84. Accordingly, a debtor who pays money to a ward passes the property therein to the ward, but is not discharged of his obligation, because a ward cannot release a debtor from any liability without his guardian’s sanction, as Edition: current; Page:  without such sanction he cannot part with any right: if, however, he is profiting by the money, and yet demands further payment, he may be barred by the plea of fraud.
§ 85. A woman may be lawfully paid without her guardian’s sanction, and the payer is discharged of liability, because, as we have just mentioned, a woman does not need her guardian’s sanction for the alienation of a non-mancipable thing, provided always that she receives actual payment: for if she is not actually paid, she cannot formally release her debtor by acceptilation (3 § 169) unless with her guardian’s sanction.
§ 80, cf. 1, §§ 142-154, comm., 189-193.
§§ 81, 82. For mutuum, see 3 § 90. If the money delivered by a ward could be traced it was recoverable from any one by real action (vindicatio): if it had been consumed in bona fides a personal action, condictio certi, would probably lie against the borrower to recover an equivalent sum: if it had been consumed in mala fides a personal action, ad exhibendum, would lie to recover an equivalent sum and damages, Inst. 2, 8, 2.
§ 85. The pupilage of women after attaining the age of twelve, i. e. the age of puberty, had become obsolete before the time of Justinian, and with it their incapacities of alienation.
§ 86. Adquiritur autem nobis non solum per nosmet ipsos, sed etiam per eos quos in potestate manu mancipioue habemus; item per eos seruos in quibus usumfructum habemus; item per homines liberos et seruos alienos quos bona fide possidemus. de quibus singulis diligenter despiciamus.
Inst. 2, 9 pr.
§ 87. Igitur 〈quod〉 liberi nostri quos in potestate habemus, item quod serui nostri mancipio accipiunt uel ex traditione nanciscuntur, siue quid stipulentur, uel ex aliqualibet causa adquirunt, id nobis adquiritur; ipse enim qui in potestate nostra est nihil suum habere potest. et ideo si heres institutus sit, nisi nostro iussu hereditatem adire non potest; et si iubentibus nobis adierit, hereditas nobis adquiritur proinde atque si nos ipsi heredes instituti essemus; et conuenienter scilicet legatum per eos nobis adquiritur.
Inst. 2, 9, 3.
§ 88. Dum tamen sciamus, si alterius in bonis sit seruus, alterius ex iure Quiritium, ex omnibus causis ei soli per eum adquiri cuius in bonis est.
§ 89. Non solum autem proprietas per eos quos in potestate habemus adquiritur nobis, sed etiam possessio; cuius enim rei possessionem adepti fuerint, id nos possidere uidemur; unde etiam per eos usucapio procedit.
Inst. l. c.
§ 90. Per eas uero personas quas in manu mancipioue habemus proprietas quidem adquiritur nobis ex omnibus causis, sicut per eos qui in potestate nostra sunt; an autem possessio adquiratur, quaeri solet, quia ipsas non possidemus.
§ 91. De his autem seruis in quibus tantum usumfructum habemus ita placuit, ut quidquid ex re nostra uel ex operis suis adquirant, id nobis adquiratur; quod uero extra eas causas, id ad dominum proprietatis pertineat. itaque si iste seruus heres institutus sit legatumue quod ei datum fuerit, non mihi sed domino proprietatis adquiritur.
Inst. 2, 9, 4.
§ 92. Idem placet de eo qui a nobis bona fide possidetur, siue liber sit siue alienus seruus. quod enim placuit de usufructuario, idem probatur etiam de bonae fidei possessore. itaque quod extra duas istas causas adquiritur, id uel ad ipsum pertinet, si liber est, uel ad dominum, si seruus est.
Inst. l c.
§ 93. Sed bonae fidei possessor cum usuceperit seruum, quia eo modo dominus fit, ex omni causa per eum sibi adquirere potest. usufructuarius uero usucapere non potest: primum quia non possidet, sed habet ius utendi [et] fruendi; deinde quia scit alienum seruum esse.
Inst. l. c.
§ 94. De illo quaeritur, an per eum seruum in quo usumfructum habemus possidere aliquam rem et usucapere possimus, quia ipsum non possidemus. per eum uero quem bona fide possidemus sine dubio et possidere et usucapere possumus. loquimur autem in utriusque persona secundum definitionem quam proxime exposuimus, id est si quid ex re nostra uel ex operis suis adquirant [id nobis adquiritur].
Inst. l. c.
§ 95. Ex his apparet per liberos homines quos neque iuri nostro subiectos habemus neque bona fide possidemus, item per alienos seruos, in quibus neque usumfructum habemus neque iustam possessionem, nulla ex causa nobis adquiri posse. et hoc est quod uulgo dicitur per extraneam personam nobis adquiri non posse. tantum de possessione quaeritur, an 〈per extraneam〉 personam nobis adquiratur.
Inst. 2, 9, 5.
§ 96. In summa sciendum est his qui in potestate manu mancipioue sunt nihil in iure cedi posse; cum enim istarum personarum nihil suum esse possit, conueniens est scilicet, ut nihil suum esse in iure uindicare possint.
§ 86. We may acquire property not only by our own acts but also by the acts of persons in our power, hand, or mancipium; further, by slaves in whom we have a usufruct; further, by freemen or another’s slave of whom we are bona fide possessors: let us now examine these cases in detail.
§ 87. The rights of property which children under power or slaves acquire by mancipation or tradition, or claims they acquire Edition: current; Page:  by stipulation, or by any other title, are acquired for their superior; for a person subject to power is incapable of holding property, accordingly if instituted heir he must have the command of his superior to be capable of accepting the inheritance, and if he has the command of the superior and accepts the inheritance, it is acquired for the superior just as if the latter had himself been instituted heir: and the rule that it is the superior who acquires applies equally in the case of a legacy.
§ 88. But it is to be noticed that when one man is bonitary owner of a slave and another quiritary owner, whatever the mode of acquisition, it enures exclusively to the bonitary owner.
§ 89. Not only ownership is acquired for the superior but also possession, for the possession of the inferior is deemed to be the possession of the superior, and thus the former is to the latter an instrument of acquiring by usucapion.
§ 90. Persons in the hand or mancipation of a superior acquire ownership for him by all modes of acquisition just as children or slaves in his power; whether they acquire possession for him is a controversy, as they are not themselves in his possession.
§ 91. 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 labour is acquired for the usufructuary; but what they acquire by any other means belongs to their proprietor. Accordingly, if such a slave is instituted heir or made legatee, the inheritance or Edition: current; Page:  legacy is acquired, not for the usufructuary, but for the owner.
§ 92. The possessor in good faith of a freeman or a slave belonging to another is held to have the same rights as a usufructuary; what they acquire on any other account than the two we mentioned, belonging in the one case to the freeman himself in the other to the rightful owner.
§ 93. But after a possessor in good faith has acquired the ownership of a slave by usucapion, since he has thus become owner of him, all acquisitions by the slave enure to his benefit. A usufructuary cannot acquire a slave by usucapion, for, in the first place, he has not possession, but only a right of usufruct; and in the second place, he knows that the slave belongs to some one else.
§ 94. It is a question whether a slave can be an instrument of possession and usucapion for a usufructuary, the slave not being himself in his possession. A slave, undoubtedly, can be the instrument of possession and usucapion for a bona fide possessor. Both cases are subject to the limitation made above as to things acquired by the slave by means of the usufructuary’s property or by his own labour.
§ 95. It appears that freemen not subject to my power nor in my bona fide possession, and slaves of other people of whom I am neither usufructuary nor lawful possessor, cannot under any circumstances be instruments of acquiring for me, and this is Edition: current; Page:  the import of the dictum that a stranger to the family cannot be an instrument in the acquisition of anything; only in respect of possession there is a controversy as to whether it cannot be acquired through a stranger.
§ 96. Finally, it is to be observed that persons under power, in hand, or in mancipium, cannot acquire by surrender before a magistrate, for, as nothing can belong to such persons, it follows that they cannot vindicate anything as their own before a magistrate.
§ 87. Manus and mancipium had ceased to exist before the time of Justinian, and patria potestas was much reduced. The gradual steps by which filiusfamilias acquired an independent proprietary position have been already described, 1 § 55, comm. The reduction of patria potestas, and the abolition of the dependent law of Agnation, may be almost regarded (so fundamental were these institutions in jus civile) as the abrogation of the jus civile, and the substitution in its stead of what the Romans called jus gentium.
§ 88. The power of acquiring by the acts of a slave and the power of manumission, so as to make a slave Latinus, accompany Bonitary, not Quiritary, ownership, where these are separated, 1 §§ 35, 54, 3 § 166.
§ 90. It is to be noticed, as Professor Muirhead points out in his note to this passage, that no reason is given for making a distinction between persons in manu mancipiove and filiifamilias and slaves in respect of the acquiring possession for their superior.
§ 94. Dig. 41, 2, 1, 8 Per eum, in quo usumfructum habemus, possidere possumus, sicut ex operis suis adquirere nobis solet, nec ad rem pertinet, quod ipsum non possidemus: nam nec filium.
§ 95. All Dispositions or modes of conferring either rights against one (jus in personam), or rights against the world (jus in rem), are divisible, as we have before mentioned, into two parcels; an essential portion, some mental or internal act, the Intention of the parties; and an evidentiary portion, the Execution of this intention, its incorporation in some overt act. Can these elements of title be contributed by different persons? Can the Intention of disposing, that is, of acquiring or aliening, reside in one, and can its Execution, its external manifestation, be delegated to a representative?
Originally, that is, under the ancient civil law, representation was Edition: current; Page:  only admitted when the representative was in an inferior status to the principal, was his slave, or subject to his potestas, manus, or mancipium, § 95. This limitation was found to be inconvenient, when, in the progress of Roman conquest, Roman citizens became proprietors in remote parts of the world; and Possession was allowed to be acquirable by the instrumentality of extranea persona, that is, of a person who stood in no relation of inferiority to the acquirer, which though a doubtful point in the time of Gaius, was finally settled by a constitution of the Emperor Severus. In a civil solemnity, like mancipation, a man could not be represented by an independent agent; but when the transfer of possession (traditio) became a mode and ultimately the universal mode of transferring dominion, it followed that Ownership (dominium), as well as Possession, could be acquired by the agency of libera persona, if the person making traditio of a thing to the agent was himself owner of it, Inst. 2, 5.
The acquisition of Obligations or personal rights by brokerage of an independent agent was less perfectly developed. In fact Roman law adhered throughout its history to the rule that an agent could only contract rights for himself and not for his principal, though means were taken to circumvent this restriction as far as possible. The process employed for this purpose was a duplication of the relation of agency (mandatum). A as principal (dominus) appointed B his agent (procurator). B then contracted with a third party in his own name, and, in order to transfer the benefit of his contract to A, he ceded to him his right of action, that is to say, B, as principal, in his turn made A his agent (procurator in rem suam), whereby A was able to sue in the name of B, and obtain judgement on his own account. Finally, the praetor allowed the principal to sue immediately, without an express mandate, if intention to assign was shown, by bringing a utilis actio, 3 § 163, comm.
§ 96. We might have expected that, as those subject to potestas can acquire for their superiors by Mancipatio, § 87, so they could also acquire by In jure cessio, especially as the same form of words—Hunc ego hominem ex jure Quiritium meum esse aio—was used in Mancipatio, 1 § 119, and in Vindicatio, 4 § 16. It seems, however, that in Mancipatio the formula could be changed to Hanc rem ex jure Quiritium Lucii Titii domini mei esse aio, 3 § 167; and that a similar modification was not admissible in in jure cessio. It follows that an inferior (filius, qui in mancipio est, or servus) could acquire for his superior rural servitudes, but not urban or personal servitudes, §§ 29, 30, these being only created by in jure cessio; not, that is to say, as res singulae: for as parts of a rerum universitas these and all other rights could be acquired for a superior by an inferior by making aditio of an hereditas with the sanction of the superior, § 188; and Edition: current; Page:  even as res singulae these rights could be acquired for a superior by an inferior by title of legatum; that is, if they are conferred by a testator on the inferior as legatarius, Vat. frag. 51.
As Hereditas includes Obligations (res incorporales), active and passive, as well as Dominium (res corporalis), the consideration of Obligation should, theoretically speaking, precede the consideration of Inheritance; in an elementary exposition like the present, however, no practical inconvenience is occasioned by postponing the consideration of Obligations, while we gain by exhausting the subject of jus in rem before proceeding to the examination of jus in personam.
We may remember that Hereditas, as well as Servitudes and Obligations, was included by the Romans under the term Res incorporales, § 14. The whole division of rights, however, into Res corporales and Res incorporales is unsatisfactory; for, as we have already noticed, it was only from confusion of thought that Dominium was held to be Res corporalis; for all Rights are, really, Res incorporales.
§ 97. Hactenus tantisper admonuisse sufficit quemadmodum singulae res nobis adquirantur. nam legatorum ius quo et ipso singulas res adquirimus opportunius alio loco referemus. uideamus itaque nunc quibus modis per uniuersitatem res nobis adquirantur.
Inst. 2, 9, 6.
§ 98. Si cui heredes facti sumus, siue cuius bonorum possessionem petierimus, siue cuius bona emerimus, siue quem adoptauerimus, siue quam in manum ut uxorem receperimus, eius res ad nos transeunt.
Inst. l. c.
§ 99. Ac prius de hereditatibus dispiciamus quarum duplex condicio est: nam uel ex testamento uel ab intestato ad nos pertinent.
Inst. l. c.
§ 100. Et prius est, ut de his dispiciamus quae nobis ex testamento obueniunt.
Inst. l. c.
§ 101. Testamentorum autem genera initio duo fuerunt: nam aut calatis comitiis testamentum faciebant, quae comitia bis in anno testamentis faciendis destinata erant, aut in procinctu, id est cum belli causa arma sumebant; procinctus est enim expeditus et armatus exercitus. alterum itaque in pace et in otio faciebant, alterum in proelium exituri.
Inst 2, 10, 1.
§ 102. Accessit deinde tertium genus testamenti quod per aes et libram agitur. qui neque calatis comitiis neque in procinctu testamentum fecerat, is si subita morte urguebatur, amico familiam suam, id est patrimonium suum, mancipio dabat, eumque rogabat quid cuique post mortem suam dari uellet. quod testamentum dicitur per aes et libram, scilicet quia per mancipationem peragitur.
Inst. l. c.
§ 103. Sed illa quidem duo genera testamentorum in desuetudinem abierunt; hoc uero solum quod per aes et libram fit in usu retentum est. sane nunc aliter ordinatur quam olim solebat. namque olim familiae emptor, id est qui a testatore familiam accipiebat mancipio, heredis locum optinebat, et ob id ei mandabat testator quid cuique post mortem suam dari uellet; nunc uero alius heres testamento instituitur, a quo etiam legata relinquuntur, alius dicis gratia propter ueteris iuris imitationem familiae emptor adhibetur.
Inst. l. c.
§ 104. Eaque res ita agitur: qui facit 〈testamentum〉, adhibitis, sicut in ceteris mancipationibus, v testibus ciuibus Romanis puberibus et libripende, postquam tabulas testamenti scripserit, mancipat alicui dicis gratia familiam suam; in qua re his uerbis familiae emptor utitur familia pecvniaqve tva endo mandatelam cvstodelamqve meam, qvo tv ivre testamentvm facere possis secvndvm legem pvblicam, hoc aere, et ut quidam adiciunt aeneaqve libra esto mihi empta; deinde aere percutit libram, idque aes dat testatori uelut pretii loco; deinde testator tabulas testamenti tenens ita dicit haec ita vt in his tabvlis cerisqve scripta svnt, ita do ita lego ita testor itaqve vos qviritfs testimonivm mihi perhibetote; et hoc dicitur nuncupatio: nuncupare est enim palam nominare, et sane quae testator specialiter in tabulis testamenti scripserit, ea uidetur generali sermone nominare atque confirmare.
§ 105. In testibus autem non debet is esse qui in potestate est aut familiae emptoris aut ipsius testatoris, quia propter ueteris iuris imitationem totum hoc negotium quod agitur testamenti ordinandi gratia creditur inter familiae emptorem agi et testatorem; quippe olim, ut proxime diximus, is qui familiam testatoris mancipioaccipiebat heredis loco erat; itaque reprobatum est in ea re domesticum testimonium.
Inst. 2, 10, 9.
§ 106. Unde et si is qui in potestate patris est familiae emptor adhibitus sit, pater eius testis esse non potest; ac ne is quidem qui in eadem potestate est, uelut frater eius. sed si filius familias ex castrensi peculio post missionem faciat testamentum, nec pater eius recte testis adhibetur nec is qui in potestate patris est.
§ 107. De libripende eadem quae et de testibus dicta esse intellegemus; nam et is testium numero est.
§ 108. Is uero qui in potestate heredis aut legatarii est, cuiusue heres ipse aut legatarius in potestate est, quique in eiusdem potestate est, adeo testis et libripens adhiberi potest, ut ipse quoque heres aut legatarius iure adhibeantur. sed tamen quod ad heredem pertinet quique in eius potestate est cuiusue is in potestate erit, minime hoc iure uti debemus.
§ 97. So much at present respecting the modes of acquiring single rights; for bequest by way of legacy, another title whereby single rights are acquired, will find a more suitable place in a later portion of our treatise. We proceed to the titles whereby an aggregate of rights is acquired.
§ 98. If we become civil heirs of anyone, or claim praetorian succession to his property, or purchase the estate of an insolvent, or adopt a person sui juris, or receive a wife into our hand, the whole property of those persons is transferred to us in an aggregate mass.
§ 99. Let us begin with inheritances, whose mode of devolution is twofold, according as a person dies testate or intestate.
§ 100. And we first treat of acquisition by will.
§ 101. Wills were originally of two kinds, being made either at the comitia calata, which were held twice a year for making wills, or in martial array, that is to say, in the field before the enemy, martial array denoting an army equipped and armed for battle. One kind, then, was used in time of peace and quiet, the other by persons about to go to battle.
§ 102. More recently, a third kind was introduced, effected by bronze and balance. A man who had not made his will, either in the comitia calata or in martial array, being in apprehension of approaching death, used to convey his estate by mancipation to a friend, whom he requested to distribute it to certain persons in a certain manner after his death. This mode of testamentary disposition is called the will by bronze and balance, because it is carried out by the process of mancipation.
§ 103. The first two modes have fallen into desuetude, and that by bronze and balance, which alone survives, has undergone a transformation. In former times the vendee of the estate, the alienee by mancipation from the testator, held the place of heir, and received the testator’s instructions respecting the disposition of his property after his death. At the present day, the person who is instituted heir, and who is charged with the bequests, is different from the person who, for form’s sake, and in imitation of the ancient law, represents the purchaser.
§ 104. The proceedings are as follows: The testator having summoned, Edition: current; Page:  moned, as is done in other mancipations, five witnesses, all Roman citizens of the age of puberty, and a holder of the balance, and having already reduced his will to writing, makes a pro-formâ mancipation of his estate to a certain vendee, who thereupon utters these words: ‘Thy family and thy money into my charge, ward, and custody I receive, and, in order to validate thy will conformably to the public enactment (the Twelve Tables), with this ingot, and’—as some continue—‘with this scale of bronze, unto me be it purchased.’ Then with the ingot he strikes the scale, and delivers the ingot to the testator, as by way of purchase-money. Thereupon the testator, holding the tablets of his will, says as follows: ‘This estate, as in these tablets and in this wax is written, I so grant, so bequeath, so declare; and do you, Quirites, so give me your attestation.’ These words are called the nuncupation, for nuncupation signifies public declaration, and by these general words the specific written dispositions of the testator are published and confirmed.
§ 105. For the part of witness, it is a disqualification to be in the power of the purchaser of the estate or of the testator, because, the old proceeding furnishing the model, the whole testamentary process is supposed to be a transaction between the purchaser and the testator; and in old times, as was just observed, the purchaser was in the place of the heir; wherefore the testimony of persons in the same family was rejected.
§ 106. Hence too, if the vendee is a filiusfamilias, neither his father nor any one in his father’s Edition: current; Page:  power, his brother, for instance, is competent to attest; on the other hand if a filiusfamilias, after his discharge from service, make a will of his military peculium, neither his father nor any one in his father’s power is qualified to be a witness.
§ 107. The same rules apply to the balance-holder, for the balance-holder is reckoned as a witness.
§ 108. Not only is a person who is in the power of the heir or legatee, or a person who has power over the heir or legatee, or a person in the same power as the heir or legatee, capable of being witness or balance-holder. but the heir or legatee himself can act in this character. However, it is advisable that as regards the heir, and those in his power. and the person in whose power he is, the testator should not avail himself of this right.
§§ 97, 98. On the death of a civis all his rights and obligations (except those of a purely personal character, such as ususfructus and liability for delict) were regarded as constituting a universitas juris or undivided succession (supra, p. 126) called hereditas. The hereditas, in fact, was the legal personality of the deceased, and so the successor to it, called heres, had exactly the same position in respect of the entire family property as the deceased paterfamilias. Hence he was personally liable to pay all the debts in full, as if he had himself contracted them, cf. Sohm, § 108.
In the corresponding passage of Justinian’s Institutes bonorum emptio and conventio in manum, being obsolete, are not mentioned.
§§ 101-103. A will is thus defined by Ulpian: Testamentum est mentis nostrae justa contestatio, in id sollemniter facta ut post mortem nostram valeat, 20, 1. Testamentary disposition was an interference with the rights of family succession under the law of intestacy, which at first seemed so great an innovation as to require the sanction of the gentes. Accordingly the will executed in the Comitia Calata, or convocation of the gentes, was really a private law (perhaps originally instituted as a modified form of adoption, when a man had no children to succeed to his property); and even the will in procinctu, when we remember the original identity at Edition: current; Page:  Rome of the civil and military organization, may be regarded as the legislative act of the curiae in military convocation. The essential characteristic of this will was the nomination of a heres. Hence so important became the institution of a heres to the validity of a will in Roman law, that a Roman testament might be simply defined as the institution of a heres.
The mancipatory will, or will by bronze and scale, probably began to supersede the older form, which was perhaps confined to patricians, when the Twelve Tables gave legal force to the nuncupative part of mancipation (Cum nexum faciet mancipiumque, uti lingua nuncupassit, ita jus esto, Festus. ‘In contract or conveyance by bronze and balance, the oral declaration shall have legal force’), and had expressly recognized in every paterfamilias, whether patrician or plebeian, a power of testamentary disposition (Uti legassit super [familia], pecunia, tutelave suae rei, ita jus esto. Ulpian, 11, 14).
The introduction of writing marks an era in mancipatory wills. Originally, the testator gave oral instructions to the familiae emptor, or purchaser of the family property, in the presence of the witnesses, as to the terms on which the property was to be held by him and distributed after the testator’s death. These oral instructions, forming the lex mancipii, or conditions of the conveyance, called nuncupatio, served as a means, under the clauses of the Twelve Tables above cited, of nominating a heres. Hence a special lex curiata for this purpose was no longer necessary, and the familiae emptor, instead of being a kind of trustee for carrying out the testator’s wishes, became a mere formality, used simply for the purpose of making the will mancipatory. Afterwards, for the sake of secrecy, the testator committed his intentions to writing, and the nuncupation became a mere form of publication, or general ratification of the directions contained in the tablets which the testator held in his hand, when he executed the mancipation.
§ 105. It is an intelligible rule, that a person interested in the validity of a will should be incompetent as a witness; and, when the familiae emptor was in the place of the heir, it was reasonable to disqualify for attestation any one united in interest to him. But when the mancipation was purely fictitious (imaginaria mancipatio, Ulpian, 20, 2; imaginaria venditio, Inst. 2, 10, 1), one sesterce being paid as the nominal price, and the imaginary vendee distinct from the heir, the continuance of this disqualification shows the tendency of the Romans to venerate rules after the principles on which they were founded had ceased to operate. In the meantime the heir, who was, strictly speaking, really interested, was competent to be a witness. Cicero, for instance, mentions that he and Clodius were both witnesses to a will in which they were appointed heirs, Pro Milone, 18, 48; but in the time of Gaius, as we see by the text, Edition: current; Page:  § 108, such attestation was at least questionable, and when Ulpian wrote it seems to have been inadmissible. The whole law on this subject was, however, deranged: totum jus conturbatum erat, Inst. 2, 10, 10: the transference of interest from the familiae emptor to the heres not being accompanied by a corresponding transference of testimonial disqualification from the relatives of the familiae emptor to the relatives of the heres. Justinian converted the advice of Gaius into a fixed rule of law, and disabled the heir and persons united to him by the bond of potestas from giving attestation, Inst. 2, 10, 10. Legatees retained their competency to attest.
§ 106. This statement of Gaius respecting a will of castrense peculium is inadvertently transferred to Justinian’s Institutes, 2, 10, 9, but is inconsistent with a dictum of Ulpian’s in the Digest: Per contrarium quaeri potest, an pater ejus, qui de castrensi peculio potest testari, adhiberi ab eo ad testamentum testis possit. Et Marcellus libro decimo Digestorum scribit posse: et frater ergo poterit, Dig. 28, 1, 20, 2. We have here, then, a case of Antinomy (contradictory laws) in Justinian’s legislation. Vangerow, § 444, solves the antinomy by supposing that Ulpian speaks of a will made during service; the Institutes, like Gaius, of a will made post missionem.
By English law, 1 Vict. c. 26, any devise or legacy to an attesting witness is void, and the evidence of the witness admissible, and no person is incompetent to attest on account of being appointed executor.
In another form of will deriving its validity from the authority of the praetor, the form of mancipation was dropped, and the only authentication required was the apposition of the seals of seven attesting witnesses. Under such a will, however, the successor could not take the legal estate or hereditas, but only possession of the goods or bonorum possessio, §§ 119, 120, 148.
Before the time of Justinian, a form of will had been established deriving its validity from three orders of legislation (jus tripertitum), the civil law, the praetorian edict, and the imperial constitutions. In accordance with the last, the witnesses were required to sign or subscribe their names; in accordance with the praetorian edict they were required to attach their seals (signacula); and in accordance with the civil law, their number was required to be seven (a number obtained by adding the libripens and familiae emptor to the five witnesses of the mancipation), and the whole formality of attestation and publication was required to be continuous (unitas actus), that is, to proceed from beginning to end without interruption or interposition of any other business as one act. Inst. 2, 10, 3.
Another form of will is mentioned by Justinian as perfectly valid at civil law, the Nuncupative will, consisting solely of an oral declaration in the presence of seven witnesses, Inst. 2, 10, 14. A Edition: current; Page:  modification of this produced one of the most solemn forms of testament. The nuncupation was made before the Praeses provinciae, or a judex; and thereupon a memorandum or protocol (insinuatio) of the testator’s dispositions was made at length in the public records (acta or gesta) of the proceedings of the governor or court. This was called a public testament. Cod. 6, 23, 19.
By English law, 1 Vict. c. 26, only two witnesses are required to a will, whether of real or personal estate. The will must be in writing, signed at the end by the testator, or by some other person in his presence and by his direction; and such signature must be made or acknowledged by the testator in the presence of the two witnesses, who must be present at the same time, and who must attest and subscribe the will in the presence of the testator.
§ 109. Sed haec diligens obseruatio in ordinandis testamentis militibus propter nimiam inperitiam constitutionibus principum remissa est. nam quamuis neque legitimum numerum testium adhibuerint neque uendiderint familiam neque nuncupauerint testamentum, recte nihilo minus testantur.
Inst. 2, 11 pr.
§ 110. Praeterea permissum est iis et peregrinos et Latinos instituere heredes uel iis legare, cum alioquin peregrini quidem ratione ciuili prohibeantur capere hereditatem legataque, Latini uero per legem Iuniam.
§ 111. Caelibes quoque qui lege Iulia hereditatem legataque capere uetantur; item orbi, id est qui liberos non habent, quos lex —|
(48 uersus in C perierunt)—|—prohibentur hi—|—
(6 uersus in C legi nequeunt)—| — eius more faciant—|—|xxx annorum—|—
(8 uersus in C legi nequeunt)—|— res — |—
(2 uersus in C legi nequeunt)—|—
§ 109. But from these strict rules in the execution of a will soldiers, in consideration of their extreme ignorance of law, have by imperial constitutions a dispensation. For neither the legal number of witnesses, nor the ceremony of mancipation or of nuncupation, is necessary to give force to their will.
§ 110. Moreover, they may make aliens and Latini (Juniani) their heirs or legatees, whereas under other wills an alien is disqualified from taking a succession or legacy by the civil law, and Latini by the lex Junia.
§ 111. Celibates also, whom the lex Julia disqualifies for taking successions or legacies, and childless persons whom the lex Papia prohibits from taking more than half a succession or legacy (see § 286), are exempt from these incapacities under the will of a soldier.
§ 109. The military will could only be executed during actual service, and in this period only when the soldier was in camp, not when he was at home or on leave of absence. A will made after the soldier’s discharge from service or during his absence from camp was governed by the same rules as the will of a civilian (paganus). A military will, executed without the ordinary formalities, only remained valid during a year after discharge from service. Inst. 2, 11, 3.
§ 112. —ex auctoritate diui Hadriani senatusconsultum factum est quo permissum est |—feminis etiam sine coemptione te|stamentum facere, si modo non minores essent annorum xii, scilicet ut quae tutela liberatae non essent, tutore auctore testari deberent.
§ 113. Videntur ergo melioris condicionis esse feminae quam masculi: nam masculus minor annorum xiiii testamentum facere non potest, etiamsi tutore auctore testamentum facere uelit, femina uero post xii annum testamenti faciendi ius nanciscitur.
§ 114. Igitur si quaeramus an ualeat testamentum, inprimis aduertere debemus an is qui id fecerit habuerit testamenti factionem; deinde si habuerit, requiremus an secundum iuris ciuilis regulam testatus sit, exceptis militibus, quibus propter nimiam inperitiam, ut diximus, quomodo uelint uel quomodo possint, permittitur testamentum facere.
§ 112. But a senatusconsult under the late emperor Hadrian, as already mentioned (1 § 115 a), made coemption unnecessary, and permitted women to make a will on attaining 12 years of age, only requiring their guardian’s sanction if they were still in a state of pupilage.
§ 113. Women, then, are in a better legal position than males, for a male under 14 years of age cannot make a will, even with his guardian’s sanction, but a female acquires testamentary capacity as soon as she is 12 years old.
§ 114. Accordingly, to determine the validity of a will, we must first ascertain whether the testator had testamentary capacity; next, if he had, whether he conformed to the requisitions of the civil law in its execution, with this reservation, that soldiers, on account of their extreme ignorance of law, as was mentioned, are allowed to make their wills in any way they like and in any way they can.
§ 112. On the lost leaf of the Veronese codex Gaius proceeded to mention the classes who were incompetent to make a will. Among these would be the filiusfamilias, who could only dispose of his peculium castrense. Cf. Inst. 2, 12; Ulp. 20, 10; Epit. 2, 2, 1.
§ 114. Testamenti factio is a term applied, (A) to the Testator, Testamenti factio activa; (B) to the object of his bounty, Testamenti Edition: current; Page:  factio passiva; (C) to the witnesses. Let us consider it in each of these applications.
(A) Testamenti factio activa sometimes comprehends all the conditions (physical included) of testamentary capacity, and then it excludes children below the age of puberty and lunatics: but the proper meaning of testamenti factio is the qualification by Status for mancipatio, and consequently for the mancipatory will: that is to say, it is equivalent to Commercium, and therefore is ascribed to all cives, all Latini, and all aliens who have received a grant of commercium.
To make a will, however, a testator must have not only personal capacity, but he must also have property to leave. This latter condition is necessarily wanting to the Filiusfamilias and to the Latinus Junianus: in their case, therefore, Testamenti factio does not mean capacity of being testator, but of playing some other part in the mancipatory will; i. e. of being heir, or legatee, or witness.
The testator’s capacity is required at two periods: at the time of making the will and at the time of the testator’s death. The strict civil law also required the continuance of capacity during the interval between these dates: but the praetor disregarded any intervening incapacity (capitis diminutio minima), and, notwithstanding such an event, gave the will efficacy by granting to the heir, not the civil hereditas (which was beyond his power), but juxta-tabular possession (bonorum possessio juxta or secundum tabulas), §§ 145-147, comm., Ulpian 23, 6. Dig. 37, 11, 1, 8 Exigit praetor ut is cujus bonorum possessio datur utroque tempore jus testamenti faciendi habuerit, et quum facit testamentum et cum moritur. . . . Sed si quis utroque tempore testamenti factionem habuerit, medio tempore non habuerit, bonorum possessio secundum tabulas peti poterit.
Two other cases of incapacity were cured by the principle of postliminy and the lex Cornelia testamentaria: if a testator suffered capitis diminutio maxima by falling into the hands of the enemy, when he returned from captivity his will reacquired validity by the operation of postliminy: if he never returned his will obtained validity by the fiction that he died a moment before his capture. Dig. 28, 3, 6, 12 Quatenus tamen diximus ab hostibus capti testamentum irritum fieri, adjiciendum est postliminio reversi vires suas recipere jure postliminii, aut si ibi decedat, lege Cornelia confirmari. Dig. 49, 15, 18 In omnibus partibus juris, is, qui reversus non est ab hostibus, quasi tunc decessisse videtur, cum captus est. Ulpian, 23, 5.
The physical conditions of testamentary incapacity (infancy, lunacy) are only critical at the date of making the will.
(B) The Honoratus or the recipient of the testator’s bounty, Edition: current; Page:  whether heres or legatarius, required testamenti factio passiva, which like testamenti factio activa meant Commercium or capacity of taking part in mancipatio. Accordingly both a filiusfamilias and a Latinus could be heres or legatee (for the limitation, however, of the capacity of Latinus Junianus by the lex Junia see below). This capacity must exist at three periods (tria tempora): the making of the will, the death of the testator, and the acquisition of the succession by the heres (aditio). The interval between the making of the will and the death of the testator was immaterial, Inst. 2, 19, 4, Dig. 28, 5, 60, 4. The interval between the death of the testator and the aditio of the heres was material, because on the first heres institutus becoming incapable the inheritance would be instantaneously delated (offered for acceptance) to the heres substitutus or to the heres ab intestato.
The looking to the capacity of Honoratus at the date of making the will as well as later, though apparently based on no motives of testamentary policy, but only due to the mancipatory form of the primitive will, which was ostensibly a mancipatio inter vivos, i. e. a disposition taking effect in the lifetime of the mancipator, was retained in Justinian’s legislation after wills had lost their mancipatory form.
In respect of Honoratus it is necessary to distinguish institutio from acquisitio (aditio); and testamenti factio passiva, competence for institution, from capacitas or jus capiundi, competence for acquisition. Testamenti factio passiva was required at the date of the making of the will; and in its absence a disposition was deemed to be unwritten (pro non scripto habetur); and the property disposed of went by Accretio to the other heredes scripti. Capacitas, in its distinctive sense, was only required at the date of acquisition; and in its absence the unacquired property became caducous, and devolved in part or in whole to persons fulfilling certain conditions or to the state, as determined by the laws of caducity.
Incapaces, or persons who, from want of capacity to take, forfeited part or the whole of the testator’s bounty, comprehended:
(1) Latini Juniani, who were made incapable by the lex Junia, 1 § 23, 2 §§ 110, 275. Cf. Ulpian, 17, 1.
(2) The unmarried (caelibes) were totally, and the married but childless (orbi) were made partially incapable by the lex Papia Poppaea.
(3) Husband or wife (vir et uxor), who by the same law could only take, as between one another if they had no children, one tenth of a heritage, and another tenth for every living child by a former marriage: further, another tenth for a common child that lived to the day of naming (nominum dies), or as Mommsen (Staatsr. Edition: current; Page:  3, 202) would read the MS. of Ulpian, after the ninth day (nono die), or two tenths for two such children, but not more. In addition to their tenth, the husband or wife who were childless might have the usufruct of a third part, and, if they had had children, the property in a third, Ulpian, 1, 15.
These disqualifications were not recognized in Justinian’s legislation: so that at that period the distinction between capacitas and testamenti factio passiva had lost much of its importance. We find, however, under Justinian the penalty of forfeiture (ereptio, ablatio) for Indignitas. Indigni were persons deemed on various grounds unworthy of the testator’s bounty. The devolution of the property intended for them followed different rules from those which governed other cases of Incapacity. See § 151, comm.
(C) Testamenti factio was further applied to designate the qualification of the witnesses to a will. This was only required to exist at one period, the date of the execution of the will.
§ 113. By English law, the age at which a person was competent to make a will was formerly the same as by Roman law, namely, 12 years for females, 14 years for males; but now, by 1 Vict. c. 26, no one is competent to make a will before attaining 21 years of age.
§ 115. Non tamen, ut iure ciuili ualeat testamentum, sufficit ea obseruatio quam supra exposuimus de familiae uenditione et de testibus et de nuncupationibus.
§ 116. 〈Sed〉 ante omnia requirendum est, an institutio heredis sollemni more facta sit; nam aliter facta institutione nihil proficit familiam testatoris ita uenire testesque ita adhibere et ita nuncupare testamentum, ut supra diximus.
§ 117. Sollemnis autem institutio haec est titivs heres esto; sed et illa iam conprobata uidetur titivm heredem esse ivbeo; at illa non est conprobata titivm heredem esse volo; sed et illae a plerisque inprobatae sunt titivm heredem institvo, item heredem facio.
§ 118. Obseruandum praeterea est, ut si mulier quae in tutela est faciat testamentum, tutore auctore facere debeat; alioquin inutiliter iure ciuili testabitur.
§ 119. Praetor tamen si septem signis testium signatum sit testamentum, scriptis heredibus secundum tabulas testamenti bonorum 〈possessionem〉 pollicetur: 〈et〉 si nemo sit ad quem ab intestato iure legitimo pertineat hereditas, uelut frater eodem patre natus aut patruus aut fratris filius, ita poterunt scripti heredes retinere hereditatem. nam idem iuris est et si alia ex causa testamentum non ualeat, uelut quod familia non uenierit aut nuncupationis uerba testator locutus non sit.
§ 120. Sed uideamus an etiamsi frater aut patruus extent, potiores scriptis heredibus habeantur. rescripto enim imperatoris Antonini significatur, eos qui secundum tabulas testamenti non iure factas bonorum possessionem petierint, posse aduersus eos quiabintestato uindicant hereditatem defendere se per exceptionem doli mali.
§ 121. Quod sane quidem ad masculorum testamenta pertinere certum est; item ad feminarum quae ideo non utiliter testatae sunt, quia uerbi gratia familiam non uendiderint aut nuncupationis uerba locutae non sint; an autem et ad ea testamenta feminarum quae sine tutoris auctoritate fecerint haec constitutio pertineat, uidebimus.
§ 122. Loquimur autem de his scilicet feminis quae non in legitima parentum aut patronorum tutela sunt, sed [de his] quae alterius generis tutores habent, qui etiam inuiti coguntur auctores fieri; alioquin parentem et patronum sine auctoritate eius facto testamento non summoueri palam est.
§ 115. The civil law, however, is not satisfied by our observing the requisitions hereinbefore explained respecting mancipation, attestation, and nuncupation.
§ 116. Above all things, we must observe whether the institution of an heir was in solemn form; for if the institution of an heir was not in the prescribed form, it is unavailing that the mancipation, attestation, nuncupation, were regular.
§ 117. The solemn form of institution is this: ‘Be Titius my heir.’ The following also seems now to be recognized: ‘I order that Titius be my heir.’ ‘I wish Titius to be my heir’ is not admitted; and most reject the following: ‘I institute Titius my heir,’ ‘I make Titius my heir.’
§ 118. It is also to be remembered that a woman who has a guardian must have her guardian’s sanction to make a will, otherwise her will is invalid at civil law.
§ 119. The praetor, however, if the will is attested by the seals of seven witnesses, promises to put the persons named in the will in juxta-tabular possession, and if there is no one to take the inheritance by statutory right under the rules of intestacy, a brother by the same father, for instance, a father’s brother, or a brother’s son, the persons named in the will are able to retain the inheritance; for the rule is the same as if the will is invalid from any other cause, as because the familia has not been sold or because the words of nuncupation have not been spoken.
§ 120. But are not the heirs named in the will preferred even to a brother and paternal uncle? since the rescript of the emperor Antoninus permits the person named in the will who has obtained juxta - tabular possession under an informal will to repel the claimants in intestacy by the plea of fraud.
§ 121. This certainly applies both to the wills of males and also to the wills of females which are informal for such faults as omission to sell the familia or to say the words of nuncupation: whether the constitution applies also to wills of females executed without their guardians’s sanction, is a question.
§ 122. We are not speaking of females who are the statutory wards of their parent or patron, but of those who are wards of the Edition: current; Page:  other sort of guardian, who are compellable to give their sanction; for a parent or patron can certainly not be displaced by a will he has not chosen to sanction.
§ 117. The necessity of using formal words in the institution of an heir was abolished by a constitution of Constantius and Constans, a. d. 339, Cod. 6, 23, 15.
As to the nomenclature employed in the following exposition of Roman testamentary law, it must be observed that as the Roman conception of Heres is not found in English law, so we have no legal term corresponding to it. In the language of English jurisprudence Heir denotes a successor to real estate, while Executor, the notion of which is derived to some extent from Roman law, denotes a successor appointed to succeed to personal property. Again Heir denotes a successor to real estate in case of intestacy. Devisee denotes a successor to real estate under a will.
The word Executor is not available as a translation of heres. The Executor of English law, unless also a legatee, holds a merely onerous office; whereas the heres of Roman law was always, if there was any residue, a beneficiary. The Roman heres, in fact, united the characters of the English Executor and residuary legatee: and the lex Falcidia provided that the residue should as against the claims of legatus always amount to a fourth of the testator’s property. Nor is the executor, like the heres, personally liable for the debts of the deceased beyond assets.
In translating the word Heres heir, which is convenient from its relation to the indispensable terms disinherit and disinheritance, an English reader must not be misled by false associations with Real Property law, but must understand that it is used to signify the Universal successor of Roman law, whether designated by will or by the rules of intestacy.
Bequest (which in English law is related to personality as devise to realty) has been used in connexion with legacies, i. e. with dispositions in favour of legatarius as opposed to heres; in favour, that is, of a person who takes a single thing or things belonging to the testator, not his familia, that is, the Universitas of his rights and obligations, or a fraction of this Universitas.
§§ 119, 120. The praetor only sustained a testament in spite of its civil invalidity when the grounds of civil invalidity were want of mere external formalities (mancipation, nuncupation), not against more serious defects, such as preterition of self-successor. He sustained it, however, against the preterition of suus postumus, if suus postumus died before the testator, Dig. 28, 3, 12.Edition: current; Page: 
The praetorian succession, or right of succession introduced by the praetor under the name of Bonorum possessio, sometimes as supplementary to, and sometimes in the place of, civilis hereditas, may be divided into testate succession and intestate succession. The latter branch (bonorum possessio intestati) was firmly established at an earlier period than the former (bonorum possessio secundum tabulas). The rescript mentioned by Gaius, § 120, which is attributed by some writers to Antoninus Pius and by others to Marcus Aurelius, as is the more probable view, may be regarded as having definitively established the validity of the praetorian testament, not simply when supplementary to, but also when in opposition to, jus civile; in other words, a praetorian will might make a person bonorum possessor cum re, although the inheritance was claimed by some one with a valid civil title.
In its origin Bonorum possessio was probably only the provisional or interimistic possession granted to one of the parties in a suit of Hereditatis petitio, cf. Sohm, § 110. This suit was a species of Real action (actio in rem), and in all Real actions it is necessary to determine which of the litigants shall have possession during the pendency of the litigation. In the earliest period, that of statute-process (legis actio), the interim possession was called vindiciae, and the praetor who assigned it to one of the parties was said vindicias dicere, 4 § 16. In making the grant of vindiciae he was probably governed by the same rule which afterwards prevailed when the question of interim possession was determined by application of the Interdicts Utrubi and Uti possidetis: that is to say he probably allowed the party in actual possession to continue in possession. But this rule was inapplicable to the case of Hereditatis petitio, for at the decease of the proprietor who leaves an inheritance not one of the claimants to succeed may be in actual possession. Here accordingly the grant was governed by different principles: if a will, prima facie valid, was propounded, possession was granted to the claimant under the will (bonorum possessio secundum tabulas): if no such will was propounded, possession was granted to the civil heirs, the self-successor (suus heres) being eventually allowed to claim bonorum possessio unde liberi, coming before the nearest agnates (legitimi). Then as supplementary to the civil law, persons who were not recognized as heredes, namely persons claiming under a praetorian will, till they were preferred by statute to agnates, § 120, and next cognates (bonorum possessio unde cognati), and the wife or husband, as such (bonorum possessio unde vir et uxor), were put in possession in default of other heirs: children (liberi), who by emancipation had lost the character of self-successors, were nevertheless admitted to possession in the first order in preference to agnates of the second order, just as if they had continued unemancipated Edition: current; Page:  (bonorum possessio unde liberi). The right of provisional possession of course corresponded to a presumptive right of definitive ownership.
Although a will was propounded, yet if a descendant of the testator, who would have been self-successor if he had not been emancipated, was therein pretermitted (praeteritus), i. e. not either instituted heir or disinherited, possession was granted to such pretermitted descendant (bonorum possessio contra tabulas). Contra-tabular possession did not make a will absolutely void as the passing over of suus heres might do: if the praeteritus was an emancipated son, although he obtained contra-tabular possession, he was bound, as we shall see, by some of the dispositions of the will; so that his succession was partly intestate, partly testate.
§ 122. In ancient Rome, females, even after attaining their majority, were subject to perpetual guardianship. In the time of Gaius, the only survival of such guardianship to which they continued really subject appears to have been that of ascendants and patrons, cf. 1 §§ 189-193; 2 §§ 85, 112. But before the time of Justinian even this had ceased.
§ 123. Item qui filium in potestate habet curare debet, ut eum uel heredem instituat uel nominatim exheredet; alioquin si eum silentio praeterierit, inutiliter testabitur, adeo quidem, ut nostri praeceptores existiment, etiamsi uiuo patre filius defunctus sit, neminem heredem ex eo testamento existere posse, quia scilicet statim ab initio non constiterit institutio. sed diuersae scholae auctores, siquidem filius mortis patris tempore uiuat, sane inpedimento eum esse scriptis heredibus et illum ab intestato heredem fieri confitentur; si uero ante mortem patris interceptus sit, posse ex testamento hereditatem adiri putant, nullo iam filio inpedimento; quia scilicet existimant 〈non〉 statim ab initio inutiliter fieri testamentum filio praeterito.
Inst. 2, 13 pr.
§ 124. Ceteras uero liberorum personas si praeterierit testator, ualet testamentum 〈sed〉 praeteritae istae personae scriptis heredibus in partem adcrescunt, si sui heredes sint in uirilem, si extranei, in dimidiam. id est si quis tres uerbi gratia filios heredes instituerit et filiam praeterierit, filia adcrescendo pro quarta parte fit heres, et ea ratione idem consequitur, quod ab intestato patre mortuo habitura esset; at si extraneos ille heredes instituerit et filiam praeterierit, filia adcrescendo ex dimidia parte fit heres. quae de filia diximus, eadem et de nepote deque omnibus liberorum personis seu masculini seu feminini sexus dicta intellegemus.
Inst. l. c
§ 125. Quid ergo est? licet eae secundum ea quae diximus scriptis heredibus dimidiam partem detrahant, tamen praetor eis contra tabulas bonorum possessionem promittit, qua ratione extranei heredes a tota hereditate repelluntur et efficiuntur sine re heredes.
§ 126. Et hoc iure utebamur, quasi nihil inter feminas et masculos interesset; sed nuper imperator Antoninus significauit rescripto suas non plus nancisci feminas per bonorum possessionem, quam quod iure adcrescendi consequerentur. quod in emancipatarum quoque persona obseruandum est, ut hae quoque, quod adcrescendi iure habiturae essent, si in potestate fuissent, id ipsum etiam per bonorum possessionem habeant.
§ 127. Sed siquidem filius a patre exheredetur, nominatim exheredari debet; alioquin non uidetur exheredari. nominatim autem exheredari uidetur, siue ita exheredetur titivs filivs mevs exheres esto, siue ita filivs mevs | exheres esto, non adiecto proprio nomine.
Inst. 2, 13, 1.
§ 128. Ceterae uero liberorum personae uel femini sexus uel masculini sa|tis inter ceteros exheredantur, id est his uerbis cete|ri omnes exheredes svnto, quae uerba — post in|stitutionem heredum adici solent. sed hoc ita— |.
Inst. l. c.
§ 129. Nam praetor omnes uirilis sexus liberorum personas, | id est nepotes quoque et pronepotes—|—|—|.
§ 130. Postumi quoque liberi uel heredes institui debent uel exheredari.
§ 131. Et in eo par omnium condicio est, quod 〈et〉 in filio postumo et in quolibet ex ceteris liberis siue feminini sexus siue masculini praeterito ualet quidem testamentum, sed postea agnatione postumi siue postumae rumpitur, et ea ratione totum infirmatur. ideoque si mulier ex qua postumus aut postuma sperabatur abortum fecerit, nihil inpedimento est scriptis heredibus ad hereditatem adeundam.
Inst. l. c.
§ 132. Sed feminini quidem sexus personae uel nominatim uel inter ceteros exheredari solent, dum tamen si inter ceteros exheredentur, aliquid eis legetur, ne uideantur per obliuionem praeteritae esse. masculini uero sexus personas placuit non aliter recte exheredari, quam si nominatim exheredentur, hoc scilicet modo qvicvmqve mihi filivs genitvs fverit ex|heres esto.
Inst. l. c.
§ 132 a —| potest u — |—
(4 uersus in C legi nequeunt)—|—agat—|n—|.
§ 133. Postumorum autem loco sunt et hi qui in sui heredis | locum succedendo quasi agnascendo fiunt parenti|bus sui heredes. ut ecce si filium et ex eo nepotem ne|ptemue in potestate habeam, quia filius gradu praecedit, | is solus iura sui heredis habet, quamuis nepos quo|que et neptis ex eo in eadem potestate sint; sed si filius meus me uiuo moriatur, aut qualibet ratione exeat de potestate mea, incipit nepos neptisue in eius locum succe|dere, et eo modo iura suorum heredum quasi agnatio|ne nanciscuntur.
Inst. 2, 13, 2.
§ 134. Ne ergo eo modo rumpatur mihi te|stamentum, sicut ipsum filium uel heredem instituere uel | exheredare debeo, ne non iure faciam testamentum, ita et ne|potem neptemue ex eo necesse est mihi uel heredem instituere uel exheredare, ne forte, me uiuo filio mortuo, succedendo in locum eius nepos neptisue quasi agnatione rumpat testamentum; idque lege Iunia Vellaea prouisum est, in qua simul exheredationis modus notatur, ut uirilis sexus 〈postumi〉 nominatim, feminini uel nominatim uel inter ceteros exheredentur, dum tamen iis qui inter ceteros exheredantur aliquid legetur.
Inst. l. c.
§ 135. Emancipatos liberos iure ciuili neque heredes instituere neque exheredare necesse est, quia non sunt sui heredes; sed praetor omnes tam feminini quam masculini sexus, si heredes non instituantur, exheredari iubet, uirilis sexus nominatim, feminini uel nominatim uel inter ceteros; quodsi neque heredes instituti fuerint neque ita ut supra diximus exheredati, praetor promittit eis contra tabulas bonorum possessionem.
Inst. 2, 13, 3.
§ 135 a. In potestate patris non sunt qui cum eo ciuitate Romana donati sunt nec in accipienda ciuitate Romana pater petiit, ut eos in potestate haberet, aut, si petiit, non inpetrauit, nam qui 〈in〉 potestatem patris ab imperatore rediguntur nihil diffe|runt a—.
§ 136. Adoptiui filii quamdiu manent in ado|ptione naturalium loco sunt; emancipati uero 〈a〉 patre adoptiuo neque iure ciuili neque quod ad edictum praetoris pertinet, inter liberos numerantur.
Inst. 2, 13, 4.
§ 137. Qua ratione accidit ut ex diuerso quod ad naturalem parentem pertinet, quamdiu quidem sint in adoptiua familia, extraneorum numero habeantur; si uero emancipati fuerint ab adoptiuo patre, tunc incipiant in ea causa esse qua futuri essent, si ab ipso naturali patre 〈emancipati〉 fuissent.
Inst. l. c.
§ 123. Moreover, a testator who has a son in his power must take care either to institute him heir or to disinherit him individually, for passing him over in silence invalidates the will. So much so, that according to the Sabinians, even if the son die in the lifetime of the father, no one can take as heir under the will on account of the original nullity of the institution. But the followers of the other school hold that although the son, if alive at the time of his father’s death, bars the heirs mentioned in the will and takes as self-successor by intestacy, yet, if the son die before the father, the heirs under the will may succeed, the son being no longer in their way, because according to this view the will was not void ab initio by his silent pretermission.
§ 124. By the pretermission of other self-successors a will is not avoided, but the omitted persons come in to share with the heirs named in the will, taking an aliquot part if the latter are self-successors, a moiety if they are strangers. Thus if a man has three sons and institutes them heirs, saying nothing of his daughter, the daughter comes in as co-heir and takes a fourth of the estate, being entitled to the portion which would have devolved on her by intestacy: but when the instituted heirs are strangers, the daughter, if passed over, comes in and takes a moiety. What has been said of the daughter applies to the son’s children, male and female.
§ 125. But though a female according to this statement of the law only deprives the heirs under the will of a moiety, the praetor promises to give her contra-tabular possession, so that, if strangers, they lose the whole, and become heirs without taking anything.
§ 126. And this was once the law, and there was no distinction between males and females; but the Emperor Antoninus has recently decided by rescript that female self-successors shall not take more by contra-tabular possession than they would by coming in as co-heirs at civil law, by right of accrual. And the same rule applies to emancipated daughters, that is, they obtain by contra-tabular possession the same shares as they would have obtained as co-heirs by right of accrual if they had not been emancipated.
§ 127. A son must be disinherited Edition: current; Page:  individually; otherwise the disherison is invalid. Individual disherison may be expressed in these terms: Be Titius my son disinherited: or in these: Be my son disinherited, without inserting his name.
§ 128. Other male and all female self-successors may be sufficiently disinherited inter ceteros thus: Be the remainder disinherited, which words usually follow the institution of the heir: this, however, is only the rule of the civil law.
§ 129. For the Praetor requires all male self-successors, sons, grandsons, greatgrandsons, to be disinherited individually, although he permits females to be disinherited in an aggregate (inter ceteros), and, failing such disherison, promises them the contra-tabular succession.
§ 130. Children born after the making of the will must either be instituted heirs or disinherited.
§ 131. And in this respect all stand in the same position, that if a son or any other child, male or female, born after the making of the will, be passed over in silence, the will is originally valid, but subsequently rescinded and totally avoided by the birth of the child; so that if the woman from whom a child was expected have an abortive delivery, there is nothing to prevent the heirs named in the will from taking the succession.
§ 132. Female self-successors born after the making of the will may be disinherited either individually or inter ceteros, with Edition: current; Page:  this proviso, that if they are disinherited inter ceteros, some legacy must be left them in order that they may not seem to have been pretermitted through forgetfulness. Male self-successors, sons and further lineal descendants, are held not to be duly disinherited unless they are disinherited individually, thus: Be any son that shall be born to me disinherited.
§ 133. With children born after the making of the will are classed children who by succeeding to the place of self-successors become subsequent self-successors like the afterborn. For instance, if a testator have a son, and by him a grandson or granddaughter under his power, the son being nearer in degree alone has the rights of self-successor, although the grandson and granddaughter are equally in the ancestor’s power. But if the son die in the lifetime of the testator, or by any other means pass out of the testator’s power, the grandson and granddaughter succeed to his place, and thus acquire the rights of self-successors to the testator just as if they were children born after the making of the will.
§ 134. To prevent this subsequent rupture of my will, just as a son must be either instituted heir or disinherited individually to make a will originally valid, so a grandson or granddaughter by a son must be either instituted heir or disinherited, lest if the son die in the testator’s lifetime the grandson and granddaughter should take his place and rupture the will in the same way as if they had been children born Edition: current; Page:  after the execution of the will. The lex Junia Vellaea allows this and directs them to be disinherited like children born after a will is executed, that is to say, males individually, females either individually or inter ceteros, provided that those who are disinherited inter ceteros receive some legacy.
§ 135. Emancipated children by civil law need neither be appointed heirs nor disinherited because they are not self-successors. But the Praetor requires all, females as well as males, unless appointed heirs, to be disinherited, males individually, females either individually or inter ceteros, and if they are neither appointed heirs nor disinherited as described, the Praetor promises to give them the contratabular possession.
§ 135 a. Children who are made Roman citizens along with their father are not subject to his power, if at the time he either omitted to petition for, or failed to obtain, a grant of patria potestas: for those who are subjected to the father’s power by the emperor differ in no respect from those under power from time of birth.
§ 136. Adoptive children, so long as they continue in the power of the adoptive father, have the rights of his natural children: but when emancipated by the adoptive father they neither at civil law nor in the Praetor’s edict are regarded as his children.
§ 137. And conversely in respect of their natural father as long as they continue in the adoptive family they are reckoned as strangers: but when emancipated by the adoptive father they have Edition: current; Page:  the same rights in their natural family as they would have had if emancipated by their natural father (that is, unless either instituted heirs or disinherited by him, they may claim the contratabular succession).
§ 123. The praeterition of suus heres, another circumstance which as well as testamenti factio affected the validity of a will, was at civil law critical both at the time of making the will and at the time of the testator’s death and in the interval: but in later times this defect of a will was healed by the praetor, who granted juxta-tabular possession if the defect only existed at the first and third period, Dig. 28, 3, 12 pr., so that practically the existence of a pretermitted suus heres at the time of the testator’s death was alone important.
The necessity of disinheriting a suus heres is grounded on the principle of primitive law, that the child is co-proprietor with the parent: hence, unless something occurs to divest the child of his property, he will simply become sole proprietor by survivorship on the death of his father. Dig. 28, 2, 11, ‘In self-succession we have a still more striking instance of an unbroken continuity of dominion, for there appears to be no vesting by it of new property by inheritance, but the heir is deemed to have been previously proprietor even during the lifetime of the father. Hence the names filiusfamilias and paterfamilias imply a similar kind of legal relation to the patrimony, though one is parent and the other child. Therefore the death of the parent occasions no acquisition of new property by inheritance, but only an increased freedom in the administration of already existing property. Hence, even in the absence of testamentary institution, a self-successor is proprietor: and it is no objection to this, that a parent has the power of disinheriting a self-successor, for he also had the power of putting him to death.’
The characteristic of the Roman will that it grounded a Universal succession (unlike the English will which may be a merely Partial definition of the succession), which is expressed in the maxim, Nemo pro parte testatus, pro parte intestatus decedere potest, had its historic origin, not probably in a perception of its manifold utility, but in the primitive form of the will—a proposal, perhaps in the form of an adoption, laid before the legislative assembly for its sanction, § 101. The assembly could no more judge of the justice of a proposed arrangement without having laid before it the whole plan of succession than it could judge of the fairness of a contract by inspection of a single paragraph. It could not therefore allow the testator merely to lay before it certain partial modifications of the Edition: current; Page:  intestate succession and leave the rest of his inheritance to follow the general rules of intestacy, without further informing the assembly of their operation. Nor were the testamentary powers, conferred by the Twelve Tables, on which the mancipatory will was founded, intended to be used so as to defeat the claims of sui heredes (Muirhead, Roman Law, § 32). These considerations involve the rules respecting the effect of Praeteritio. If the testator’s dispositions were valid in spite of Praeteritio, he would have it in his power to commit a fraud upon the assembly by suppressing some element that was material to enable them to form a judgement. Accordingly Praeteritio was made to defeat itself, in the case of the son by nullification (inutilitas), in the case of other issue by Accretio, § 124. However, although by the Civil law Praeterition avoided a will and was not cured by the death of Praeteritus before Testator, yet Praetorian law only regarded the date of Testator’s death, and, if no Praeteritus was then existent, counteracted the nullity of the will by Juxta-tabulation.
After the introduction of the mancipatory will the fraud against the legislature would cease to be a motive for the rule requiring the testator to define a Universal succession; but the rule was retained for the sake of continuity and in order to force the testator to have before his mind a clear and systematic view of his intentions by requiring their simultaneous expression in a single act. It secured the afterborn from oblivion and protected the son who was falsely supposed to be dead from the consequences of the testator’s error. At the latest period the use of Codicils permitted to a certain extent the partial and fragmentary disposition of a patrimony, but this was not extended to the principal point, the heredis institutio. Ihering, § 53.
§ 124. Justinian abolished this accretion and equalized the sexes, enacting that the pretermission of any suus heres or sua heres should absolutely vacate a will, and entitle to bonorum possessio contra tabulas, like the pretermission of the son, Cod. 6, 28, 4; Inst. 2, 13, 5.
§ 127. Justinian abolished this distinction and required that all sui heredes should be disinherited individually like the son, ibid.
§ 130. Afterborn children (postumi), that is, children born after the making of a will, are uncertain persons, and, by the general rule that uncertain persons cannot be instituted or disinherited (incerta persona heres institui non potest, Ulpian 22, 4), ought to be incapable of institution or disinheritance, and, therefore, if they are sui heredes, would necessarily invalidate a will, because every will is informal when there exists a suus heres who is neither instituted nor disinherited. If the suus heres was born in the lifetime of the testator, the revocation of the will would not be an irremediable evil, because the testator would still have it in his power to make another will, and accordingly in this case the civil law left the general rule to Edition: current; Page:  operate. But if the suus heres were born after the death of the testator, the evil would be irreparable, and the testator would die intestate. To prevent this, the civil law made an exception to the rule that an uncertain person cannot be instituted or disinherited, and permitted the institution or disinheritance of any suus heres who should be born after the death of the testator: and on the authority of the celebrated jurist Aquilius Gallus, the inventor of a form of acceptilation (3 § 170), this power was extended to the institution or disinheritance of any afterborn grandchild of the testator whose father should die in the interval between the making of the will and the death of the testator. Dig. 28, 2, 29 pr. Gallus sic posse institui postumos nepotes induxit: Si filius meus vivo me morietur, tunc si quis mihi ex eo nepos sive quae neptis post mortem meam in decem mensibus proximis, quibus filius meus moreretur, natus nata erit, heredes sunto. ‘Gallus Aquilius introduced the institution of afterborn grandchildren in the following manner: If my son die in my lifetime, then let any grandson or granddaughter by him who may be born after my death within ten months after the death of my son, be my successor.’ Such grandchildren are called Postumi Aquiliani.
In respect of the suus heres born after the making of the will but in the lifetime of the testator, the case which the civil law left to the operation of the general rule, it might certainly be sometimes possible to make a new will after his birth, but it might sometimes be impossible or highly inconvenient; and accordingly the lex Junia Vellaea, which was probably passed at the close of the reign of Augustus, in its first chapter permitted such sui heredes, being children of the testator, and also grandchildren of the testator born after their father’s death in the lifetime of their grandfather, to be instituted or disinherited. Such children and grandchildren were called Postumi Vellaeani primi capitis. In its second chapter it permitted the institution or disinheritance of another class of uncertain persons, viz. quasi-afterborn children (postumorum loco); grandchildren, for instance, who were born before the making of the will, but whose acquisition of the character of sui heredes by the decease of their father is subsequent to the making of the will.
Such grandchildren are called Postumi Vellaeani secundi capitis.
Besides the Postumi Aquiliani, the Postumi Vellaeani primi capitis and the Postumi Vellaeani secundi capitis, the jurist Salvius Julianus, who systematized the Edict, established the validity of the institution or disinheritance of a fourth class, intermediate between the Postumi Vellaeani of the first and second chapter: grandchildren, namely, who, like the Vellaeani of the first chapter, were born after the making of the grandfather’s will, but who, like those of the second chapter, were born before the death of their father. Such Edition: current; Page:  grandchildren are not sui heredes to their grandfather at their birth, but only by succession, that is by the subsequent death of their father, like those of the second chapter, Dig. 28, 2, 29, 15.
The following is a conspectus of the different kinds of Postumi sui, i. e. descendants who after the making of a will come into the immediate power of a testator, whether (A) children or (B) grandchildren: to remoter descendants analogous principles will apply.
(A) Children are either
(a) Veritably afterborn, that is to say born after their father has made his will, whether after their father’s decease, in which case the civil law treated them as certae personae, or in their father’s lifetime, in which case they form a subdivision of Velleiani primi capitis:
(b) Or quasi-afterborn (loco postumorum), i. e. quasi-sons or quasi-daughters by adrogatio, adoptio, legitimatio, in manum conventio.
(c) Another quasi-afterborn is the child who falls under the immediate power of his soldier father, that is, becomes his suus heres, in consequence of the death of his grandfather, in whose power he previously was, after his father had made a will of castrense peculium. Dig. 28, 2, 28, 1.
(B) Afterborn grandchildren who, as self-successors to their grandfather, require institution or disinheritance in his will fall into four classes, differentiated by the order of priority in which certain events occur, as hereunder indicated:
Will of grandfather: Death of father: Death of grandfather: Birth of grandchild.
Postumi Vellaeani Primi Capitis,
Will of grandfather: Death of father: Birth of grandchild: Death of grandfather.
Will of grandfather: Birth of grandchild: Death of father: Death of grandfather.
Postumi Vellaeani Secundi Capitis,
Birth of grandchild: Will of grandfather: Death of father: Death of grandfather.
The last two cases depend on the principle of successio. The grandchild is at birth in the power of his grandfather, but is not his suus heres, so long as there is an intervening ascendant—the father—in the same power. On the death of the intervening ascendant the grandchild is said to succeed to his place, and becomes by such succession suus heres to his grandfather.Edition: current; Page: 
The afterborn stranger, though incapable at civil law of being appointed heir (§ 242), was relieved by the praetor who gave him the juxta-tabular possession. Justinian gave him a civil title, Inst. 3, 9 pr.
§ 132. To the necessity of leaving some legacy to the disinherited afterborn sua heres (and not, as Blackstone suggests, to the querela inofficiosi) we may perhaps attribute the vulgar error in England of the necessity of leaving the heir one shilling in order to cut him off effectually. The querela inofficiosi testamenti was a process by which a will formally valid could be either totally or partly upset at the instance of certain near relations on the ground that the claims of natural affection had been disregarded by the testator. The querela inofficiosi was not barred by any legacy, however slight, being left to such relation, but only by giving him one fourth of his intestate portion (§ 152, comm.; Sohm, § 113. For the changes which Justinian made in the law on this subject see Inst. 2, 18, 1, 2; Novella, 18, 1, and 115). Thus even a legacy left to an afterborn sua heres would be unavailing to save the will from being inofficiosum, unless it amounted to one fourth of her share by descent. If no legacy at all were left her, the will would be informal and absolutely void as against her, unless she was disinherited; if less than a fourth of her share were left, the will would not be absolutely void but voidable, i. e. liable to be altogether or in part overthrown if she chose to impeach it as inofficiosum.
§ 135. The Praeteritio of a descendant who is suus heres to the testator or, but for emancipation, would be suus heres, entitles the descendant to bonorum possessio. If the praeteritus is filius suus heres, the will is absolutely void and contra-tabular possession is an intestate succession: but if the praeteritus is emancipatus, the effect of contra-tabular possession is to divide the inheritance between the praeteritus and other descendants who were instituted heirs, excluding both instituted strangers and disinherited sui heredes.
Contra-tabular possession might be claimed either by the praeteritus himself, or by any of the instituted sui heredes. For if an instituted heir took less by his institution than he would by this partial intestacy, it would be his interest to claim contra-tabular possession, commisso per alium edicto, ‘the edict having been brought into operation by another,’ viz. by another descendant, who had been pretermitted.
The portions of the will that remained in force were:
(1) The exheredations: for such of the liberi as were duly disinherited continued, as was mentioned, excluded from the inheritance:Edition: current; Page: 
(2) The pupillary substitutions, the nature of which will hereafter (§ 179) be explained:
(3) Legacies given to certain conjunctae personae, e. g. legacies to ascendants or descendants of the testator, or a bequest to the wife of the dower which she had brought to her husband. If, instead of making the conjuncta persona a legatee, the testator had given his bounty in the form of a portion of the inheritance in which the conjuncta persona was instituted heir, such institution continued valid. The validity, however, of such legacies and institutions was by a constitution of Antoninus Pius, Dig. 37, 5, 7, and 8 pr. subjected to this limitation, that all the conjunctae personae together could not take more than a virilis portio, i. e. they were not entitled to more than fell to the lot of each contra-tabulant or claimant of contra-tabular possession; with this further proviso, that any conjuncta persona who is instituted heir of the inheritance in a portion of the heritage may retain as much thereof as he would have obtained by claiming contra-tabular possession, cf. Roby, vol. i, p. 250.
The partial intestacy produced by contra-tabular possession shows that the rule which we have already quoted, nemo pro parte testatus pro parte intestatus decedere potest, must be taken with some reservation. Although a testator cannot voluntarily dispose of only part of his heritage, such partial disposition may be introduced against the testator’s intention by the operation of law. The significance of the rule is principally this: that if a testator only names for a certain fraction of the inheritance, or if the fraction in which one of several heirs is instituted lapses by his decease before the testator’s death, the portion which was undisposed of or lapsed does not devolve, as it would in English law, to the heirs-at-law or persons entitled by intestacy, but goes by accrual (aceretio) to those to whom the remainder of the inheritance is left.
§ 138. Si quis post factum testamentum adoptauerit sibi filium aut per populum eum qui sui iuris est, aut per praetorem eum qui in potestate parentis fuerit, omni modo testamentum eius rumpitur quasi agnatione sui heredis.
Inst. 2, 17, 1.
§ 139. Idem iuris est si cui post factum testamentum uxor in manum conueniat, uel quae in manu fuit nubat; nam eo modo filiae loco esse incipit et quasi sua.
§ 140. Nec prodest siue haec siue ille qui adoptatus est in eo testamento sit institutus institutaue; nam de exheredatione eius superuacuum uidetur quaerere, cum testamenti faciendi tempore suorum heredum numero non fuerit.
§ 141. Filius quoque qui ex prima secundaue mancipatione manumittitur, quia reuertitur in potestatem patriam, rumpit ante factum testamentum; nec prodest, 〈si〉 in eo testamento heres institutus uel exheredatus fuerit.
§ 142. Simile ius olim fuit in eius persona cuius nomine ex senatusconsulto erroris causa probatur, quia forte ex peregrina uel Latina quae per errorem quasi ciuis Romana uxor ducta esset natus esset; nam siue heres institutus esset a parente siue exheredatus, siue uiuo patre causa probata siue post mortem eius, omni modo quasi agnatione rumpebat testamentum.
§ 143. Nunc uero ex nouo senatusconsulto quod auctore diuo Hadriano factum est, siquidem uiuo patre causa probatur, aeque ut olim omni modo rumpit testamentum; si uero post mortem patris, praeteritus quidem rumpit testamentum, si uero heres in eo scriptus est uel exheredatus, non rumpit testamentum; ne scilicet diligenter facta testamenta rescinderentur eo tempore quo renouari non possent.
§ 144. Posteriore quoque testamento quod iure factum est superius rumpitur. nec interest an extiterit aliquis ex eo heres, an non extiterit; hoc enim solum spectatur, an existere potuerit. ideoque si quis ex posteriore testamento quod iure factum est aut noluerit heres esse, aut uiuo testatore aut post mortem eius antequam hereditatem adiret decesserit, aut per cretionem exclusus fuerit, aut condicione sub qua heres institutus est defectus sit, aut propter caelibatum ex lege Iulia summotus fuerit ab hereditate: quibus casibus pater familias intestatus moritur, nam et prius testamentum non ualet ruptum a posteriore, et posterius aeque nullas uires habet, cum ex eo nemo heres extiterit.
Inst. 2, 17, 2.
§ 145. Alio quoque modo testamenta iure facta infirmantur, ueluti 〈cum〉 is qui fecerit testamentum capite deminutus sit; quod quibus modis accidat, primo commentario relatum est.
Inst. 2, 17, 4.
§ 146. Hoc autem casu inrita fieri testamenta dicemus, cum alioquin et quae rumpuntur inrita fiant, 〈et quae statim ab initio non iure fiunt inrita sint; sed et ea quae iure facta sunt et postea propter capitis deminutionem inrita fiunt〉 possunt nihilo minus rupta dici. sed quia sane commodius erat singulas causas singulis appellationibus distingui, ideo quaedam non iure fieri dicuntur, quaedam iure facta rumpi uel inrita fieri.
Inst. 2, 17, 5.
§ 138. If after making his will a man adopts as son either a person sui juris by means of the people (in comitia) or one subject to the power of an ascendant by means of the Praetor, his will is inevitably revoked as it would be by the subsequent birth of a self-successor.
§ 139. The same happens if after making his will the testator receives a wife into his hand, or marries a person who is in his Edition: current; Page:  hand, as she thereby acquires the status of a daughter and becomes his self-successor.
§ 140. Nor does it avail to prevent the rupture that such a wife or adopted son was in that will instituted heir, for as to disinheriting them, not having been self-successors when the will was made, the question could not then have been material.
§ 141. So a son manumitted after the first or second sale reverts into the power of his father and revokes a previous will, nor does it avail that he is therein appointed heir or disinherited.
§ 142. The same rule formerly held of the son in whose behalf the decree of the senate allows proof of error, if he was born of an alien or Latin mother who was married in the mistaken belief that she was a Roman: for whether he was appointed heir by his father or disinherited, and whether the error was proved in his father’s life or after his death, in every case the will was revoked as by the subsequent birth of a self-successor.
§ 143. Now, however, by a recent decree of the senate, made on the proposition of the late emperor Hadrian, if the father is alive when the error is proved, the old rule obtains and the will is in every case avoided; but when the error is proved after the father’s death, if the son was passed over in silence, the will is revoked; but if he was appointed heir or disinherited the will is not revoked; in order that carefully executed wills should not be rescinded at a period when reexecution is impossible.
§ 144. A subsequent will duly Edition: current; Page:  executed is a revocation of a prior will, and it makes no difference whether an heir ever actually takes under it or no; the only question is, whether one might. Accordingly, whether the heir instituted in a subsequent will duly executed declines to be heir, or dies in the lifetime of the testator, or after his death before accepting the inheritance, or is excluded by expiration of the time allowed for deliberation, or by failure of the condition under which he was instituted, or by celibacy as the lex Julia provides; in all these cases the testator dies intestate, for the earlier will is revoked by the later one, and the later one is inoperative, since no one becomes heir under it.
§ 145. There is another event whereby 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.
§ 146. In this case the will may be said to be rescinded; for although both those wills that are revoked and those that are not from the first made in proper form may be said to be rescinded, and those that are made in proper form but subsequently annulled by loss of status may be said to be revoked, yet as it is convenient that different grounds of invalidity should have different names to distinguish them, we will say that some wills are not made in proper form, others made in proper form are either revoked or rescinded.
§ 138. A will may be void from the first because it is not duly Edition: current; Page:  made—testamentum nullum, injustum, non jure factum—or it may be avoided by some subsequent circumstance—testamentum ruptum §§ 138, 144, irritum § 146, destitutum—or it may be upset as being unduteous—inofficiosum. A will is destitutum, ‘cum ex eo nemo heres extiterit,’ § 144. A will may be revoked or ruptured by a subsequent will, but not by a codicil. The tearing up or destruction of a will does not revoke it, unless this is done by the testator ‘animo revocandi.’ See § 151, comm. The innovations of Justinian changed the effects of adoption. Under his enactment, if a child is adopted by an ascendant the old rules obtain; but a person adopted by a stranger only acquires rights in the adoptive family in case of the adopter’s intestacy, and therefore need not be instituted or disinherited by the adopter; he retains, however, his rights in his natural family, and therefore must be instituted or disinherited in the will of his natural parent. 1 §§ 97-107, comm.
§ 139. By English law the only circumstance by which a will is avoided (besides revocation, cancellation, execution of a later will) is the marriage of the testator, and this operates universally, irrespectively of the birth of children. Marriage without manus, which was usual in the time of Gaius, had no effect on a will.
§ 140. This was reversed before the time of Justinian, for we find in Dig. 28, 3, 18 that the institution of the future adoptive son saves a will from being ruptured by adoption. Indeed, considering that the object of the lex Vellaea was to save wills from rupture, we may be surprised that the extension of its provisions from the natural postumi to the artificial postumi or quasi postumi had not been established in the days of Gaius.
§ 141. Cf. 1 §§ 132-136.
§ 142. As to erroris causae probatio see 1 § 67.
§ 147. Non tamen per omnia inutilia sunt ea testamenta quae uel ab initio non iure facta sunt uel iure facta postea inrita facta aut rupta sunt. nam si septem testium signis signata sint testamenta, potest scriptus heres secundum tabulas bonorum possessionem petere, si modo defunctus testator et ciuis Romanus et suae potestatis mortis tempore fuerit. nam si ideo inritum factum sit testamentum, quod puta ciuitatem uel etiam libertatem testator amisit, aut is in adoptionem se dedit 〈et〉 mortis tempore in adoptiui patris potestate fuit, non potest scriptus heres secundum tabulas bonorum possessionem petere.
Inst. 2, 17, 4.
§ 148. 〈Itaque qui〉 secundum tabulas testamenti quae aut statim ab initio non iure factae sint, aut iure factae postea ruptae uel inritae erunt, bonorum possessionem accipiunt, si modo possunt hereditatem optinere, habebunt bonorum possessionem cum re; si uero ab iis auocari hereditas potest, habebunt bonorum possessionem sine re.
§ 149. Nam si quis heres iure ciuili institutus sit uel ex primo uel ex posteriore testamento, uel ab intestato iure legitimo heres sit, is potest ab iis hereditatem auocare; si uero nemo sit alius iure ciuili heres, ipsi retinere hereditatem possunt, nec ullum ius aduersus eos habent cognati qui legitimo iure deficiuntur.
§ 149 a. Aliquando tamen, sicut supra | quoque notauimus, etiam legitimis heredibus | potiores scripti habentur, ueluti si ideo non iure | factum sit testamentum, quod familia non uenierit aut nun|cupationis uerba testator locutus non sit; —|— agnati petant hereditatem — | ex constitutione
§ 150. — | ueri—lege Iulia—| possessores—e|a lege bona caduca fiunt et ad populum deferri | iubentur, si defuncto nemo—.
§ 151. | Potest ut iure facta testamenta contraria uoluntate | infirmentur. apparet 〈autem〉 non posse ex eo solo infirma|ri testamentum, quod postea testator id noluerit ualere, usque adeo ut si linum eius inciderit, nihilo minus iure ciuili ualeat. quin etiam si deleuerit quoque aut conbusserit tabulas testamenti, nihilo minus 〈non〉 desinent ualere quae ibi fuerunt scripta, licet eorum probatio difficilis sit
§ 151 a. Quid ergo est? si quis ab intestato bonorum possessionem petierit et is | qui ex eo testamento heres est petat hereditatem,—|—|—perueniat hereditas; et hoc ita rescripto imperatoris Antonini significatur.
§ 147. Wills are not altogether inoperative either when originally informal or when though at first made in proper form they were subsequently rescinded or revoked; for if the seals of seven witnesses are attached, the testamentary heir is entitled to demand possession in accordance with the will, if the testator was a citizen of Rome and sui juris at the time of his death; but if the cause of nullity was, say, the testator’s loss of citizenship, or loss of liberty, or adoption and he dies subject Edition: current; Page:  to his adoptive father’s power, the heir instituted in the will is barred from demanding possession in accordance with the will.
§ 148. Persons granted possession in accordance with a will either originally not made in due form or originally made in due form and subsequently revoked or rescinded, have, if only they can maintain their right to the inheritance, effective possession of it (bonorum possessio cum re); but if they can be deprived of the property by an adverse claimant, the grant of possession to them is ineffective (bonorum possessio sine re).
§ 149. For an heir instituted according to jus civile either by an earlier or later will, or a statutory heir by intestacy, can evict the mere bonorum possessor according to the will from the inheritance; but in default of such claim on the part of a civil heir, such possessor according to the will can retain the inheritance, and cannot be deprived of it by cognates, these having no civil title.
§ 149 a. Sometimes, however, an heir with a civil title is postponed to an irregularly appointed heir; for instance, if the irregularity was only the absence of mancipation or nuncupatory publication, since if the agnates of the deceased claim the inheritance, they may be repelled by the plea of fraud, according to the constitution of the Emperor Antoninus.
§ 150. Possession according to the will is not defeated by the lex Julia, under which law a condition of caducity or devolution to the fiscus is the absence of every kind of heir, whether civil or praetorian.
§ 151. A validly executed will may be invalidated by a contrary expression of will: but a will is not, it is clear, invalidated by the mere intention of revocation. And consequently, in spite of the testator’s cutting the strings by which it is tied, it nevertheless, at civil law, continues valid: and his erasure or burning of the dispositions does not render them invalid, though it makes them difficult of proof.
§ 151 a. What then is the result? If a claimant demand bonorum possessio by intestacy. and a testamentary heir under such circumstances demand the civil inheritance under the will, the latter is repelled by the plea of fraud: and if no one should demand bonorum possessio by title of intestacy, the testamentary heir is superseded by the fiscus as unworthy of the succession in order to carry the testator’s intention of excluding him into effect: and this was enacted by a rescript of the Emperor (Marcus Aurelius) Antoninus.
§ 147. The validity of a testament implies, strictly speaking, the continuance of a testator’s intention, and therefore of his capacity of intention (testamenti factio), from its first declaration to the moment of his death. Accordingly an intermediate capitis diminutio avoided the will invalid (irritum) at civil law, § 146. The praetor, however, only looked at the first and last moments, and, if at these periods the testator had testamenti factio, sustained his intentions by granting possession according to the will, although he had undergone capitis diminutio minima in the intervening period.
So at civil law a will was revoked (ruptum) by after-birth (agnatio) of a self-successor, § 138; but if he died before the testator, the praetor sustained the will by granting possession according to the will to the heir instituted in it. Dig. 28, 3, 12 pr. Postumus praeteritus, vivo testatore natus, decessit: licet juris scrupulositate nimiaque subtilitate testamentum ruptum videatur, attamen si Edition: current; Page:  signatum fuerit testamentum, bonorum possessionem secundum tabulas accipere heres scriptus potest, remque obtinebit, ut et divus Hadrianus et Imperator noster rescripserunt. In order that possession in accordance with the will, granted when a will had been avoided (irritum) by intervening loss of capacity, might be efficacious (cum re), i. e. not defeasible by the claimant entitled at civil law by intestacy, it was necessary that the testator on reacquiring capacity should confirm his will by a codicil or other writing (codicillis aut aliis litteris), Dig. 37, 11, 11, 2.
§ 148. There was no ipso jure, or necessarius, bonorum possessor, corresponding to the heres necessarius, § 152, with whom delatio and adquisitio hereditatis were coincident: all bonorum possessores corresponded to the other class of heres, the heres extraneus or voluntarius, with whom adquisitio was distinct from delatio hereditatis, and required a voluntary act (aditio). That is to say, the person called (vocatus) by the praetorian edict to the succession forfeited his right to succeed unless he made his claim (agnitio, petitio, admissio bonorum possessionis) within a certain period, for ascendants and descendants a year, for others 100 dies utiles from the date of the vocatio (delatio). On the claim under the edict being made, the grant (datio) of bonorum possessio followed as a matter of course without any judicial investigation (causae cognitio). It was a mere formality, a certificate of the magistrate, the praetor or praeses provinciae, that the agnitio had been made within the allotted period, before the expiration of the term allowed for deliberation. If any real controversy arose, it was decided by one of two actions, hereditatis petitio, or the Interdict Quorum bonorum. If the claimant relied on his title at civil law, he sued by hereditatis petitio; if he relied on the title given him by the praetorian edict, he sued by the Interdict Quorum bonorum. See 4 § 144. If defeated in either of these proceedings, he gained nothing by having obtained the formal grant of praetorian succession—he had only bonorum possessio sine re.
§ 149 a. A praetorian title was, as a general rule, sine re, if a civil title was opposed to it, but the constitution of the Antonine emperor, probably Marcus Aurelius, mentioned here and in § 120, made an important inroad on this principle.
§ 150. Originally when a heritage was vacant from the failure of intestate successors, Ulpian 28, 7, or from the neglect of an heir to enter upon it, § 52, any stranger might take possession and acquire by usucapio, but this right was rendered ineffectual by Hadrian’s Senatusconsultum, § 57. The lex Julia de Maritandis ordinibus, which is the statute here referred to, was passed a. d. 4; for an account of its purport and of the meaning of the term caduca see § 190 and § 206, Edition: current; Page:  comm. Besides its rights to caduca under this statute the public treasury or that of the Emperor could claim all inheritances left without an heir (bona vacantia). The state did not become necessary successor (ipso jure) but had the delatio (ad populum deferri jubentur), i.e. had the right of deliberation and acceptance or repudiation, Inst. 3, 11, 1. As universal successor the state could recover from the unentitled occupant by Hereditatis petitio, Dig. 5, 3, 20, 7, and could transfer its rights to a purchaser, as if the transfer were made under the Sc. Trebellianum, l. c. 54 pr. (cf. § 253).
The treasury was bound to pay all codicillary legacies and trusts: and succeeded to all the obligations active and passive, in other words, to all the personal rights and personal duties, of the heritageleaver: but like other successors in later times, under the law of Justinian, might, by taking advantage of the Benefice of inventory, confine its liability to the extent of the assets, §§ 158-162, comm. In the event of the repudiation of the succession by the Fiscus, the goods were sold for the benefit of creditors. Vangerow, § 564.
Gaius probably here means, though the MS is defective, that although a grant of bonorum possessio might be rendered ineffective (sine re) in consequence of the superior claims of a person with a civil title by whom the possessor could be evicted, the fiscus had no title to an inheritance under the lex Julia, if the deceased, though without a civil successor, had left a bonorum possessor. (Cf. note on § 150 in Muirhead’s Gaius.)
§ 151. The Rupture (ruptio) of a will was produced by two circumstances: (1) Agnatio postumi, the subsequent birth of a selfsuccessor, or the coming into existence of a quasi postumus, § 139: and (2) Revocation, §§ 138-146, comm. On the principle, Nihil tam naturale est quam eo genere quidque dissolvere quo colligatum est (Dig. 50, 17, 35), the most formal and originally the only mode of revoking a will would be the execution of a subsequent will. Another mode of Revocation sanctioned by Justinian depended on two conditions: a declaration attested by three witnesses or made in the form of a record or protocol deposited in the archives of a court, and the expiration of ten years from the date of the execution of the will, Cod. 6, 23, 27.
The mere cancellation or obliteration of a will, with the intention of revoking it, was an informal Revocation and left the will valid at civil law: the will, however, was not allowed to hold good against this evidence of the testator’s change of intention. The rescript of Marcus Aurelius a. d. 166 to this effect, to which Gaius alludes § 151 a, is preserved in the Digest, 28, 4, 3.
Justinian ordained that a will should be perfectly revoked and completely avoided by the cutting of the cords, or removal of the Edition: current; Page:  seals. or other intentional destruction of the outward signs of its due solemnization, Cod. 6, 23, 30. English law, as laid down in 1 Vict. c. 26 § 20 and interpreted in the celebrated case of Lord St. Leonards, L. R. 1 P. D. 154, seems to be in conformity with Roman law on the subject of unintentional erasure or destruction of a will.
§ 151 a. Ereption for indignitas, an institution which survived in the legislation of Justinian, Dig. 34, 9, Cod. 6, 35, must be distinguished from the lapse of a testamentary disposition under the lex Julia (caducum), §§ 185-190, comm. In the latter case there was want of capacitas, as opposed to want of testamenti factio passiva, on the part of honoratus. In the case of the indignus there was not even incapacitas but only liability to deprivation. Some grounds of Ereption were common to the heir and legatee, others peculiar to the heir, others peculiar to the legatee. The forfeiture of the inheritance or legacy was sometimes in favour of the Fiscus, sometimes in favour of other persons, usually of those who would have taken but for the disposition in favour of indignus.
Instances of grounds for which either heir or legatee forfeited their interest to the Fiscus were: undertaking a secret unlawful trust, coercion of the testator in respect of his will, killing the testator or neglect to avenge his death, wrongful impeachment of his will for inofficiositas, &c.
Grounds for which their shares were forfeited to other persons than the Fiscus were: refusal of the office of guardian when the prospect of the discharge of this duty was the motive of the testator’s bounty, refusal to undertake the education of an infant child of the testator, neglect of the testator’s burial, &c.
Grounds on which the heir alone forfeited the whole or part of his inheritance to the Fiscus were: concealment of a portion of the hereditaments in order to defraud a legatee (whereupon the heir forfeited the fourth which he was entitled to retain from such legacy by the lex Falcidia), the discovery that though putative son he was not a genuine son of the testator, the deliberate cancellation of his name by the testator, the imperfect execution of a subsequent will in which he was excluded from the heritage, a codicillary declaration of his unworthiness to inherit, &c.
Grounds on which an heir forfeited his portion to persons other than the Fiscus were: neglect on the part of a mother to demand a guardian for her infant child, a second marriage by a mother who herself is guardian before she has caused another guardian to be substituted, neglect of a lunatic testator, neglect to ransom the testator, criminal prosecution of testator, &c.
Grounds exclusively affecting a legatee and that in favour of the heir are theft from the heritage and concealment of the testator’s will.
§ 152. Heredes autem aut necessarii dicuntur aut sui et necessarii aut extranei.
Inst. 2, 19 pr.
§ 153. Necessarius heres est seruus cum libertate heres institutus, ideo sic appellatus, quia siue uelit siue nolit, omni modo post mortem testatoris protinus liber et heres est.
Inst. 2, 19, 1.
§ 154. Vnde qui facultates suas suspectas habet, solet seruum suum primo aut secundo uel etiam ulteriore gradu liberum et heredem instituere, ut si creditoribus satis non fiat, potius huius heredis quam ipsius testatoris bona ueneant, id est ut ignominia quae accidit ex uenditione bonorum hunc potius heredem quam ipsum testatorem contingat; quam-quam apud Fufidium Sabino placeat eximendum eum esse ignominia, quia non suo uitio sed necessitate iuris bonorum uenditionem pateretur; sed alio iure utimur.
Inst. l. c.
§ 155. Pro hoc tamen incommodo illud ei commodum praestatur, ut ea, quae post mortem patroni sibi adquisierit, siue ante bonorum uenditionem siue postea, ipsi reseruentur; et quamuis pro portione bona uenierint, iterum ex hereditaria causa bona eius non uenient, nisi si quid ei ex hereditaria causa fuerit adquisitum, uelut si † Latinus adquisierit, locupletior factus sit; cum ceterorum hominum quorum bona uenierint pro portione, si quid postea adquirant, etiam saepius eorum bona uenire solent.
Inst. l. c.
§ 156. Sui autem et necessarii heredes sunt uelut filius filiaue, nepos neptisue ex filio, 〈et〉 deinceps ceteri qui modo in potestate morientis fuerunt. sed uti nepos neptisue suus heres sit, non sufficit eum in potestate aui mortis tempore fuisse, sed opus est ut pater quoque eius uiuo patre suo desierit suus heres esse aut morte interceptus aut qualibet ratione liberatus potestate; tum enim nepos neptisue in locum sui patris succedunt.
Inst. 2, 19, 2.
§ 157. Sed sui quidem heredes ideo appellantur, quia domestici heredes sunt et uiuo quoque parente quodammodo domini existimantur; unde etiam si quis intestatus mortuus sit, prima causa est in successione liberorum. necessarii uero ideo dicuntur, quia omni modo, 〈siue〉 uelint siue 〈nolint, tam〉 ab intestato quam ex testamento heredes fiunt. Inst. l. c.
§ 158. Sed his praetor permittit abstinere se ab hereditate, ut potius parentis bona ueneant.
Inst. l. c.
§ 159. Idem iuris est et 〈in〉 uxoris persona quae in manu est, quia filiae loco est, et in nuru quae in manu filii est, quia neptis loco est.
§ 160. Quin etiam similiter abstinendi potestatem facit praetor etiam ei qui in causa mancipii est, 〈si〉 cum libertate heres institutus sit, quamuis necessarius, non etiam suus heres sit, tamquam seruus.
§ 161. Ceteri qui testatoris iuri subiecti non sunt extranei heredes appellantur. itaque liberi quoque nostri qui in potestate nostra non sunt heredes a nobis instituti [sicut] extranei uidentur. qua de causa et qui a matre heredes instituuntur eodem numero sunt, quia feminae liberos in potestate non habent serui quoque qui cum libertate heredes instituti sunt et postea a domino manumissi, eodem numero habentur.
Inst. 2, 19. 3.
§ 162. Extraneis autem heredibus deliberandi potestas data est de adeunda hereditate uel non adeunda.
Inst. 2, 19, 5.
§ 163. Sed siue is cui abstinendi potestas est inmiscuerit se bonis hereditariis, siue is cui de adeunda 〈hereditate〉 deliberare licet, adierit, postea relinquendae hereditatis facultatem non habet, nisi si minor sit annorum xxv. nam huius aetatis hominibus, sicut in ceteris omnibus causis deceptis, ita etiam si temere damnosam hereditatem susceperint, praetor succurrit. scio quidem diuum Hadrianum etiam maiori xxv annorum ueniam dedisse, cum post aditam hereditatem grande aes alienum quod aditae hereditatis tempore latebat apparuisset.
Inst. l. c., and 6.
§ 164. Extraneis heredibus solet cretio dari, id est finis deliberandi, ut intra certum tempus uel adeant hereditatem, uel si non adeant, temporis fine summoueantur. ideo autem cretio appellata est, quia cernere est quasi decernere et constituere.
§ 165. Cum ergo ita scriptum sit heres titivs esto, adicere debemus cernitoqve in centvm diebvs proximis qvibvs scies poterisqve. qvodni ita creveris, exheres esto.
§ 166. Et qui ita heres institutus est, si uelit heres esse, debebit intra diem cretionis cernere, id est haec uerba dicere qvod me p. mevivs testamento svo heredem institvit, eam hereditatem adeo cernoqve. quodsi ita non creuerit, finito tempore cretionis excluditur; nec quicquam proficit, si pro herede gerat, id est si rebus hereditariis tamquam heres utatur.
Inst. 2, 19, 7.
§ 167. At is qui sine cretione heres institutus sit, aut qui ab intestato legitimo iure ad hereditatem uocatur, potest aut cernendo aut pro herede gerendo uel etiam nuda uoluntate suscipiendae hereditatis heres fieri; eique liberum est quocumque tempore uoluerit, adire hereditatem; 〈sed〉 solet praetor postulantibus hereditariis creditoribus tempus constituere, intra quod si uelit adeat hereditatem, si minus, ut liceat creditoribus bona defuncti uendere.
§ 168. Sicut autem 〈qui〉 cum cretione heres institutus est, nisi creuerit hereditatem, non fit heres, ita non aliter excluditur, quam si non creuerit intra id tempus quo cretio finita est; itaque licet ante diem cretionis constituerit hereditatem non adire, tamen paenitentia actus superante die cretionis cernendo heres esse potest.
§ 169. At is qui sine cretione heres institutus est, quiue ab intestato per legem uocatur, sicut uoluntate nuda heres fit, ita et contraria destinatione statim ab hereditate repellitur.
§ 170. Omnis autem cretio certo tempore constringitur. in quam rem tolerabile tempus uisum est centum dierum. potest tamen nihilo minus iure ciuili aut longius aut breuius tempus dari; longius tamen interdum praetor coartat.
§ 171. Et quamuis omnis cretio certis diebus constringatur, tamen alia cretio uulgaris uocatur, alia certorum dierum: uulgaris illa, quam supra exposuimus, id est in qua adiciuntur haec uerba qvibvs sciet poteritqve; certorum dierum, in qua detractis his uerbis cetera scribuntur.
§ 172. Quarum cretionum magna differentia est. nam uulgari cretione data nulli dies conputantur, nisi quibus scierit quisque se heredem esse institutum et possit cernere. certorum uero dierum cretione data etiam nescienti se heredem institutum esse numerantur dies continui; item ei quoque qui aliqua ex causa cernere prohibetur, et eo amplius ei qui sub condicione heres institutus est, tempus numeratur; unde melius et aptius est uulgari cretione uti.
§ 173. Continua haec cretio uocatur, quia continui dies numerantur. sed quia [tamen] dura est haec cretio, altera in usu habetur; unde etiam uulgaris dicta est.
§ 152. Heirs are either necessary successors or necessary self-successors or external successors.
§ 153. A necessary successor is a slave instituted heir with freedom annexed, so called because, willing or unwilling, without any alternative, on the death of the testator he immediately has his freedom and the succession.
§ 154. For when a man’s affairs are embarrassed, it is common for his slave, either in the first place (institutio) or as a substitute in the second or any inferior place (substitutio), to be enfranchised and appointed heir, so that, if the creditors are not paid in full, the property may be sold rather as belonging to this heir than to the testator, the ignominy of insolvency thus attaching to the heir instead of to the testator; though, as Fufidius relates, Sabinus held that he ought to be exempted from ignominy, as it is not his own fault, but legal compulsion, that makes him insolvent; this, however, is not in our view the law.
§ 155. To compensate this disadvantage he has the advantage that his acquisitions after the death of his patron, and whether before or after the sale, are kept apart for his own benefit, and although a portion only of the debts is satisfied by the sale, he is not liable to a second sale of his after-acquired property for the debts of the testator, unless he gain anything in his capacity as heir, as if he inherit the property of a Latinus Junianus [another freedman of the testator]; whereas other persons, who only pay a dividend, Edition: current; Page:  on subsequently acquiring any property, are liable to subsequent sales again and again.
§ 156. Sui et necessarii heredes are such as a son or daughter, a grandson or granddaughter by the son, and further lineal descendants, provided that they were under the power of the ancestor when he died. To make a grandson or granddaughter self-successor it is, however, not sufficient that they were in the power of the grandfather at the time of his death, but it is further requisite that their father in the life of the grandfather shall have ceased to be self-successor, whether by death or by any mode of liberation from parental power, as the grandson and granddaughter then succeed to the place of the father.
§ 157. They are called sui heredes because they are family heirs, and even in the lifetime of the parent are deemed to a certain extent co-proprietors; wherefore in intestacy the first right of succession belongs to the children. They are called necessary, because they have no alternative, but, willing or unwilling, both in testacy and intestacy, they become heirs.
§ 158. The praetor, however, permits them to abstain from the succession, and leave the estate of the ancestor to be sold as an insolvent one.
§ 159. The same rule governs a wife in the hand of a husband, for she is on the footing of a daughter, and a son’s wife in the hand of the son, for she is on the footing of a granddaughter.
§ 160. A similar power of abstention is granted by the praetor to a person held in mancipium when Edition: current; Page:  instituted heir with freedom annexed, although he is simply a necessary successor and not also a self-successor, mancipation being assimilated to servitude.
§ 161. Those who were not subject to the testator’s power are called strangers, or external heirs. Thus children not in our power, if instituted heirs, are deemed strangers; and for the same reason children instituted by their mother belong to this class, because women are not invested with power over their children. Slaves instituted heirs with freedom annexed, and subsequently manumitted, belong to the same class.
§ 162. External heirs have the right of deliberating whether they will or will not enter on an inheritance.
§ 163. But if either a person who has the power of abstention or a person who has the power of deliberation as to his acceptance of the inheritance, interferes with the property belonging to the inheritance, he has no longer the right of relinquishing the inheritance, unless he is a minor under twenty-five years of age; for minors, both when they take any other injudicious step, and when they incautiously accept a disadvantageous inheritance, obtain relief from the praetor. The late Emperor Hadrian even relieved a person who had attained his majority, when, after his acceptance of an inheritance, a great debt, unknown at the time of acceptance, had come to light.
§ 164. External heirs are commonly given by the will a prescribed term for decision (cretio), that is, a definite delay for deliberation, within which time they Edition: current; Page:  must formally accept, and in default of formal acceptance are barred. Cretio is so called because the word cernere is equivalent to decernere, that is, to come to a determination and resolution.
§ 165. Accordingly, after the words, ‘Titius, be thou my heir,’ we ought to add, ‘and formally declare thy acceptance within a hundred days in which thou knowest of thy institution and hast power to declare whether thou accept; or in default of so declaring be thou disinherited.’
§ 166. And the heir thus appointed, if he wish to inherit, must within the term prescribed solemnly declare his decision in the following words: ‘Whereas Publius Mevius in his will has made me his heir, that inheritance I hereby accept and adjudge to myself.’ In default of such formal declaration, the elapsing of the period allowed shuts him out from the inheritance, and it is of no avail that he behave as heir, that is, deal with the estate of the deceased as if he were heir.
§ 167. In the absence of a prescribed term for deliberation in the case of testamentary succession, and in the case of a statutory right of succession on intestacy, a man takes the inheritance either by formal declaration, or by behaving as heir, or by informal declaration, and is not barred from accepting by any lapse of time; but it is usual for the praetor, at the demand of the creditors of the deceased, to appoint a period, on the expiration of which without his acceptance the creditors are permitted to put up the estate of the deceased for sale.
§ 168. But just as a person who is instituted heir subject to a prescribed term for decision does not actually become heir Edition: current; Page:  unless he makes a formal declaration of his acceptance, so the only way he is excluded from the inheritance is by his not thus declaring within the last day of the appointed term; and though, pending the term, he may have made up his mind to disclaim, yet if he change his mind before the time is expired and formally declare his acceptance, he can become heir.
§ 169. If no term is prescribed in the institution, or in the case of a statutory right of succession on intestacy, just as an informal declaration makes him heir, so the contrary declaration immediately bars him from the succession.
§ 170. Every prescribed term of deliberation has a certain limit, and a reasonable limit is held to be a hundred days, yet by the civil law a longer or shorter period is allowed to be fixed, though a longer period is sometimes shortened by the praetor.
§ 171. Although, however, the time of deliberation is always limited to certain days, yet one mode of limitation is called ordinary, the other determinate; the ordinary being that above indicated, namely, with the addition of the words ‘in which he knows and is able’; determinate that in which these words are omitted.
§ 172. These modes are very different in effect, for when the ordinary period is allowed, the only days computed are those on which he knows of his institution and is in a position to decide, but when a determinate period is allowed, notwithstanding the heir’s want of knowledge of his institution, the days begin to be counted continuously; and so notwithstanding his inability from any cause to declare, or any condition Edition: current; Page:  annexed to his institution, nevertheless the days begin to be reckoned. Accordingly, it is better and more convenient to employ the ordinary mode of limitation.
§ 173. The determinate period is called continuous, because the days are reckoned continuously. On account of the harshness of this condition the other is commonly employed, and hence is called ordinary.
§ 152. The rules of institution and disinheritance were formal restrictions on the unlimited power of testamentary disposition, which was conferred by the terms of the Twelve Tables; § 102, comm. The general tendency and purpose of these restrictions are to protect children against the caprice of parents, and to be fully comprehended they should be viewed in connexion with the rules respecting testamentum inofficiosum, which were not simply formal but real restrictions of testamentary freedom. These limitations of testamentary power may be considered as consequences of the Roman conception of family duty. An English testator has unlimited power to dispose of his property, and natural feeling is supposed to be a sufficient guaranty that none of his children will be left without suitable provision. Of Roman testators Justinian says: Inst. 2, 18 pr. Plerumque parentes sine causa liberos suos vel exheredant vel omittunt. The grounds on account of which parents may disinherit children, and children parents, are stated by Justinian in his 115th Nov., where the law on the subject of disinherison is consolidated and amended. They had to be mentioned in the will, and it was open to the disinherited person to show that they were unfounded. It is to be noticed that foreign systems of law, following the Roman example, generally restrict the father’s power of disinherison. Cf Sohm, § 113. The principal impediments to or restrictions on testamentary freedom in the history of Roman law may be distinguished as follows:—
(1) We have seen, § 123, that a suus heres must either be instituted or disinherited, a rule which the praetor extended to an emancipated child, § 135. This secured him against being simply forgotten.
(2) If a child was disinherited without a cause, or received less than one fourth, either as heir or legatee, of what his share would have been by intestate descent (portio legitima), he could by impeaching the will as immoral or unnatural (querela inofficiosi testamenti) have it set aside on the fictitious presumption of the testator’s insanity. The presumption, at least, was so far fictitious that it was not allowed to Edition: current; Page:  be rebutted by any other proof of his sanity except proof of the adequacy of the motives for which the child was disinherited. The querela inofficiosi was a form of petitio hereditatis, that is, a real action, and fell under the jurisdiction of the centumviral court, 4 § 31. Cf. Pliny, Ep. 5, 1; 6, 33. The amount of the share which must be left to a child to save a will from avoidance for inofficiositas bears some analogy to a requirement of the lex Falcidia, for it is identical with the amount which that law secures to the child or any one else when instituted heir as against the claims of legatees. The querela inofficiosi could not only be brought by a child but also by certain other near relatives, namely, parents, and by brothers and sisters, but by the last only if a turpis persona was instituted. Children and other near relations, even though emancipated, might be entitled to this remedy. See Inst. 2, 18; Dig. 5. 2; Cod. 3, 28.
(3) Although a child (or any one else) were instituted heir, yet the institution might be made illusory by the exhaustion of the whole inheritance in legacies, leaving nothing to the heir but the burden of administration. To meet this, the lex Falcidia provided that when more than three fourths of an inheritance is absorbed in legacies, all the legacies should abate proportionably so as to leave the heir a clear fourth of the portion in which he was instituted (quarta Falcidia), § 227.
(4) The senatus consultum Pegasianum provided in the same way against the inheritance being similarly exhausted by fideicommissa, § 254.
We may add that an impubes adopted by adrogation, if disinherited or without cause emancipated, was entitled to one fourth of the inheritance of his adoptive father (quarta Antonini), 1 § 102; Inst. 1, 11, 3.
§ 154. Primo aut secundo vel etiam ulteriore gradu, for an account of substitutio see § 174, &c.
§ 155. Velut si Latinus, cf. § 195 and 3 § 58; and for an explanation of the idiom see note to this passage in Muirhead’s Gaius.
§ 157. Communism or co-ownership appears to be an older institution than divided or individual ownership. Even after the rights of the paterfamilias had been enormously developed at the expense of the rest of the household, as may have been the case in prehistoric times, a vestige of the times when property vested rather in the family than in the chief was perhaps preserved in the rules respecting the suus heres. Suus heres appears equivalent to sibi heres, and implies that he who now enters on proprietary rights in the character of paterfamilias had already possessed proprietary rights over the same subject-matter in the character of filiusfamilias.
Less barbarous than self-successor (the term chosen to represent suus heres as expressing sibi heres) but too long for perpetual use, would have been the circumlocution, immediate lineal successor. Edition: current; Page:  Suus heres is a lineal descendant as opposed to the legitimus heres or nearest agnate, who is a collateral relation, on whom the inheritance devolves by the lex duodecim Tabularum in case there are no sui: and he is an immediate heir as opposed to an eventual heir. For instance, a grandson by an unemancipated son is in the grandfather’s power, and may eventually be his heir, but is not his suus heres during the life of the son.
§§ 158-162. After acquiring an inheritance the heir became personally liable to the testator’s creditors for the full amount of the testator’s debts. But to relieve sui et necessarii heredes from being thus compulsorily burdened, the beneficium abstinendi was given them, § 158. The praetor could not, indeed, unmake, any more than he could make, a heres, but by his control over procedure he could put a person who had a civil title in the same position as if he had none, while, on the other hand, he regarded persons, having no civil title to the inheritance, as if they were heredes.
Adquisitio hereditatis by an external or voluntary heres may probably have required at first in all cases a formal act (cretio); but acting the part of heres (pro herede gerere), however informally, came to be recognized as equivalent in legal effect to a formal declaration, unless an institution was expressly made ‘cum cretione.’ The object of instituting an heir ‘cum cretione’ was to oblige him to accept or abandon the inheritance within a prescribed term. For otherwise the law allowed him to postpone his decision indefinitely, § 167.
It was to get rid of the inconvenience caused by leaving the inheritance open for a long period, that the praetor at the request of creditors of the estate fixed a period, generally a hundred days (tempus deliberandi), after which he authorized the sale of the property, § 167. When it became customary for the praetor to prescribe this time for deliberation, the formularies of cretio had no intelligible policy and were regarded as irksome. After being dispensed with in certain cases by other emperors, they were totally abrogated by Arcadius and Theodosius, a. d. 407. Cod. 6, 30, 17 Cretionum scrupulosam sollennitatem hac lege penitus amputari decernimus. ‘Solemn declaration with its embarrassing formalities is hereby decreed to be absolutely abolished.’ (For allusions to cretio by Cicero see Roby, Roman Law, 1, p. 396 and App. Bk. III.) For the repudiation of an inheritance by a voluntary heir no solemn form was at any time in use, and perhaps such repudiation was not legally recognized in early law, though it was possible for the heres to assign his right by in jure cessio. Thus an inheritance could not be lost any more than it could be acquired by a mere expression of intention, and it has been suggested that the abeyance of inheritances on this account was a cause which gave rise to bonorum possessio. In the Edition: current; Page:  time of Gaius, however, a heres could on delatio reject an inheritance by any informal act expressive of his intention, and the acceptance or rejection of an inhe