THE RULES OF ULPIAN.
FRAGMENTS OF THE RULES OF DOMITIUS ULPIANUS.
(1) A law is perfect, which forbids something to be done, and if it has been done rescinds it, such as the Lex ....1 A law is imperfect, which forbids something to be done, and if it has been done does not rescind it, and imposes no penalty upon him who breaks the law; such as the Lex Cincia, which prohibits more than two thousand asses to be donated, except to certain relatives, and if more than that is given does not rescind the donation.
(2) A law is less than perfect, which forbids something to be done, and if it is done, does not rescind it, but imposes a penalty upon him who violates the law; such as the Lex Furia relating to wills, which forbids the acceptance of more than a thousand asses as a legacy, and inflicts a penalty of quadruple the amount upon him who accepts a larger sum.
(3) A law is either passed, that is, enacted; or abrogated, that is, a former law is repealed; or modified, that is, a part of the original law is annulled; or subrogated, that is, something is added to the first law; or opposed by another, that is to say some part of the first law is changed.
(4) Custom is the tacit consent of the people confirmed by long-established practice.
1 Original manuscript illegible.
(5) There are three classes of freedmen, Roman citizens, Junian Latins, and those included in the number of dediticii.
(6) Those freedmen are Roman citizens who have been legally manumitted, that is, either by the authority of an official, by the census, or by will, where no lawful impediment exists.
(7) Where they are manumitted under the authority of an official, the ceremony is performed before a magistrate of the Roman people, as for instance a consul, a proconsul, or a prætor.
(8) Those manumitted by the census are such as formerly, at the Lustral Census of Rome, by the order of their masters, offered themselves to be enrolled among Roman citizens.
(9) The Law of the Twelve Tables rendered those free who are manumitted by will, as it confirms testamentary grants of freedom in the following words: "It shall be legal for him to bequeath them as part of his property."
(10) Latins are those freedmen who have not been legally manumitted, as for instance, in the presence of friends, where no legal impediment exists, and whom the Prætor formerly only protected as having the mere form of freedom, for they remained slaves by operation of law; at present, however, they are free by operation of law under the terms of the Lex Julia, slaves manumitted in the presence of friends being by this law designated Junian Latins.
(11) Those are included in the number of dediticii who have been placed in chains by their masters as a punishment; or who have been branded; or who, having been tortured on account of some offence have been found to be guilty; or who have been delivered up to fight with the sword, or with wild beasts; or who have been thrust into some gladiatorial school, or thrown into prison, and afterwards manumitted in any way whatsoever. This is effective by the Lex Ælia Sentia.
(12) It is provided by the same law that a slave under thirty years of age, who has been manumitted before a magistrate, does not become a Roman citizen, unless cause is shown for it in the presence of the Council; hence, it is held that a slave manumitted without the permission of the Council remains a slave. The law also directs that a slave manumitted by will is in the same position as if he had been liberated with the consent of his master, and therefore he becomes a Latin.
(13) The same law prohibits a minor under the age of twenty years from manumitting a slave, unless he gives good reason for doing so before the Council.
(13a) At Rome the Council is composed of five senators and five Roman knights; in the provinces of twenty judges who are Roman citizens.
(14) A slave directed to be free, and appointed heir by the will of his master who is insolvent, becomes a Roman citizen and the heir; even though he may be under the age of thirty years, or in such a position that he should be classed among dediticii; provided, however, that there is no other heir under the will. If two or more slaves are ordered to be free and become heirs, the first one mentioned becomes free and the heir; and this also is prescribed by the Lex Ælia Sentia.
(15) The same law forbids the manumission of a slave for the purpose of defrauding a creditor or a patron.
(16) Anyone who holds a slave merely by bonitarian, but not by quiritarian right, makes him a Latin by manumitting him. A slave is only held by bonitarian right, where, for instance, one Roman citizen buys him from another and the slave is delivered to him, but is neither mancipated nor surrendered in court, nor possessed by the purchaser for the term of a year; for, unless one of these things takes place although the slave forms part of the property of the purchaser by bonitarian right, he still belongs to the vendor by quiritarian right.
(17) A woman who is under guardianship, or a male or female ward cannot manumit a slave without the authority of his or her guardian.
(18) One of two owners, by the manumission of a slave held in common, loses his share which accrues to his partner; and this is especially the case where he manumits him in such a way that if he had the entire ownership, he would have made the slave a Roman citizen; for if he should manumit him in the presence of friends it is held by most authorities that his act would be void.
(19) Where the usufruct of a slave is in one party and the ownership in another, and the slave is manumitted by the latter, he does not become free, but is a slave without an owner.
(20) Freedom cannot be granted by a will either after the death of the heir or before his appointment, except in the case of a military will.
(21) A grant of freedom made between two appointments of heirs where both enter on the estate, is not valid; it, however, was valid, by ancient law where only the first heir appointed entered on the estate. But, after the enactment of the Lex Papia Poppæa, which leaves the share of the heir who does not accept without an owner; it was decided that the grant of freedom will still be valid, if the first heir appointed enjoys either the privilege of children, or the ancient right of accretion ; if, however, he does not do so it is settled that it is void, for the legatees who are fathers become the heirs of him who does not enter on the estate. There are some authorities, however, who hold that, even in this instance, the grant will be valid.
(22) A slave who is directed to be free by a will, becomes free just as soon as even one of the heirs enters on the estate.
(23) Lawful freedom can only be granted by a will to those slaves who, both at the time when the will was executed and at the death of the testator, belonged to him by quiritarian right.
(24) The Lex Fufia Caninia orders that out of three slaves not more than two shall be manumitted by will; and it permits half of those owned to be manumitted up to ten; from ten to thirty, a third, so that as many as five may be manumitted, as previously stated; from thirty to a hundred, the fourth, so that at least ten may be liberated as under the former number; from a hundred to five hundred, the fifth; and likewise, twenty-five may be freed under the preceding number. Finally, it directs that not more than a hundred shall become free under the will of any person whomsoever.
(25) The same law provides that grants of freedom to slaves shall be bestowed upon them by name.
CONCERNING A SLAVE, OR SLAVES, WHO ARE TO BE FREE UNDER A CONDITION.
(1) A slave who is ordered to be conditionally free under the terms of a will is called a Statuliber.
(2) He remains a slave of the heir as long as the condition is pending; when it is fulfilled he at once becomes free.
(3) Whether a slave of this kind is alienated by an heir, or anyone has the use and enjoyment of him, he carries the condition of his freedom with him.
(4) Where a slave is ordered to be free under the following condition : "If he should pay ten thousand sesterces to my heir"; even though he may have been alienated by the heir, by refunding the money to the purchaser he will obtain his freedom; and this is ordered by the Law of the Twelve Tables.
(5) If by any act of the heir the slave is prevented from complying with the condition, he becomes free, just as if the condition had been fulfilled.
(6) Where a slave is ordered to pay a certain sum of money to a stranger and become free, and he is ready to pay it, and the party to whom he was ordered to make payment either refuses to accept the money, or dies before receiving it, the slave becomes free, just as if he had paid the money.
(7) Freedom can be directly conferred as follows: "Be free"; "Let him be free"; "I order him to be free"; and by the terms of a trust, for instance: "I request," "I charge the good faith of my heir that he manumit the slave Stichus."
(8) A slave who is directly ordered to be free becomes the freedman of the testator; one to whom freedom has been granted by a trust becomes the freedman, not of the testator, but of the person who manumitted him.
(9) A party to whose good faith the transfer of property can be entrusted can also be entrusted to grant freedom to a slave.
(10) Freedom can be granted by a trust, not only to the testator's own slave but also to one belonging to the heir or legatee, or to any stranger whomsoever.
(11) When freedom is conferred by a trust upon the slave of another, and his owner will not sell him for a fair price, the grant of freedom is extinguished, since no computation of the value of freedom can be made.
(12) As freedom can be granted, so it can also be taken away by a will, or by a codicil confirmed by a will; provided, however, it is taken away in the same manner in which it was granted.
(1) Latins acquire the right of Roman citizenship in the following ways: by the favor of the Emperor, by children, by repetition, by service in the night-watch, by ship-building, by the construction of houses, by milling; and, in addition to this, a freeborn woman who has brought forth children three times, is entitled to this right under the Decree of the Senate.
(2) A Latin acquires Roman citizenship through the favor of the Emperor if he obtains it from the latter by petition.
(3) A Latin who was under the age of thirty years at the time of his manumission obtains the right of Roman citizenship by means of children, for it is provided by the Lex Junia that if he has married either a Roman citizen, or a Latin woman, and should state in the presence of witnesses that he did so for the purpose of having children; after the birth of a son or a daughter who has completed its first year, he may prove his case before the Prætor or Governor of the province, and he, as well as his son and daughter, and his wife, will become Roman citizens, provided she herself is a Latin; for if his wife is a Roman citizen, the child also becomes one by the Decree of the Senate enacted at the instance of the Divine Hadrian.
(4) A person becomes a Roman citizen by repetition who, having been made a Latin after he has passed his thirtieth year, is a second time legally manumitted by the person to whom he belonged as a slave by quiritarian right; such a person, however, under the Decree of the Senate is permitted to obtain the right of Roman citizenship by having children.
(5) A Latin acquires the right of Roman citizenship by the Lex Visellia if he serves for six years in the night-watch of Rome; and it is also granted to him by another Decree of the Senate if he has served for three years in the night-watch.
(6) A Latin acquires Roman citizenship by an Edict of the Divine Claudius, if he has built a ship having a capacity of not less than ten thousand measures of grain, and has used it during six years for the transport of grain to Rome.
CONCERNING THOSE WHO ARE THEIR OWN MASTERS.
(1) Those who are the heads of their families are their own masters, that is to say, the father and the mother of the family.
(2) Children born to a mother who is known, and a father who is unknown, are called illegitimate.
CONCERNING THOSE WHO ARE UNDER CONTROL.
(1) Children born in lawful marriage are under the control of their parents.
(2) Matrimony is lawful when legal marriage takes place between those contracting it, if the male has arrived at puberty, and the female is nubile, and when both consent, if they are their own masters; or their parents give their consent, if they are under their control.
(3) Marriage is the legal capacity for marrying a wife.
(4) Roman citizens can contract legal marriage with women who are Roman citizens; they can only do so, however, with Latins and aliens when the right has been especially granted them.
(5) Legal marriage cannot be contracted with slaves.
(6) Legal marriage cannot exist between blood relatives in the ascending or descending line. Formerly, marriage could not be contracted between blood relatives in the collateral line, as far as the fourth degree; now, however, a man can marry a wife related to him even in the third degree, but only the daughter of his brother; for he cannot marry the daughter of his sister, or his paternal or maternal aunt, although they are in the same degree. We cannot marry her who has been our stepmother, step-daughter, daughter-in-law, or mother-in-law.
(7) If anyone takes as a wife a woman whom he has no legal right to marry, he contracts an incestuous marriage; and hence his children are not subjected to his authority, but are illegitimate, as if conceived in promiscuous intercourse.
(8) When legal marriage takes place, the children always follow the father, but if it does not take place, they follow the condition of the mother; except where the child is born of an alien father, and a mother who is a Roman citizen, as the Lex Minica directs that where a child is born of parents one of whom is an alien, it shall follow the condition of the inferior parent.
(9) A child born of a father who is a Roman citizen and a Latin mother, is a Latin; one born of a freeman and a female slave, is a slave; since the child follows the mother as in cases where there is no legal marriage.
(10) In the case of children who are the issue of a legally contracted marriage, the time of conception is considered; in the case of those who were not legitimately conceived, the time of their birth is considered; for instance, if a female slave conceives and brings forth a child after having been manumitted, the child will be free; for while she did not lawfully conceive, as she was free at the time the child was born the latter will also be free.
(1) A dowry is either given, expressly stated, or promised.
(2) A woman who is about to be married can state her dowry, and her debtor can do so, at her direction; a male ascendant of the woman related to her through the male sex, such as her father or paternal grandfather, can likewise do so. Any person can give or promise a dowry.
(3) A dowry is either said to be profectitious, that is, one which the father of the woman gives; or adventitious, that is, one given by anyone else.
(4) When a woman dies during marriage, her dowry given by her father reverts to him, a fifth of the same for each child she leaves being retained by the husband, no matter what the number may be. If her father is not living the dowry remains in the hands of the husband.
(5) An adventitious dowry always remains in the hands of the husband unless the party who gave it expressly stipulated that it should be returned to him, and a dowry of this kind is specifically designated receptitious.
(6) When a divorce takes place, if the woman is her own mistress, she herself has the right to sue for recovery of the dowry. If, however, she is under the control of her father, he having been joined with [his] daughter, can bring the action for the recovery of the dowry; nor does it make any difference whether it is adventitious or profectitious.
(7) If the woman dies after the divorce, no right of action will be granted to her heir, unless her husband has been in default in restoring her dowry.
(8) If the property constituting the dowry is composed of articles which can be weighed, counted, or measured, it should be returned at the end of one, two, and three years; unless it was agreed that it should be returned at once. Other dowries are returned without delay.
(9) Portions of a dowry are retained either on account of children, on account of bad morals, on account of expenses, on account of donations, or on account of articles which have been abstracted.
(10) A portion is retained on account of children, when the divorce took place either through the fault of the wife, or her father; for then a sixth part of the dowry shall be retained in the name of each child, but no more than three-sixths altogether.
(11) These sixths can be retained, but cannot be recovered by a suit; for when a dowry has once been disposed of, it cannot again be brought in question except when another marriage takes place.
(12) A sixth of the dowry is also retained on the ground of a flagrant breach of morals; an eighth, where the offence is not so serious. Adultery alone comes under the head of a flagrant breach of morals, all other improper acts are classed as less serious.
(13) The adultery of a husband, if he is of age, is punished by requiring him to return the dowry at once, if it was to have been returned after a certain time; if his offence is less grave, it must be returned within six months. When, however, it is to be returned immediately, he is required to pay out of the profits an amount equal to the difference between immediate repayment, and payment in one, two, or three years.
(14) There are three kinds of expenses, which are designated either necessary, useful, or for the purpose of pleasure.
(15) Expenses are necessary, when, if they are not incurred, the property composing the dowry will become deteriorated; for instance, when anyone repairs a house which is falling into ruin.
(16) Expenses are useful when, if they are not incurred, the property constituting the dowry will not become diminished in value, but, if they are incurred, it will yield a better revenue; for instance, if vineyards and olive orchards should be planted.
(17) Expenses for the purpose of pleasure are such as, if not incurred, will not cause the property composing the dowry to become less valuable, and if incurred, will not cause it to yield a more profitable revenue, which takes place where pleasure gardens are laid out, and pictures and other articles of this description are purchased.
CONCERNING THE LAW OF DONATIONS BETWEEN HUSBAND AND WIFE.
(1) A donation between husband and wife is not valid except in certain cases; that is to say, in apprehension of death, on account of divorce, or for the purpose of manumitting a slave. By the Imperial Constitutions, however, a woman is permitted to make a donation to her husband in order that he may be honored by the Emperor with the Senatorial or Equestrian dignity, or some other distinction of this kind.
(2) If a husband in anticipation of divorce abstracts anything belonging to his wife, he will be liable to an action for the clandestine removal of property.
(3) Where a husband obligates himself for his wife, or spends any money upon her property, when a divorce takes place, it is customary for him to provide for this by means of a tribunicial stipulation.
(4) Those children are also under parental authority, on account of whom a case of error is established, when marriage has been contracted by mistake among persons of unequal condition; for whether a Roman citizen marries a wife through ignorance supposing her to be a Roman citizen, when in fact she was a Latin, an alien, or one belonging to the class of dedititii; or whether a woman who is a Roman citizen through mistake marries an alien, or one belonging to the class of dedititii, thinking him to be a Roman citizen, marries a man whom she supposed to be a Latin; under the Lex Æælia Sentia, when the cause of the error has been proved, Roman citizenship shall be conferred upon the children, as well as the parents, with the exception of those who are dediticii; and in this way the children are placed under the control of their parents.
(1) Not only natural children, but also adopted children, are under the authority of their parents.
(2) Adoption takes place either by the act of the people, or by that of the Prætor or the Governor of a province. Adoption which occurs through the act of the people is specifically designated "arrogation".
(3) Those who are their own masters are arrogated by the act of the people; children under paternal control are, however, given by their parents in adoption, with the sanction of the Prætor.
(4) Arrogation only takes place at Rome; adoption takes place in the provinces before the governors thereof.
(5) Males, as well as females, can be adopted by the authority of the Prætor or Governor of a province; and this applies to those who are under and above the age of puberty. Women, however, cannot be arrogated by the act of the Roman people, and formerly minors also could not be arrogated, but they can be now by a Constitution of the Divine Antoninus, when proper cause has been shown.
(6) Those who are incapable of procreation, as for instance, eunuchs, may adopt in either way. The same rule applies to unmarried persons.
(7) Again, anyone who has no son may adopt a child as a grandson.
(7a) Women cannot adopt in either way, as they do not have even their natural children subject to their authority.
(8) Where the head of a household gives himself to be arrogated, his children also as grandchildren, pass under the control of the arro-gator.
CONCERNING THOSE WHO ARE IN THE HANDS OF THEIR HUSBANDS.
.... (1) It is settled that a wife is placed in the hand of her husband by the use of certain words, in the presence of ten witnesses, and by the offering of a solemn sacrifice, in which also a cake made of spelt is employed.1 ....2
1 Marriage by confarreatio was the oldest form of the ceremony known to the Romans, and was that used by the higher class of the people. The cake referred to was made of a hard grained wheat (Triticum Spalta), and, prepared and baked by the Vestal Virgins, was offered as a sacrifice to Jupiter in the presence of the highest dignitaries of the Roman priesthood, and then carried in solemn procession before the bride when she was taken to the home of the husband. It has been conjectured with much probability, that this cake was divided among the wedding guests, and if this be true, it discloses the origin of a custom which has survived to the present day. — ED.
2 Original manuscript illegible.
IN WHAT WAY PERSONS UNDER THE CONTROL OR SUBJECT TO THE AUTHORITY OF OTHERS ARE RELEASED FROM THE EXERCISE OF THAT RIGHT.
(1) Children are released from paternal control by emancipation, that is, if after having been sold they are manumitted. A son who has been sold three times, and manumitted three times, becomes his own master; for the Law of the Twelve Tables orders this in the following words: "If a father should sell his son three times, the son shall be free from his father." Other descendants both male and female, except sons, become their own masters by a single sale and manumission.
(2) Sons and daughters become independent by the death of their father, but grandsons only become free by the death of their grandfather, if, after the death of the latter, they do not pass under the control of their father; for instance, when at the time of their grandfather's death, their father had either already died, or had been released from parental authority; for, if at the time of the death of their grandfather, their father was under his control, by the decease of the former they come under the power of their father.
(3) If either the father or the son is interdicted from water and fire the right of parental authority is extinguished; because a person interdicted from water and fire becomes an alien, and an alien cannot have a Roman citizen, nor can a Roman citizen have an alien under his control.
(4) If a father is captured by the enemy, although he becomes the enemy's slave, still, when he returns he will recover all his former rights by the law of postliminium. As long as he is in the hands of the enemy, however, his authority over his son remains in abeyance, and when he returns he will again have him under his control; but if he should die in captivity, his son will become his own master. Likewise, if a son is captured by the enemy, the authority of his father will in the meantime remain in abeyance, on account of the law of postliminium.
(5) Those who are installed priests of Jupiter, or selected as vestal virgins, cease to be subject to parental authority.
(1) Guardians are appointed for males as well as for females, but only for males under puberty, on account of their infirmity of age; for females, however, both under and over puberty, on account of the weakness of their sex as well as their ignorance of business matters.
(2) Guardians are either legal, or are appointed under Decrees of the Senate, or derive their authority from custom.
(3) Legal guardians are such as are appointed by some law, and those are especially styled legal who are mentioned by the Law of the Twelve Tables, either openly, as agnates, or indirectly as patrons.
(4) Agnates are relatives of the male sex having a common father, and descending by the male sex through the members of the same family; as for instance, brothers, paternal uncles, the sons of brothers, and the sons of paternal uncles.
(5) ....1 Anyone who has manumitted a person who was free and sold to him either by a parent, or by a party to the sale, becomes his guardian in the same way as a patron, and is called a fiduciary guardian.
(6) Legal guardians may transfer the guardianship to another person in court.
(7) He to whom the guardianship is transferred is styled a cessionary guardian, and if he should die, forfeit his civil rights, or, in his turn, transfer the guardianship to another, it reverts to the legal guardian; and if the legal guardian should die, or lose his civil rights, the cessionary guardianship is also extinguished.
(8) So far as agnates are concerned, no cessionary guardianship at present takes place; as it was only permitted to transfer the guardianship of females in court, but not that of males. The Lex Claudia, moreover, abolished the legal guardianship of women, with the exception of that of patrons.
(9) Legal guardianship is lost by forfeiture of civil rights.
(10) There are three kinds of forfeiture of civil rights, the greatest, the intermediate, and the least.
(11) The greatest is that by which both citizenship and freedom are lost; for instance, where anyone is sold for not having returned his property to the censor; or where a woman has formed a union with the slave of another, in defiance of the warning of his master, and has become a slave under the Claudian Decree of the Senate.
(12) The intermediate forfeiture of civil rights is said to occur when citizenship is lost, but freedom is retained; which happens where a party is interdicted from water and fire.
(13) The least forfeiture of civil rights is that by which both citizenship and freedom are preserved, but only the condition of the person is altered, which takes place in adoption, and where one is placed in the hand of another.
(14) Testamentary guardians appointed by name are also confirmed by the Law of the Twelve Tables in the following words: "Let it be the law that a man can dispose of his money or the guardianship of his property." Such guardians are designated Dative.
(15) Guardians may be appointed by will for children who are under the control of their parents.
(16) Testamentary guardians who have the right to make, or take under, a will, may be appointed with the exception of a Julian-Latin, for although a Latin has testamentary capacity, nevertheless, he cannot be appointed a guardian, as the Lex Junia forbids it.
(17) A testamentary guardian does not lose his guardianship if he has suffered a forfeiture of civil rights, but if he should refuse it, he ceases to be guardian, for to refuse means to say that he is unwilling to act as guardian. A testamentary guardian, however, cannot transfer the guardianship in court; a legal guardian can do so, but cannot decline the guardianship.
(18) The Lex Atilia directs that guardians for women and minors who have none shall be appointed by the Prætor and a majority of the tribunes of the people, and these we call Atilian guardians. But, for the reason that the Lex Atilia only applies to Rome, it is provided by the Lex Julia et Titia that guardians of such persons may, in like manner, be appointed by governors in the provinces.
(19) The Lex Junia orders that he to whom the party belonged under quiritary right before his or her manumission shall be appointed the guardian of a Latin woman, or a Latin minor under the age of puberty.
(20) By the Lex Julia relating to the regulation of marriage, a guardian is appointed by the Prætor of the City for a woman or a virgin who is obliged to marry under the terms of this same law, for the purpose of giving, specifically stating, or promising a dowry when she has a minor as her legal guardian; but the Senate subsequently decreed that in the provinces guardians should also be appointed by the governors for this purpose.
(21) The Senate also decreed that another guardian should be appointed for the purpose of constituting a dowry, instead of a guardian who was dumb or insane.
(22) A guardian is likewise appointed by the Decree of the Senate for a woman whose guardian is absent, unless the latter is her patron ; for another guardian cannot be demanded instead of her absent patron, except for the purpose of enabling her to enter on an estate, or to contract marriage.
(23) The Senate further decreed that if the guardian of a male or female ward should render himself liable to suspicion, and be removed from the guardianship, or if he should be excused for some good reason, another guardian shall be appointed in his stead.
(24) In accordance with custom, a guardian is appointed for a woman or a minor who desires to bring a legal action against her own guardian, in order that she may do so by him as her representative; (for a guardian cannot become the principal party in a matter of his own) ; and he is called a prætorian guardian; as it is customary for him to be appointed by the Prætor of the City.
(25) The guardians of male and female wards transact their business and sanction their acts; the guardians of women only sanction their acts.
(26) Where there are several guardians all of them should authorize every transaction, with the exception of those who are appointed by will; for the authority of any one of these is sufficient.
(27) The authority of a guardian is necessary for women in transactions of this kind, that is, where they bring a legal action, or bind themselves, or transact any civil business, or where they permit a freedwoman of theirs to cohabit with the slave of another, or alienate mancipable property. In addition to this, the authority of a guardian is required by wards in the alienation of property which is not mancipable.
(28) Males are released from guardianship by puberty. The Cassians say that anyone has reached puberty who bears the evidence of that condition upon his body; that is to say, who is capable of procreation. The Proculians hold that he has arrived at puberty who has completed his fourteenth year; but Priscus is of the opinion that he only has arrived at puberty in whom both of these qualifications coincide, namely, the condition of his body, and the number of his years.
(28a) Women are released from guardianship by the right of having three children, but freedwomen who are under the guardianship of a patron are only released by having four.
1 Original manuscript illegible.
(1) Curators are either legal, that is, those who are appointed under the Law of the Twelve Tables, or Prætorian, that is such as are appointed by the Prætor.
(2) The Law of the Twelve Tables also directs a spendthrift who has been forbidden to have control of his property, to be under the curatorship of his agnates.
(3) A curator may be appointed by the Prætor for freedmen who are spendthrifts, as well as for freeborn persons who, having been appointed heirs by the will of a parent, are squandering their property; for a curator could not legally be appointed for persons of this kind, as a man who is freeborn becomes the heir of his father by will, and not on the ground of intestacy.
A freedman, however, can, under no circumstances, become the heir of his father, because he is not considered to have had a father, as servile cognation does not exist.
(4) Moreover, the Prætor appoints a curator for one who, having recently arrived at the age of puberty, is not capable of transacting his own business....1
1 Original manuscript illegible.
CONCERNING A MAN WHO IS UNMARRIED, ONE WHO HAS NO CHILDREN, AND A FATHER WHO HAS BUT A SINGLE CHILD.
(1) By the Lex Julia Senators, as well as their children, are forbidden to marry their freedwomen or any women when either they themselves, or their fathers or mothers were professional actors.
(2) The same persons, and others who are freeborn, are forbidden to marry women who were public prostitutes, or procuresses, or any women manumitted by a procurer or a procuress; or one (who) had been taken in adultery or convicted of a crime, or who had belonged to the theatrical profession; and to these the Maurician Decree of the Senate adds a woman who has been convicted by the Senate....1
1 Original manuscript illegible.
CONCERNING THE PENALTY OF THE LEX JULIA.
(1) The Lex Julia granted exemption from its penalties to women for a year after the death of their husbands, and for six months after a divorce had taken place; the Lex Papia granted them two years from the death of their husbands, and a year and six months after a divorce.. ..1
1 Original manuscript illegible.
(1) Husband and wife may, under a will, take one tenth of the estate of either on account of marriage; but if either of them have surviving children by a previous marriage, he or she may, in addition to the tenth on account of marriage, take as many more tenths as there are children.
(2) Any son or daughter born to both of them, who dies after the day when he or she was named adds another tenth; and two of them dying after the day when they were named add two tenths.
(3) In addition to the tenth, either of the parties can take the usufruct of the third portion of the estate of the other, and when they have children, the ownership of the said portion, as well; and further, the woman, in addition to the tenth, can take her dowry if it is left to her.
CONCERNING THE CAPACITY OF HUSBAND AND WIFE TO RECEIVE IN FULL WHAT MAY BE LEFT BY THE OTHER.
(1) Sometimes husband and wife can take the entire amount which one leaves to the other; for instance, where both, or either of them are not yet of the age at which the law requires children, that is, where the husband is under twenty-five, or the wife under twenty; and likewise, if both of them have passed the age in marriage prescribed by the Lex Papia, that is to say where the husband has reached sixty years, and the wife fifty; and also if they are related to one another as far as the sixth degree.
(1a) They are free to make wills in favor of one another if they have obtained the right of children from the Emperor; or if the husband is absent on business for the State for a year and afterwards returns ; or if they have a son or daughter; or have lost a son fourteen years of age, or a daughter of twelve; or if they have lost two children of three years of age, or three after they have been named; and if a child of any age, under puberty, should be lost within eighteen months, the right will be granted them to take in full all that is left. Again, if the wife should have a child by her deceased husband within ten months after his death, she can take in full whatever he may have left her out of his estate.
(2) Sometimes they take nothing from one another; that is when they have contracted marriage in violation of the Lex Julia Papiaque Poppea; for example, where a freeborn man marries a woman of infamous character, or a senator a freedwoman.
(3) Any man who has failed to comply with either provision of the law within his sixtieth year, or a woman within her fiftieth (although, after this age, he or she may be released by the same law), are always liable to the penalties of the Persician Decree of the Senate.
(4) By the Claudian Decree of the Senate, however, if a man over sixty years of age marries a woman under fifty the result will be the same as if he had married her while under sixty. But, on the other hand, if a woman who is over fifty marries a man under sixty, the marriage is called unequal, and provision is made by the Calvitian Decree of the Senate, that it shall be of no avail for the purpose of receiving an estate, a legacy, or a dowry. Hence, if the woman dies, the dowry will be without an owner....1
1 Original manuscript illegible.
CONCERNING LAPSED LEGACIES.
(1) Anything which is left to a person by a will in such a way that he could take it under the Civil Law, and he, for some reason failed to do so, is called "caducous" (as if it had fallen from his hands) ; for instance, where a legacy is bequeathed to an unmarried man, or to a Junian Latin, and the unmarried man does not comply with the law within a hundred days, or the Latin does not obtain the right of Roman citizenship; or where an heir appointed to a portion of an estate, or a legatee dies, or becomes an alien before the opening of the will....1
(2) At present, by a Constitution of the Emperor Antoninus, all lapsed legacies are confiscated to the Treasury; but by the ancient law they were preserved for the descendants and ascendants of the testator.
(3) Legacies lapse with the burdens attaching to them; hence grants of freedom, bequests, and trusts with which the party on whose account the estate became caducous was charged, still remain operative. Both legacies and trusts, however, become caducous along with their burdens....1
1 Original manuscript illegible.
WHO ARE GOVERNED BY THE ANCIENT LAW IN THE CASE OF LAPSED LEGACIES.
(1) Moreover, the Lex Papia granted the ancient right to the descendants and ascendants of the testator as far as the third degree, so that if they were appointed heirs, what any one of them did not take under the will would belong to the others, either wholly or in part, according to circumstances....1
1 Original manuscript illegible.
CONCERNING OWNERS, AND THEIR ACQUISITION OF PROPERTY.
(1) All property is either mancipable, or not mancipable. Mancipable property is land situated in Italy, both rustic, such as a field, and urban, such as a house; likewise all rights attaching to rustic estates, as the right of way, to pass, or drive; the right to conduct water, and also slaves, and quadrupeds broken to yoke or saddle, as for instance, oxen, mules, horses, and asses. All other property is not mancipable, for elephants and camels, although they are trained to haul loads and carry burdens, do not come under this category, as they are classed among wild beasts.
(2) The ownership of individual articles of property is acquired by us by mancipation, by delivery, by surrender in court, by usucaption, by adjudication, and by law.
(3) Mancipation is a kind of alienation peculiar to property of this kind, which is made by the use of certain words in the presence of a balance-holder and five witnesses.
(4) Mancipation takes place between Roman citizens, Latin colonists, Junian Latins, and those aliens to whom commercial privileges have been granted.
(5) Commerce is the right of reciprocal purchase and sale.
(6) Movable property cannot be mancipated, unless the parties are present, and not more than can be taken in the hand should be disposed of; several tracts of immovable property can, however, be mancipated at one time, even though they be situated in different places.
(7) Delivery is a species of alienation peculiar to property which cannot be mancipated. We acquire the ownership of property of this kind by mere delivery, provided it is transferred to us by a legal title.
(8) By usucaption we obtain the ownership of property which is either susceptible, or not susceptible of mancipation. Moreover, usucaption is the acquisition of ownership by uninterrupted possession for one or two years; for one year in the case of movable property, for two in the case of property which is immovable.
(9) Surrender in court is a kind of alienation common to property which can be mancipated as well as to that which cannot. It is effected by the agency of three persons, the one who surrenders, the one who claims, and the one who awards it.
(10) The owner surrenders the property in court, the party to whom it is surrendered claims it, the Prætor awards it.
(11) Incorporeal property, as, for instance, an usufruct, an inheritance, and the legal guardianship of a freedwoman, can also be surrendered in court.
(12) An estate is surrendered in court either before or after it has been entered on.
(13) Before it is entered on, it can be surrendered in court by the heir-at-law; after it has been entered on, it can be surrendered either by the heir-at-law, or by the testamentary heir.
(14) If an estate is surrendered in court before it is entered on, the party to whom it is surrendered becomes the heir, just as if he himself was the heir-at-law.
(15) If it is surrendered in court after it has been entered on, he who surrendered it remains the heir, and for this reason continues to be liable to the creditors of the deceased; but the debts are extinguished, that is, the debtors of the deceased are discharged from liability; the corporeal property, however, passes to the party to whom the estate was surrendered, just as if the articles had been transferred to him, one at a time.
(16) We obtain ownership through adjudication, by means of the proceeding in partition which is instituted among co-heirs; by that for the division of common property which applies to partners; and by that for the establishment of boundaries, which is employed by neighbors. For if a judge should adjudicate any property to one of several heirs, partners, or neighbors, it will immediately be acquired by the latter, whether it is susceptible of mancipation or not.
(17) Property is acquired by us by law, for example, where it has lapsed or been forfeited under the Lex Papia Poppeæ, and also where it has been bequeathed under the Law of the Twelve Tables; whether it is susceptible of mancipation or not.
(18) Moreover, property is acquired by us by means of those persons whom we hold subject to our authority, in our hand, or in servitude; hence, if they have received anything, for instance, by sale, or any property has been delivered to them, or if they have stipulated for something, it belongs to us.
(19) Again, if they have been appointed heirs, or a legacy has been bequeathed to them, and they enter on the estate by our order, they acquire it for us, and the legacy belongs to us.
(20) If a slave forms part of the property of one person by bonitarian right, and belongs to another by quiritarian right, in every instance he acquires for the party entitled to bonitarian right.
(21) Anyone whom we possess in good faith, whether he be free or the slave of another, only acquires for us in two instances, that is where he obtains anything by means of our property, or by his own labor; with the exception of these cases, if he is free, he acquires for himself, or if he is the slave of another, he acquires for his master. The same rule applies to a slave in whom we have only the usufruct....1
1 Original manuscript illegible.
(1) A testament is the legal statement of our will, solemnly made in order that it may become operative after our death.
(2) There were formerly three kinds of wills, one made in the presence of the Comitia, one made when about to enter into battle, and one made by means of a piece of bronze and a balance. The two first having been abolished, at present the only one in use is that made by means of a piece of bronze and a balance, that is to say, by a fictitious sale. In the execution of this kind of a will a balance holder and a purchaser of an estate are present, as well as not less than five witnesses who have testamentary capacity.
(3) No one who is under the control of the testator or of the purchaser of the estate can act either as a witness or balance-holder; as the sale of the estate takes place between the testator and the purchaser, and for this reason members of their households cannot act as witnesses.
(4) If a son is the purchaser his father cannot be a witness.
(5) Of two brothers who are under the control of the same father, one cannot act as purchaser and the other as a witness; as what one of them receives by the sale he acquires for his father, and a son of the latter should not be a witness to this transaction.
(6) A father, however, and a son who is under his control, as well as two brothers who are under the control of the same father, can both be witnesses; or one can be a witness, and the other the balance-holder, when a third party is the purchaser of the estate; as no harm results where several witnesses are taken from the same household in a transaction with a stranger.
(7) A person who is deaf, dumb, or insane, a minor, or a woman cannot act either as purchaser or balance-holder.
(8) A Junian Latin may act either as purchaser, witness, or balance-holder, as he has no right to make a will.
(9) In a will made by means of a piece of bronze and a balance, two things take place, the sale of the estate, and the declaration with reference to the will. The declaration with reference to the will is made in the following manner; the testator holding the will in his hands says: "Whatever is written in these waxen tablets I give, bequeath, and declare to be my will, and therefore do you, Roman citizens, give your testimony." This verbal statement is also called an attestation.
(10) A son under paternal control cannot execute a will as he has nothing of his own of which to make testamentary disposition. The Divine Augustus, however, granted as a military privilege, that a son under paternal control who was a soldier, could make a will disposing of the peculium which he had acquired while in camp.
(11) Anyone who is uncertain as to his condition, for instance, when he is ignorant that he is his own master because his father died while absent on a journey, cannot make a will.
(12) A person under the age of puberty, although he may not be subject to parental authority, cannot make a will; as he has not yet full mental capacity.
(13) One who is dumb, deaf, or insane, as well as a spendthrift interdicted by law from the control of his property, cannot make a will; a dumb person for the reason that he cannot speak the words of the declaration; one who is deaf, because he cannot hear the words uttered by the purchaser of the estate; an insane person, as he has not sufficient intelligence to permit him to make the declaration with reference to the property; the spendthrift, because he is forbidden to engage in commercial transactions, and hence cannot sell his estate.
(14) Likewise, a Junian Latin and one included among the dediticii cannot make a will. A Junian Latin is incapable as he is expressly forbidden by the Junian Law, nor can one of the dedititii, because he is unable to make a testamentary declaration as a Roman citizen, for the reason that he is an alien; and he is prevented from doing so, as an alien, since he is a citizen of no certain country, and cannot dispose of his property by will in accordance with its laws.
(15) Women who are over twelve years of age can make a will with the authority of their guardians, as long as they remain under guardianship.
(16) A public slave of the Roman people has the right to make a will disposing of half of his peculium.
HOW AN HEIR SHOULD BE APPOINTED.
(1) An heir can be properly appointed by the following words: "Let Titius be my heir", "I order Titius to be my heir"; but an appointment made as follows: "I appoint Titius my heir"; "I make Titius my heir"; is disapproved by the greater number of authorities....1
1 Original manuscript illegible.
WHO CAN BE APPOINTED HEIRS.
(1) Those can be appointed heirs who have a right to make a will with the testator.
(2) A person included in the number of dedititii cannot be appointed an heir because he is an alien, and has not testamentary capacity.
(3) A Junian Latin can make a will, if at the time of the death of the testator he is, or before the term prescribed for the acceptance of the estate has elapsed, he becomes, a Roman citizen; but if he remains a Latin, he is prohibited by the Junian Law from taking the estate. The same rule applies to unmarried persons on account of the Lex Julia.
(4) A person who is uncertain cannot be appointed an heir, for instance, as follows: "Let whoever first comes to my funeral be my heir"; as the intention of the testator should be certain.
(5) Nor can municipalities, or the members of the same be appointed heirs, as the body is uncertain, and all of them cannot decide, or act as heirs in order to become such; still, by a Decree of the Senate they are permitted to be appointed heirs by their freedmen. An estate left in trust, however, may be transferred to the members of a municipality, for this is provided for by a Decree of the Senate.
(6) We cannot appoint any of the gods our heirs, except those whom we are permitted to appoint by a Decree of the Senate, or by the Imperial Constitutions; for instance, the Tarpeian Jove, the Didymaean Apollo of Miletus, Mars in Gaul, the Trojan Minerva, Hercules of Gades, Diana of Ephesus, the Sipylenian Mother of the gods worshipped at Smyrna, and the Heavenly Goddess Selene of Carthage.
(7) We can appoint slaves our heirs, our own with the grant of freedom, those of others without the grant of freedom, and slaves owned in common whether with or without the grant of freedom.
(8) We can not appoint a slave our heir, even with the grant of freedom, who belongs to us merely by bonitarian right, because he only obtains Latinity, which is no benefit to him in receiving an estate.
(9) We can only appoint slaves who belong to others our heirs when we have the right to make a will with their masters.1
(10) A slave owned in common by us and another party can properly be appointed an heir with the grant of his freedom, only so far as our share in him is concerned, and if appointed without the grant of freedom, only so far as the share of the partner is concerned.
(11) If a slave entirely owned by the testator is appointed his heir with the grant of his freedom and remains in the same condition, he becomes free, and the heir under the will, that is a necessary heir.
(12) But if he has been either manumitted or alienated by the testator himself during his lifetime, he can enter on the estate at his own discretion, or by the order of his purchaser. If, however, he was appointed without the grant of freedom his appointment is absolutely void.
(13) When a slave belonging to another is appointed an heir and remains in the same condition, he should enter on the estate by order of master, but if he has been manumitted or alienated by his master during the lifetime of the testator, he can either enter on the estate at his discretion, or do so by order of his purchaser.
(14) Proper heirs should either be appointed or disinherited. Proper heirs are children, natural as well as adopted, whom we have under our control, as well as our wives whom we have in our hand, and our daughter-in-law who is in the hand of a son subject to our authority.
(15) Posthumous children also, that is to say those who are yet unborn, where they are such that if they were already born they would be under our control, are included in the number of proper heirs.
(16) When a son, who is one of our proper heirs, is neither appointed heir nor disinherited by name, this prevents the will from being valid.
(17) If, however, other descendants, for example, a daughter, a grandson, or a granddaughter, are passed over, the will is valid, but they are entitled to share the estate with the appointed heirs; the proper heirs having a right to equal shares, and strangers having a right to half of the estate.
(18) Posthumous children, of either sex, if not mentioned in the will destroy its validity by their birth.
(19) If unborn children would be our proper heirs after their birth, we can appoint them heirs; if they are born after our death, we can make the appointment under the Civil Law; if born during our lifetime, we can do so by the Lex Junia.
(20) When a son who is under paternal control is not appointed heir, he should be disinherited by name, and the remaining proper heirs of either sex should be either disinherited by name, or among the others.
(21) A posthumous son should be disinherited by name. A posthumous daughter or any other descendant, should be disinherited either by name, or among the others; provided in the latter instance something is bequeathed to those who are disinherited.
(22) Grandsons, great-grandsons, and other male posthumous descendants should be either disinherited by name, or among the others, with the addition of a legacy; but the safer plan is to disinherit them by name, and this is generally practised.
(23) Although by the Civil Law, it is not necessary either to appoint or disinherit emancipated children, still, the Prætor orders that if they are not appointed heirs, they shall be disinherited; all the males by name, the females by name or among the others; otherwise, he promises them possession of the estate in opposition to the provisions of the will.
(24) Under the Civil Law no difference exists between necessary heirs, that is slaves who are appointed heirs with the grant of freedom, and proper and necessary heirs, that is, children who are under paternal control; for both of them become heirs even against their wishes. By the Prætorian Law, however, proper and necessary heirs are permitted to reject the estate of a parent, but authority to do this is not granted to heirs who are only necessary.
(24a) The Prætor places in the class of proper heirs children who have been sold by the party under whose authority they were, as well as those who have been remancipated, when they have been appointed heirs by their parents with the grant of freedom; and therefore power is given to them also to reject the estate.
(25) A foreign heir, if he was appointed with the right to declare his acceptance, becomes the heir by doing so; if, however, he was appointed without it, he will become the heir by acting as such.
(26) He acts as heir who makes use of the property of an estate as if he were the owner, for example, where he puts it up at auction, or provides the slaves of the estate with food.
(2?) The right of declaration is the privilege granted to an appointed heir to deliberate for a certain time as to whether it is expedient for him to enter on the estate, or not, as, for instance: "Titius, be my heir, and decide within the next hundred days after you have learned of your appointment, and can do so; and if you do not decide, you shall be disinherited."
(28) "To declare" is to state the words of the decision as follows: "As Mævius has appointed me his heir, I hereby enter on, and decide to accept, his estate."
(29) Where an heir who was appointed without the right to deliberate decides that he is unwilling to be the heir, he is immediately excluded from the estate, and cannot afterwards enter on it.
(30) When an heir is appointed with the right of deliberation, as by making his declaration he becomes the heir, so he cannot be excluded, unless he fails to state his decision within the time prescribed by law; and hence, even if he decides not to be the heir, and any of the time granted for the declaration remains, he can, by changing his mind, still become the heir, if he announces his acceptance of the estate.
(31) A declaration of acceptance is called either common, or continuous: common, in which the following words are added, namely, "In which you know and can do so"; continuous, in which they are not added.
(32) Only those days are computed against one who is entitled to the common declaration of acceptance during which he knew that he had been appointed heir and could have declared his acceptance; but those days are computed against him who has the continuous right to declare his acceptance in which he was ignorant that he was appointed heir, or if he knew it, was unable to make his declaration.
(33) Heirs are said to be either appointed or substituted. Appointed heirs are those mentioned in the first place in a will; substitutes are those mentioned as heirs in the second, or a subsequent place, for example: "Titius, be my heir, and make your declaration in the next hundred days after you have learned of your appointment, and can do so; and if you do not make your declaration in this way, be disinherited. Then Mævius, be my heir, and decide within the next hundred days, etc." In like manner other substitutes may afterwards be appointed.
(34) If an heir is appointed under an imperfect declaration clause, that is one in which the following words are not inserted: "If you do not make your declaration, be disinherited," but the following words
are employed: "If you do not make your declaration, then Mævius be my heir"; the heir appointed by making this declaration excludes his substitute; but by not doing so, and by acting as heir, he admits his substitute to share in the estate; the Divine Marcus, however, afterwards decided that by acting as heir he will be entitled to the entire estate. But if he neither makes his declaration nor acts as heir, he will be excluded, and his substitute will become heir to the entire estate.
1 Testamenti factio signified not only testamentary capacity, but also competency to take under a will. The most important requisite of a will was that the designated heir should be legally capable of testamentary disposition along with the testator. This was not indispensable, however, as a slave who did not possess it might be appointed heir with the gift of freedom, when an estate was known, or supposed to be, insolvent, in order to prevent the reputation of the deceased from becoming infamous, which it otherwise would be, if, at the time of his death, he was unable to discharge his pecuniary obligations. It was also necessary that the property bequeathed should be susceptible of ownership or occupancy by the legatee, as, if this were not the case, it would be void. "Quod si testamenti facti tempore decessisset testator, inutile foret, id legatem quandocunque decesserit non valere." (Digest, XXXIV, VII, 1.) — ED.
HOW WILLS ARE BROKEN.
(1) A will legally executed becomes void in two ways, by being broken, or by becoming of no effect.
(2) A will is broken by change, that is, if another will is afterwards legally executed; also by birth, that is, if a proper heir should be born who was neither appointed heir nor disinherited, as is required.
(3) A proper heir either appears by birth, by adoption, by coming into the hand, by succeeding to the place of another proper heir, as for instance, a grandson, where the son either dies or is emancipated; or by manumission, that is, if a son, after having been manumitted by a first or second mancipation, again passes under the control of his father.
(4) A will becomes of no effect, if the testator should lose his civil rights, or, if having been executed according to law, no heir should appear.
(5) If the person who made the will is captured by the enemy, it still remains valid; if he returns it is valid by the law of postliminium; if he dies in the hands of the enemy, it is valid by the Lex Cornelia which confirms his succession, just as if he had died in his own country.
(6) If a will is sealed with the seals of seven witnesses, even though it may be broken, or become of no effect under the Civil Law, the Prætor grants possession of the property of the estate to the appointed heirs in accordance with the provisions of the will, if the testator, at the time of his death, was a Roman citizen, and his own master ; and this possession of the estate becomes operative, that is to say, takes effect, if there is no other heir-at-law.
(7) Parents can substitute heirs for their children who are under the age of puberty and subject to their authority, whether they are born or not, in two ways; that is, either in that by which an heir is substituted for strangers, where there are no children who are heirs; or by their own right, that is, if they became heirs after the death of their parents, but died before reaching the age of puberty, for then the substitute shall become the heir.
(8) Parents are even permitted to make substitutions for their, disinherited children.
(9) No one, however, can appoint an heir as a substitute for a child under the age of puberty, unless he either appointed the same child or someone else his heir.
(10) The wills of soldiers are valid, no matter how or when they are made; that is, even if they are executed without the observance of the legal formalities; for by the Imperial Constitutions they are permitted to make a testamentary disposition of their property in any way they desire, and in any way they can.1 A will made by a soldier contrary to the rules of law is only valid if he dies in the service, or within a year after his discharge.
1 The military testament of the Roman legionary was the prototype of these adopted by most nations in subsequent times, by which important privileges were conceded to soldiers and sailors with reference to the testamentary disposal of their estates. The great latitude allowed those engaged in the defence of their country, is derived from a custom having the force of law, which was generally observed long before the compilation of the Twelve Tables. It was publicly sanctioned by Cæsar, and was confirmed by the edicts and ordinances of many succeeding emperors. In its original form it was designated testamentum in procinctu factum, through its being executed on the eve of an engagement by a soldier armed and "girded" for battle.
The testamentum militare was usually nuncupative; but it might be written in any manner and upon any substance when exigency demanded, and even be inscribed upon a part of his armor or equipment by the finger of the testator dipped in his own blood, or traced in the dust of the field with the point of a weapon. The privilege was not restricted to actual combatants, but was enjoyed by all persons in attendance upon, or attached to the army, including the wives and female companions of soldiers. In granting it, the general illiteracy of the favored class and their ignorance of legal formalities were also taken into consideration, as well as the honorable character of the profession to which they belonged. So extensive was this right that, in its exercise, even the most important laws were habitually disregarded. Only two witnesses were required to render a military will valid, where otherwise seven were indispensable; and foreigners or women, not competent under other circumstances, could act in this capacity; the testator could ignore the reservation of the Falcidian fourth for the benefit of the heir; the fact that he was deaf and dumb was not considered a disqualification; he could die partly testate and partly intestate; he could disinherit his children without naming them; he could make any number of wills, all of which would be valid if they did not contradict one another; he could appoint as his heirs aliens and other persons incapable of taking under a regular testament; and he was allowed to institute a direct heir by a codicil. The will of a soldier was probably only valid for a year after his honorable discharge from military service; dishonorable dismissal rendered it, ipso facto, void.
In England, by the Statute of Frauds, which so generally restricted the execution of nuncupative wills as almost absolutely to invalidate them, the following exception is made in favor of soldiers and sailors. "Soldiers in actual Military Service, and Mariners at Sea, may dispose of their Personal Estates, as before the making of this Act." (Stat. 29, Car. II. Cap. 3.) This privilege has been confirmed by subsequent legislation.
The ordinary legal formalities demanded in the execution of wills are largely dispensed with in the case of persons in the military or naval service of other European nations. (Cod. Civ. de France, Arts. 981, 988; Cod. Civ. Annoté de Belgique, Arts. 981, 988; Cod. Civ. de Espana, Arts. 716, 722; Cod. Civ. Portuguez, Arts. 1945, 1949; Allgemeines Bürgerliches Gesetzbuch. (Austria) Art. 601. The Japanese law on the subject is adapted from the French. (Civ. Code of Japan, Art. 1078.) Similar provisions with reference to the testation of soldiers and sailors are to be found in the statutes of several States of the Union. — ED.
(1) A legacy is what is bequeathed by a will as a law, that is, imperatively. For anything left as a request is designated a trust.
(2) We bequeath legacies in four ways, by claim, by condemnation, by permission, and by preference.
(3) By claim we bequeath in the following terms: "I do give and bequeath"; "Let him take"; "Let him have for himself".
(4) By condemnation, we bequeath as follows: "Let my heir be required to give this"; "Let my heir give"; "Let my heir do"; "I order my heir to give."
(5) By permission, we bequeath as follows: "Let my heir be required to permit Lucius Titius to take such-and-such property, and have it for himself."
(6) By preference, we bequeath as follows: "Let Lucius Titius take such-and-such property as a preferred legacy."
(7) Property which belonged to the testator by quiritarian right both at the time of his death and when he executed his will, can be bequeathed by claim, with the exception of articles which can be weighed, counted, or measured; for, with reference to these, it is sufficient if they belonged to him by quiritarian right only at the time of his death.
(8) Every kind of property can be bequeathed by condemnation, even that which does not belong to the testator, provided it is of such a nature that it can be given.
(9) A man who is free, or property which belongs to the people or is either sacred or religious, cannot be bequeathed by condemnation; for the reason that it cannot be given.
(10) Property which belongs to the testator or his heir can be bequeathed by permission.
(11) The same property which can be bequeathed by claim can also be bequeathed as a preferred legacy.
(11a) If property which did not belong to the testator by quiritarian right at both times, is bequeathed by claim, although the legacy is not valid under the Civil Law, it is still confirmed by the Neronian Decree of the Senate; which provided that a legacy bequeathed in insufficient terms is considered just as if the bequest had been expressed in the best form possible, and the best form of a legacy is that which is left by condemnation.
(12) If the same property is bequeathed by claim to two persons either conjointly, as for instance: "I give and bequeath the slave Stichus to Titius and Seius"; or separately, as for instance: "I give and bequeath the slave Stichus to Titius, and I give and bequeath the same slave to Seius"; the shares in the slave are created by concurrence. If, however, one of the parties did not accept, his share accrued to the others under the Civil Law, but since the passage of the Lex Papia Poppæa the share of the one who did not accept lapses.
(13) When the same thing is bequeathed to two persons by condemnation, if this is done conjointly a share is due to each, and by the Civil Law, the share of the party who did not accept remained in the estate, but now it lapses; and if it was separately bequeathed all of it is due to each of the legatees.
(14) Where the option of a legacy is left by claim the legatee is given his choice as follows: "Select a slave," "Choose a slave," and the same rule applies if the right of selection is tacitly bequeathed in the following manner: "I give and bequeath a slave to Titius." If, however, the bequest was made by condemnation, the following terms are employed: "Let my heir be condemned to give a slave to Titius"; and the heir has the option to give any slave he wishes.
(15) A legacy cannot be bequeathed before the appointment of an heir, as the force and effect of a will begin with the designation of the heir.
(16) A legacy cannot be bequeathed after the death of the heir, lest it may be considered that the heir was charged with it, which is not permitted by the rule of the Civil Law. A legacy may, however, be bequeathed at the moment of the death of the heir, as for instance: "When my heir dies."
(17) A legacy cannot be bequeathed as a penalty. A bequest is made as a penalty when it is left for the purpose of compelling the heir either to do, or to refrain from doing, something which has no reference to the legatee, as, for example, in the following manner: "If you should give your daughter in marriage to Titius, pay ten thousand sesterces to Seius."
(18) A legacy cannot be bequeathed to an uncertain person, for instance: "Let my heir pay so many thousand sesterces to anyone who gives his daughter in marriage to my son." A bequest, however, may be made to an uncertain person who is designated in a certain manner: "Let my heir give such-and-such an article to the one of my present relatives who comes first to my funeral."
(19) A legacy is not rendered void either by an incorrect description, or by a false statement of the reason for which it was made. An incorrect description is as follows: "I give and bequeath to Titius the land which I purchased from him"; when in reality the land was not purchased from Titius. A false reason for making the bequest, is as follows: "I give and bequeath the tract of land to Titius for the reason that he transacted my business for me"; when in fact Titius never transacted his business.
(20) A legatee cannot be charged with the payment of a legacy.
(21) He only can be charged with a legacy who was appointed the heir in the will, and therefore, if a son under paternal control, or a slave is appointed heir, neither his father nor his master can be charged with a legacy.
(22) An heir cannot be charged with a legacy payable to himself.
(23) A legacy may be bequeathed conditionally to a person who is under paternal control, in the hand, or subject to the authority of the appointed heir, in such a way that it shall be required that he be no longer in the power of the heir at the time when the legacy vests.
(24) A legacy cannot be bequeathed conditionally to anyone under whose control, in whose hand, or subject to whose authority, the appointed heir happens to be. This, however, can be done without a condition, provided the heir was appointed by the testator.
(25) Just as separate articles of property can be bequeathed, so also an aggregate amount of the estate of a testator can be left as a legacy, for example, as follows: "Let my heir share or divide my estate with Titius"; in which case it is held that half of the estate has been bequeathed to Titius, and any other portion, as a third, or a fourth, can be left.
(26) By the Civil Law the usufruct of property which can be used and enjoyed without diminishing its substance can be bequeathed; and this applies to the usufruct of one thing as well as of several.
(27) It is provided by a decree of the Senate that if the usufruct of property which consists of its consumption, as for instance, of wine, oil, or wheat, is bequeathed, it should be delivered to the legatee, if security is furnished by him to restore an equal amount of property of the same kind when the usufruct shall have ceased to belong to him.
(28) A legacy may be left to any city belonging to the Empire of the Roman people. This rule was first introduced by the Divine Nerva, and was afterwards, at the instance of the Emperor Hadrian, more specifically established by the Senate.
(29) A legacy which has been bequeathed can also be revoked by the same will, or by a codicil confirmed by the will; provided it is revoked in the same manner in which it was given.
(30) Legacies do not pass to the heir of the legatee unless they have already vested before the legatee died.
(31) Legacies left absolutely, or to be paid at a certain time vested by the ancient law at the death of the testator; but, by the Lex Papia Poppæa, they vest when the will is opened. Those, however, which are left under a condition vest when the condition is fulfilled.
(32) The Lex Falcidia directs that not more than three fourths of an estate shall be bequeathed, and that a fourth of the same shall, by all means, remain in the hands of the heir.
(33) Legacies by condemnation which have been improperly paid cannot be recovered.
(1) A trust which is not left in the terms prescribed as legal but as a request, according to the strict construction of the Civil Law is inoperative, but is granted solely in consideration of the wishes of the party bequeathing it.
(2) The words in common use which create a trust are the following: "I commit to your good faith to give"; "I entreat you to give"; "I desire to be given"; and others of the same description.
(3) It has been decided that, in practice, a trust can even be left by a nod.
(4) Persons can leave a trust who can make a will, even if they may not have done so, for anyone who is about to die intestate can leave a trust.
(5) Any property can be left by a trust which can also be bequeathed by condemnation.
(6) A trust can be left to those persons to whom a legacy can be bequeathed.
(7) Junian Latins can take under a trust, although they cannot take a legacy.
(8) A trust can be created both before the appointment of an heir, and after his death, or even by a codicil which was not confirmed by a will; although a legacy cannot be bequeathed in this manner.
(9) A trust written in the Greek language is also valid, although a legacy written in that language is void.
(10) When a son who is under paternal control or a slave is appointed an heir, or a legacy is bequeathed to him, the father, or master can be charged with the trust, although he cannot be charged with the legacy.
(11) An heir appointed by a will can be asked in a codicil to transfer the entire estate, or a portion of the same to another party, even if the codicil has not been confirmed by the will; although an heir cannot be directly appointed by a codicil, even if it has been confirmed by a will.
(12) Actions to compel the execution of trusts are not brought according to the Formula, as is the case with legacies; but the Consul, or the Prætor who is styled Fideicommissarius, has jurisdiction of them at Rome, and the governors in the provinces.
(13) Trusts cannot be created by way of penalty, or for the benefit of uncertain persons.
(14) He who is asked to transfer an estate to another, where the Falcidian Law does not apply, because, for instance, he is not asked to transfer more than three fourths of the estate, does so under the Trebellian Decree of the Senate, in such a way that rights of action having reference to the estate are granted for and against the party to whom it is transferred.
If, however, the Falcidian Law becomes operative for the reason that the trustee is requested to transfer more than three fourths, or even the entire estate, he does so under the Pegasian Decree of the Senate; so that, after the deduction of the fourth part, actions can still be brought both for, and against him who was appointed heir, and he who received the estate is considered to occupy the position of legatee.
(15) When an estate is transferred under the Pegasian Decree of the Senate, both the advantages and disadvantages are shared between the heir and him to whom the remaining part of it has been transferred, stipulations being interposed, as in the case of those known as "of," and "for a share." Stipulations of this kind are properly so called which are usually entered into between the heir and the legatee of a part of the estate; that is, he with whom the heir shares the estate for the purpose of dividing the profit and loss.
(16) If the heir alleges that the estate will cause him loss, he will be forced by the Prætor to enter upon and transfer it so that actions may be granted both for and against the party who receives it; just as if it had been transferred under the Trebellian Decree of the Senate. It is expressly provided by the Pegasian Decree of the Senate that this course shall be pursued.
(17) If anyone should fraudulently and secretly promise to transfer property under a trust to one who has not the right to receive it, the Senate decreed that he cannot deduct his fourth, or if he has children, that he can not claim under the will any bequests which may have lapsed.
(18) Freedom can be granted by a trust.
(1) The estates of freeborn persons dying intestate belong, in the first place, to their proper heirs, that is children who are under their control and others who occupy the position of children; and if there are no proper heirs, they belong to their nearest blood relatives, that is to brothers and sisters by the same father; and if there are none of these to the remaining nearest agnates, that is, relatives of the male sex descended through males of the same family. For it is provided by the Law of the Twelve Tables that "If a man dies intestate and leaves no proper heir, his nearest agnates shall have his estate."
(1a) If the deceased should not leave an agnate, the same Law of the Twelve Tables calls persons of the same family to the succession in the following words: "If there should be no agnate, persons of the same family shall have the estate." At present, however, this practice no longer prevails.
(2) If only one son survives the deceased together with one or more grandchild by another son who died previously, the estate belongs to all of them, and it is not divided per capita, but per stirpes, that is the only son shall be entitled to half of the estate, and the grandchildren, no matter how many there are, to the other half; for it is just that grandchildren should succeed to the place of their father, and have the share to which he would have been entitled if he had lived.
(3) As long as any hope is entertained that a proper heir may inherit, there is no place for the agnates; as, for instance, where the wife of the deceased is pregnant, or his son is in the hands of the enemy.
(4) The estates of agnates are divided per capita; for example, where there is one son of one brother and two or more children of another brother, and no matter how many of them there may be on both sides, the estate is divided into a corresponding number of shares, so that each may receive one.
(5) Where there are several agnates in the same degree, and some of them refuse to accept the estate, or die before entering on the same, their shares will accrue to those who do enter on it; but if none of the heirs enter on the estate, it will not pass by law to those of the next degree as succession does not apply to estates which are transferred by law.
(6) An estate does not pass by law to females beyond the degree of sisters, and therefore a sister becomes the heir-at-law of her brother or sister. A maternal aunt, however, or the daughter of a brother, or their successors, do not become heirs-at-law.
(7) By the Law of the Twelve Tables, the estate of a mother who died intestate did not belong to her children even if she did not come into the hand of her husband, because women have no proper heirs; but subsequently, on account of an address of the Emperors Antoninus and Commodus delivered in the Senate, it was enacted that her estate shall belong to her children, to the exclusion of blood relatives and other agnates.
By the Law of the Twelve Tables, the estate of a son dying intestate does not belong to his mother, but if she enjoys the privilege derived from having had children, and, being a free woman, has three, or a freedwoman, has four, she becomes his heir under the Tertullian Decree of the Senate; provided, however, that there is no proper heir to her son, and that no one of the proper heirs is called to the possession of the estate by the Prætor, and that the son has no father to whom the estate or the possession of the property actually belongs by law, nor any full brother; if, however, a full sister survives, the estate shall belong to her and her mother.
CONCERNING THE ESTATES AND PROPERTY OF FREEDMEN.
(1) The estate of a freedman dying intestate belongs, in the first place, to his proper heir; then to the party to whom the freedman belongs, for instance, his patron, his patroness, or the children of his patron.
(2) Where there is a patron and the son of another patron, the estate belongs entirely to the patron.
(3) The son of a patron also excludes the grandsons of another patron.
(4) The estate of the deceased belongs to the children of the patron, and is divided per capita and not per stirpes.
(5) The claim of an heir-at-law to an estate which is transmitted in accordance with the Law of the Twelve Tables, is extinguished by the forfeiture of civil rights....1
1 Original manuscript illegible.
CONCERNING THE GRANTING OF POSSESSION.
(1) The possession of an estate is granted either in opposition to the provisions of the will, or in accordance with them, or on the ground of intestacy.
(2) Possession in opposition to the provisions of a will is granted to emancipated children who have been passed over in the will, although, under the law, the estate does not belong to them.
(3) The possession of an estate in opposition to the provisions of the will is granted to both natural and adopted children, but only to natural children who have been emancipated and have not become the members of an adoptive family; and it is granted to adopted children only where they have remained under the control of their adoptive father.
(4) The possession of an estate is granted under the Edict to emancipated children if they are ready to give security to their brothers who have remained under the control of their father, that when the latter dies they will bring the estate into the common mass for division.
(5) Possession of an estate in accordance with the provisions of a will is granted to the heirs therein specified; provided there is no one entitled to take possession contrary to the provisions of the will, or if all of them refuse to demand it.
(6) Even if the will should not be valid under the Civil Law, for instance, because the sale of the estate or the declaration of the heir is lacking, still, if the will is impressed with the seals of not less than seven witnesses who are Roman citizens, possession of the estate will be granted.
(7) The possession of an estate on the ground of intestacy is granted through seven degrees; in the first degree to children, in the second, to heirs-at-law; in the third to the nearest cognates; in the fourth to the family of the patron; in the fifth to the patron, the patroness, and their children, or their ascendants; in the sixth to the husband or wife; in the seventh to the cognates of the manumitted who are entitled under the Lex Furia to receive more than a thousand asses.
If there is no one entitled to the possession of the estate, or if anyone fails to exercise his right, the estate will pass to the people under the Lex Julia having reference to inheritances without ownership.
(8) The possession of an estate is granted not only to children who are under the control of their father at the time of his death, but also to such as have been emancipated, as well as to adopted children; provided they have not also been given in adoption.
(9) The nearest cognates not only acquire possession through persons of the female sex, but also agnates who have forfeited their civil rights, for, although they may have lost the legal right of agnation in this way, still, they continue to be relatives by nature.
(10) The possession of an estate is granted to ascendants and descendants within a year from the time when they were entitled to demand it, and to others within a hundred days.
(11) When all persons belonging to one degree have neglected to demand possession of an estate within the time prescribed by law, those in the next degree are admitted, just as if there had been none to precede them; and this is continued through the seven degrees.
(12) Those to whom possession of an estate is granted by the Edict having reference to successions, are not actually heirs, but through the privilege conferred by the Prætor are placed in the position of heirs. Therefore, whether they sue or are sued, fictitious actions in which they are feigned to be heirs should be brought.
(13) The possession of an estate is granted either effectively or inoperatively; effectively, when he who receives it can actually retain the property; inoperatively, when another can evict the estate under the Civil Law. For instance, if a proper heir is passed over in a will, although possession of the estate may, in accordance with the testamentary provisions, be given to the heirs therein mentioned it will still be inoperative, as the proper heir can legally evict the estate.
CONCERNING THE ESTATES OF FREEDMEN.
(1) The Law of the Twelve Tables bestows the estate of a freedman who is a Roman citizen, upon his patron if the freedman dies intestate without leaving a proper heir; and therefore, whether he dies after having made a will, although he may have no proper heir, or whether he dies intestate, and his proper heir is not a natural one, for example, his wife who is in his hand, or an adopted son, the law gives nothing to the patron. But, by the Edict of the Prætor, if the freedman dies testate and leaves his patron nothing, or less than half of his estate, possession of half of it is granted to the patron in opposition to the provisions of the will, unless the freedman left one of his natural children as his successor; or, if he dies intestate, and leaves a wife who was in his hand, or an adopted son, the possession of half of the estate is also granted to his patron to the exclusion of his proper heirs.
(2) No right to the estate of a freedwoman is granted by the Edict to her patron. Therefore, if she dies testate, the patron will only be entitled to the same right which was granted to him by the will under his authority as guardian; or if the freedwoman dies intestate, her estate will always belong to him, even if she leaves children, for, as they are not the proper heirs of their mother, they do not exclude the patron.
(3) The Lex Papia Poppæa subsequently released freedwomen from guardianship on account of their having four children; and as it gave them the privilege of making a will without the authority of their patron, it provided that the patron should be entitled to a share of the estate of a freedwoman, in proportion to the number of her surviving children.
(4) The male children of a patron have the same rights in the estates of their freedmen as the patron himself has.
(5) Moreover, by the Law of the Twelve Tables, the female descendants of a patron have the same rights as his male descendants; they are, however, not entitled to possession of the estate in opposition to the provisions of the will, or on the ground of intestacy, against proper heirs who are not natural ones. But, if they enjoy the privilege derived from having three children, they also acquire these rights under the Lex Papia Poppæa.
(6) Patronesses formerly had only that right to the estates of their freedmen which was established by the Law of the Twelve Tables; afterwards, however, the Lex Papia Poppæa bestowed upon a freeborn patroness, who had two children, and a freedwoman who had three, the same right that a patron possessed under the Edict.
(7) The same law also granted to a free-born patroness who had three children, the same right which it conferred upon a patron... .1
1 Original manuscript illegible.
END OF THE RULES OF ULPIAN.