THE CIVIL LAW

INCLUDING

The Twelve Tables, The Institutes of Gaius, The Rules of

Ulpian, The Opinions of Paulus, The Enactments

of Justinian, and The Constitutions of Leo:

Translated from the original Latin, edited, and compared with all accessible systems of jurisprudence ancient and modern.

By S. P. SCOTT, A. M.

Author of "History of the Moorish

Empire in Europe," Translator of

the "Visigothic Code"

IN SEVENTEEN VOLUMES VOL. XIII.

CINCINNATI

THE CENTRAL TRUST COMPANY Ejcecutor of the Estate Samuel P. Scott, Deceased

PUBLISHERS

CONTENTS OF VOLUME XIII.

THE CODE OF JUSTINIAN.

SECOND EDITION. (Continued.)

BOOK IV.

TITLE I. PAGE CONCERNING PROPERTY LOANED AND THE OATH ...................... 3

TITLE II. WHERE A CERTAIN THING is DEMANDED ............................. 7

TITLE III. CONCERNING SUFFRAGE ............................................ 11

TITLE IV. CONCERNING THE PROHIBITED SEQUESTRATION OF MONEY .............. 12

TITLE V.

CONCERNING THE RECOVERY OF A DEBT WHICH WAS PAID WITHOUT BEING DUE ........................................................ 12

TITLE VI.

CONCERNING THE ACTION FOR RECOVERY OF PROPERTY GIVEN FOR SOME CONSIDERATION ............................................... 14

TITLE VII.

CONCERNING THE ACTION FOR RECOVERY ON ACCOUNT OF A DISHONORABLE CONSIDERATION ............................................... 17

TITLE Vill. CONCERNING THE ACTION FOR THE RECOVERY OF STOLEN PROPERTY ..... 18

TITLE IX.

CONCERNING THE PERSONAL SUIT FOR RECOVERY UNDER THE LAW, WHERE THERE is No CONSIDERATION, OR WHERE THE CONSIDERATION is UNJUST ..................................................... 19

TITLE X. CONCERNING OBLIGATIONS AND ACTIONS ............................. 19

TITLE XI. ACTIONS SHOULD BE BROUGHT BY HEIRS AND AGAINST HEIRS .......... 22

TITLE XII.

A WIFE CANNOT BE SUED ON ACCOUNT OF HER HUSBAND, OR A HUSBAND ON ACCOUNT OF His WIFE, OR A MOTHER ON ACCOUNT OF HER SON .. 23

TITLE XIII.

A SON CANNOT BE SUED ON ACCOUNT OF His FATHER, OR A FATHER ON ACCOUNT OF His EMANCIPATED SON, OR A FREEDMAN ON ACCOUNT OF His PATRON, OR A SLAVE ON ACCOUNT OF His MASTER ......... 24

A NEW CONSTITUTION OF FREDERICK ............................... 25

TITLE XIV. WHETHER A SLAVE is LIABLE FOR His OWN ACT AFTER His MANUMISSION 26

TITLE XV.

WHEN THE TREASURY, OR A PRIVATE INDIVIDUAL, CAN OR SHOULD SUE DEBTORS OR THEIR DEBTORS ................................... 27

TITLE XVI. CONCERNING HEREDITARY ACTIONS ................................. 28

TITLE XVII.

FOR WHAT AN AMOUNT HEIRS CAN BE SUED ON ACCOUNT OF THE CRIMES OF DECEASED PERSONS ........................................ 29

TITLE XVIII. CONCERNING THE SUM OF MONEY AGREED UPON ..................... 29

TITLE XIX. CONCERNING PROOFS .............................................. 31

TITLE XX. CONCERNING WITNESSES .......................................... 36

TITLE XXI.

CONCERNING THE CONFIDENCE TO BE REPOSED IN WRITTEN INSTRUMENTS, AND THEIR Loss, AND WHEN RECEIPTS AND COUNTER-RECEIPTS SHOULD BE GIVEN, AND CONCERNING WHAT THINGS CAN BE DONE WITHOUT THEIR BEING COMMITTED TO WRITING ................. 41

TITLE XXII.

WHAT HAS ACTUALLY BEEN DONE HAS MORE FORCE THAN WHAT HAS BEEN SIMULATED AND EXPRESSED IN WORDS ..................... 48

TITLE XXIII. CONCERNING LOANS FOR USE ...................................... 52

TITLE XXIV. CONCERNING THE ACTION OF PLEDGE ............................... 52

TITLE XXV. CONCERNING THE ACTIO INSTITORIA AND THE ACTIO EXEKCITORIA ....... 55

TITLE XXVI.

WHEN BUSINESS is SAID TO HAVE BEEN TRANSACTED WITH ONE WHO is UNDER THE CONTROL OF ANOTHER, OR WITH REFERENCE TO PECULIUM; OR WHERE SOMETHING HAS BEEN DONE BY THE ORDER OF ANOTHER; OR WHERE ANYTHING is EMPLOYED FOR THE BENEFIT OF THE PROPERTY OF THE PERSON IN CONTROL ...................... 56

TITLE XXVII. BY MEANS OF WHAT PERSONS PROPERTY CAN BE ACQUIRED BY Us ..... 59

TITLE XXVIII. CONCERNING THE MACEDONIAN DECREE OF THE SENATE ............... 61

TITLE XXIX. CONCERNING THE VELLEIAN DECREE OF THE SENATE .................. 63

TITLE XXX. CONCERNING MONEY WHICH is NOT COUNTED OUT ................... 70

TITLE XXXI. CONCERNING SET-OFF ............................•••••••.••••••••• 75

TITLE XXXII. CONCERNING INTEREST ...........................••••••••••••••••• 78

TITLE XXXIII. CONCERNING MARITIME LOANS ..................................... 84

TITLE XXXIV. CONCERNING THE ACTION ON DEPOSIT, AND THE COUNTER ACTION ...... 85

TITLE XXXV. CONCERNING THE ACTION OF MANDATE, AND THE COUNTER ACTION ..... 87

TITLE XXXVI. CONCERNING A SLAVE WHO HAS DIRECTED A STRANGER TO PURCHASE HIM 92

TITLE XXXVII. CONCERNING THE ACTION OF PARTNERSHIP .......................... 92

TITLE XXXVIII. CONCERNING THE CONTRACT OF PURCHASE AND SALE .................. 94

TITLE XXXIX. CONCERNING THE INHERITANCE OR SALE OF RIGHTS OF ACTION ......... 96

TITLE XL.

WHAT PROPERTY CANNOT BE SOLD, AND WHAT PERSONS ARE FORBIDDEN TO SELL OR PURCHASE IT .....................••••••••••••••••• 98

TITLE XLI. WHAT PROPERTY SHOULD NOT BE EXPORTED .,..................••••• 98

TITLE XLII.

QQ

CONCERNING EUNUCHS ..................••••••••••••••••••••••••••

TITLE XLIII. CONCERNING FATHERS WHO HAVE SOLD THEIR CHILDREN ............. 99

TITLE XLIV. CONCERNING THE RESCISSION OF A SALE .....................••••••• 10°

iiiLlCi A.J-IV.

WHEN IT is PERMITTED TO KEFUSE TO COMPLY WITH A CONTRACT OF SALE 103

TITLE XLVI. WHERE A SALE is MADE ON ACCOUNT OF PUBLIC CONTRIBUTIONS ....... 104

TITLE XLVII.

LAND CANNOT BE PURCHASED WITHOUT THE PAYMENT OF TAXES OR BALANCES WHICH ARE DUE ...................................... 104

TITLE XLVIII. CONCERNING THE RISKS AND ADVANTAGES ATTACHING TO PROPERTY SOLD. 105

TITLE XLIX. CONCERNING THE ACTIONS OF PURCHASE AND SALE ................... 106

TITLE L.

WHERE ANYONE HAS PURCHASED PROPERTY FOR ANOTHER, OR FOR HIMSELF IN THE NAME OF ANOTHER, OR WITH MONEY BELONGING TO ANOTHER .................................................... 109

TITLE LI.

CONCERNING THE PROHIBITED ALIENATION AND HYPOTHECATION OF THE PROPERTY OF OTHERS ......................................... Ill

TITLE LII. CONCERNING THE ALIENATION OF PROPERTY OWNED IN COMMON ....... 112

TITLE LIII.

THOSE WHO HAVE CHARGE OF THE AFFAIRS OF OTHERS ARE NOT FORBIDDEN TO ALIENATE THEIR OWN PROPERTY ..................... 113

TITLE LIV.

CONCERNING AGREEMENTS ENTERED INTO BETWEEN VENDOR AND PURCHASER ..................................................... 114

TITLE LV.

WHERE A SLAVE is SOLD FOR THE PURPOSE OF BEING SENT OUT OF THE COUNTRY .................................................... 115

TITLE LVI.

WHERE A SLAVE HAS BEEN SOLD ON CONDITION THAT HE SHOULD NOT BE PROSTITUTED ............................................. 116

TITLE LVII.

WHERE A SLAVE HAS BEEN ALIENATED UNDER THE CONDITION THAT HE WILL OR WILL NOT BE MANUMITTED ........................... 117

TITLE LVIII. CONCERNING J^DILIAN ACTIONS .................................... 119

TITLE LIX.

CONCERNING MONOPOLIES, UNLAWFUL AGREEMENTS OF MERCHANTS, THE ARTIFICERS OR CONTRACTORS, AND THE ILLEGAL AND PROHIBITED PRACTICES OF BATH PROPRIETORS .............................. 120

TITLE LX. CONCERNING FAIRS AND MARKETS .................................. 122

TITLE LXI.

CONCERNING DUTIES ON MERCHANDISE, AND OFFENCES TO WHICH THEY ARE SUBJECT ................................................ 122

TITLE LXII. NEW DUTIES ON MERCHANDISE CANNOT BE ESTABLISHED ............. 124

TITLE LXIII. CONCERNING COMMERCE AND MERCHANTS ........................... 125

TITLE LXIV.

CONCERNING THE EXCHANGE OF PROPERTY AND THE ACTIO PR^ESCRIPTIS VERBIS ...................................................... 127

TITLE LXV. CONCERNING LEASING AND HIRING ................................. 128

TITLE LXVI. CONCERNING THE LAW OF EMPHYTEUSIS ............................ 134

BOOK V.

TITLE I. CONCERNING BETROTHALS, BETROTHAL PLEDGES, AND MARRIAGE BROKERS. 137

TITLE II.

WHERE THE GOVERNOR OF A PROVINCE OR ANY OF His SUBORDINATES GIVE BETROTHAL PLEDGES .......................................... 139

TITLE III.

CONCERNING ANTENUPTIAL DONATIONS, OR THOSE GIVEN ON ACCOUNT OF MARRIAGE AND BETROTHALS ................................... 139

THE TEXT OF THE CODE ........................................... 145

THE TEXT OF THE CODE ........................................... 145

TITLE IV. CONCERNING MARRIAGE ........................................... 146

THE TEXT OF THE CODE ........................................... 151

THE TEXT OF THE CODE ........................................... 153

TITLE V. CONCERNING MARRIAGES WHICH ARE INCESTUOUS AND VOID ........... 155

TITLE VI.

CONCERNING THE PROHIBITION OF MARRIAGE BETWEEN A FEMALE WARD AND HER GUARDIAN OR CURATOR, OR His SON .................... 158

TITLE VII.

WHERE ANYONE CLOTHED WITH POWER, OR ANY OF His SUBORDINATES, ATTEMPTS TO MARRY A FEMALE SUBJECT TO His JURISDICTION ..... 160

TITLE Vill.

CONCERNING MARRIAGE DEMANDED IN ACCORDANCE WITH THE TERMS OF A EESCRIPT .................................................. 160

TITLE IX. CONCERNING SECOND MARRIAGES ................................... 161

THE TEXT OF THE CODE ........................................... 165

THE TEXT OF THE CODE ........................................... 168

THE TEXT OF THE CODE ........................................... 169

TITLE X.

WHERE A WOMAN, TO WHOM HER HUSBAND LEFT AN USUFRUCT, MARRIES A SECOND TIME ......................................... 171

TITLE XI.

CONCERNING THE PROMISE OF A DOWRY, AND ONE MADE WITHOUT CONSIDERATION .................................................. 172

TITLE XII. CONCERNING THE LAW OF DOWRIES ................................. 174

TITLE XIII.

CONCERNING THE CONSIDERATION OF THE ACTION TO RECOVER THE PROPERTY OF THE WIFE AND THAT BASED ON A STIPULATION, AND CONCERNING THE NATURE OF THE PROPERTY GIVEN AS DOWRY ......... 183

THE TEXT OF THE CODE ........................................... 188

TITLE XIV.

CONCERNING AGREEMENTS MADE WITH REFERENCE TO DOWRIES AND ANTE-NUPTIAL DONATIONS, AS WELL AS SUCH AS RELATE TO THE PRIVATE PROPERTY OF THE WIFE ............................... 189

TITLE XV. CONCERNING DOWRY PROVIDED FOR BUT NOT PAID .................... 193

TITLE XVI.

CONCERNING DONATIONS MADE BETWEEN HUSBAND AND WIFE, AND BY PARENTS TO THEIR CHILDREN, AND CONCERNING RATIFICATION ..... 194

TITLE XVII. CONCERNING REPUDIATION AND THE ABOLITION OF THE ACTION DE MORI-

BUS ......................................................... 200

THE TEXT OF THE CODE ........................................... 203

TITLE XVIII.

IN WHAT WAY THE DOWRY CAN BE RECOVERED WHEN THE MARRIAGE HAS BEEN DISSOLVED ......................................... 207

TITLE XIX. WHERE A DOWRY HAS BEEN PAID DURING MARRIAGE ................. 210

' TITLE XX. NEITHER TRUSTEES NOR MANDATORS FOR DOWRIES SHALL BE APPOINTED. 210

TITLE XXI. CONCERNING PROPERTY SURREPTITIOUSLY REMOVED ................... 211

TITLE XXII.

THE ESTATE OF A HUSBAND CANNOT BE GIVEN TO A WOMAN INSTEAD OF HER DOWRY .............................................. 211

TITLE XXIII. CONCERNING DOTAL LANDS ........................................ 212

TITLE XXIV.

WITH WHOM CHILDREN SHOULD RESIDE OR BE BROUGHT UP, WHEN A DIVORCE HAS TAKEN PLACE ................................... 212

TITLE XXV.

CONCERNING THE SUPPORT OF CHILDREN AND RELATIVES IN THE ASCENDING LINE .................................................... 213

TITLE XXVI. CONCERNING CONCUBINES ......................................... 213

TITLE XXVII.

CONCERNING NATURAL CHILDREN AND THEIR MOTHERS, AND FOR WHAT REASONS THEY BECOME LEGITIMATE ........................... 214

TITLE XXVIII. CONCERNING TESTAMENTARY GUARDIANSHIP ......................... 224

TITLE XXIX. CONCERNING THE CONFIRMATION OF A GUARDIAN .................... 226

TITLE XXX. CONCERNING LEGAL GUARDIANSHIPS ................................ 227

TITLE XXXI. CONCERNING THOSE WHO DEMAND GUARDIANS OR CURATORS ........... 228

TITLE XXXII.

WHERE A PETITION MUST BE MADE FOR THE APPOINTMENT OF GUARDIANS OR CURATORS ................................................ 230

TITLE XXXIII.

CONCERNING THE GUARDIANS AND CURATORS OF ILLUSTRIOUS OR DISTINGUISHED PERSONS ............................................ 231

TITLE XXXIV.

WHO CAN APPOINT GUARDIANS AND CURATORS AND WHO CANNOT BE APPOINTED .................................................. 232

TITLE XXXV. WHEN A WOMAN CAN DISCHARGE THE DUTIES OF GUARDIANSHIP ....... 235

TITLE XXXVI.

IN CASES WHERE A MINOR ALREADY HAS A GUARDIAN OR CURATOR, ANOTHER GUARDIAN OR CURATOR CAN BE APPOINTED ............... 236

TITLE XXXVII. PAGE

CONCERNING THE ADMINISTRATION OF GUARDIANS AND CURATORS, AND OF MONEY BELONGING TO THE WARDS WHICH HAS EITHER BEEN LENT AT INTEREST, OR DEPOSITED .............................. 238

TITLE XXXVIII. CONCERNING THE LIABILITIES OF GUARDIANS AND CURATORS ........... 246

TITLE XXXIX.

WHEN MINORS CAN SUE OR BE SUED ON ACCOUNT OF THE ACTS OF THEIR GUARDIANS OR CURATORS ...................................... 248

TITLE XL.

WHERE THERE ARE SEVERAL GUARDIANS OR CURATORS, ALL OR ONE OF THEM CAN SUE OF BE SUED IN THE NAME OF THE MINOR ........ 248

TITLE XLI.

NEITHER A GUARDIAN NOR A CURATOR SHALL ACT AS A COLLECTOR OF TAXES ...................................................... 249

TITLE XLII.

CONCERNING THE GUARDIAN OR CURATOR WHO DOES NOT FURNISH SECURITY .................................................... 249

TITLE XLIII. CONCERNING SUSPECTED GUARDIANS AND CURATORS ................... 251

TITLE XLIV. CONCERNING A GUARDIAN OR CURATOR APPOINTED TO CONDUCT LITIGATION. 252

TITLE XLV.

CONCERNING ONE WHO TRANSACTS BUSINESS IN THE PLACE OF A GUARDIAN ................................................... 254

TITLE XLVI. WHERE A MOTHER PROMISES INDEMNITY ............................ 254

TITLE XLVII. WHERE A GUARDIAN is APPOINTED AGAINST THE WISHES OF THE MOTHER. 255

TITLE XLVIII.

A GUARDIAN SHOULD ASSIST IN THE TRIAL OF A CASE OF His WARD AFTER THE LATTER EEACHES PUBERTY ................................ 255

TITLE XLIX. WHERE MINORS SHOULD BE BROUGHT UP ........................... 255

TITLE L. CONCERNING THE SUPPORT TO BE FURNISHED TO A WARD .............. 256

TITLE LI. THE DECISION OF GUARDIANSHIP ................................... 256

TITLE LII.

CONCERNING THE DIVISION OF GUARDIANSHIP, AND FOR WHAT PORTION OF THE SAME EACH GUARDIAN is LIABLE ....................... 260

TITLE LIII. CONCERNING THE OATH TO BE TAKEN DURING LITIGATION ............ 261

TITLE LIV. CONCERNING THE HEIRS OF GUARDIANS OR CURATORS ................. 262

TITLE LV. WHEN A GUARDIAN OR A CURATOR DOES NOT ACT ................... 263

TITLE LVI. CONCERNING INTEREST BELONGING TO WARDS ........................ 264

TITLE LVII. CONCERNING THE SURETIES OR GUARDIANS AND CURATORS ............. 264

TITLE LVIII. CONCERNING THE COUNTER ACTION OF GUARDIANSHIP ................ 265

TITLE LIX.

CONCERNING THE AUTHORITY WHICH SHOULD BE GRANTED BY A GUARDIAN OR CURATOR ............................................. 266

TITLE LX.

WHEN GUARDIANS OR CURATORS CEASE TO DISCHARGE THE DUTIES OF THEIR OFFICE ............................................... 267

TITLE LXI.

CONCERNING THE APPOINTMENT OF AN AGENT BY A GUARDIAN OR CURATOR .................................................... 268

TITLE LXII.

CONCERNING THE EXCUSES OF GUARDIANS AND CURATORS AND WHEN THEY MAY BE OFFERED ...................................... 268

TITLE LXIII.

WHERE A GUARDIAN OR CURATOR HAS BEEN EXCUSED BY MEANS OF FALSE ALLEGATIONS ................................................ 273

TITLE LXIV. WHERE A GUARDIAN OR CURATOR is ABSENT ON BUSINESS FOR THE STATE . 274

TITLE LXV. CONCERNING THE EXCUSES OF VETERANS ............................ 274

TITLE LXVI.

CONCERNING THOSE WHO ARE EXCUSED ON ACCOUNT OF THE NUMBER OF THEIR CHILDREN ............................................. 275

TITLE LXVII. CONCERNING THOSE WHO ARE EXCUSED ON ACCOUNT OF ILLNESS ....... 275

TITLE LXVIII. WHO CAN BE EXCUSED ON ACCOUNT OF AGE ......................... 275

TITLE LXIX. WHO CAN BE EXCUSED ON ACCOUNT OF THE NUMBER OF GUARDIANSHIPS. 275

TITLE LXX.

CONCERNING THE CURATOR OF AN INSANE PERSON OR A SPENDTHRIFT ... 276 THE TEXT OF THE CODE ........................................... 279

TITLE LXXI.

LANDS AND OTHER PROPERTY BELONGING TO MINORS SHALL NOT BE ALIENATED OR ENCUMBERED WITHOUT A DECREE ................. 281

TITLE LXXII. WHEN THERE is No NEED OF A DECREE ............................. 284

TITLE LXXIII.

WHERE ANYONE, NOT BEING AWARE THAT PROPERTY BELONGS TO A MINOR, PURCHASES IT WITHOUT A DECREE ...................... 285

TITLE LXXIV.

WHERE A MINOR, AFTER ATTAINING His MAJORITY, EATIFIES AN ALIENATION MADE WITHOUT A DECREE ................................ 286

TITLE LXXV.

CONCERNING LEGAL PROCEEDINGS TO BE INSTITUTED AGAINST MAGISTRATES .......................................-••••-•..•••••• 287

BOOK VI.

TITLE I.

CONCERNING FUGITIVE AND MUNICIPAL SLAVES, FREEDMEN, AND ARTISANS ASSIGNED TO DIFFERENT WORKS WHO BELONG TO PRIVATE INDIVIDUALS OR TO THE STATE ........................................ 289

TITLE II. CONCERNING THEFTS AND THE OFFENCE OF CORRUPTING A SLAVE ...... 291

NEW CONSTITUTION OF THE EMPEROR FREDERICK .................... 295

TITLE III. CONCERNING THE SERVICES OF FREEDMEN ........................... 299

TITLE IV.

CONCERNING THE PROPERTY OF FREEDMEN AND THE EIGHTS OF PATRONAGE ......................................................... 302

TITLE V.

WHERE AN ALIENATION HAS BEEN MADE BY FREEDMEN IN ORDER TO DEFRAUD THEIR PATRON ...................................... 303

TITLE VI. CONCERNING THE DEFERENCE TO BE SHOWN TO A PATRON ............. 303

TITLE VII. CONCERNING FREEDMEN AND THEIR CHILDREN ...................... 305

TITLE Vill,

CONCERNING THE RIGHT TO WEAR GOLD RINGS, AND THE RESTITUTION OF BIRTH ................................................... 306

TITLE IX.

WHO CAN BE ADMITTED TO THE PRAETORIAN POSSESSION OF PROPERTY AND WITHIN WHAT TIME THIS SHOULD TAKE PLACE ............ 306

TITLE X.

WHEN THE SHARES OF AN ESTATE TO WHICH THOSE WHO Do NOT DEMAND THEM ARE ENTITLED ACCRUE TO OTHERS, WHO ASK POSSESSION OF THE SAME ........................................ 308

TITLE XI.

CONCERNING THE PRAETORIAN POSSESSION OF PROPERTY IN ACCORDANCE WITH THE PROVISIONS OF THE WILL ........................... 308

TITLE XII.

CONCERNING THE POSSESSION OF AN ESTATE IN OPPOSITION TO THE PROVISIONS OF THE WILL WHICH .THE PRAETOR PROMISES TO CHILDREN .. 309

TITLE XIII.

CONCERNING PRAETORIAN POSSESSION OF THE ESTATE OF A FREEDMAN CONTRARY TO THE PROVISIONS OF THE WILL GRANTED TO His PATRONS OR THEIR CHILDREN .......................................... 309

TITLE XIV. CONCERNING THE PROCEEDING UNDE LIBERI ......................... 310

TITLE XV. CONCERNING THE PROCEEDINGS UNDE LEGITIMI AND UNDE COGNATI .... 310

TITLE XVI. CONCERNING THE EDICT REGULATING THE SUCCESSION ................ 311

TITLE XVII. CONCERNING THE CARBONIAN EDICT ................................ 312

TITLE XVIII. CONCERNING THE SUCCESSION UNDE VIR ET UXOR .................... 312

TITLE XIX.

CONCERNING THE REJECTION OF THE POSSESSION OF THE PROPERTY OF AN ESTATE .................................................. 313

TITLE XX. CONCERNING HOTCHPOT ........................................... 313

TITLE XXI. PAGE CONCERNING THE WILL OF A SOLDIER ............................... 321

TITLE XXII. WHO CAN MAKE A WILL AND WHO CANNOT ........................ 325

TITLE XXIII.

CONCERNING WILLS, AND IN WHAT WAY THEY SHOULD BE DRAWN UP. . 329 THE TEXT OF THE CODE ........................................... 335

TITLE XXIV.

CONCERNING THE APPOINTMENT OF HEIRS, AND WHAT PERSONS CANNOT BE APPOINTED HEIRS ......................................... 342

TITLE XXV.

CONCERNING APPOINTMENTS, SUBSTITUTIONS, AND EESTITUTIONS MADE CONDITIONALLY ............................................... 345

TITLE XXVI. CONCERNING PUPILLARY AND OTHER SUBSTITUTIONS .................. 349

THE ENACTMENTS OF JUSTINIAN.

III. THE CODE.

(Continued.)

THE CODE OF OUR LORD THE EMPEROR JUSTINIAN.

SECOND EDITION.

(Continued.)

BOOK IV.

TITLE I. CONCERNING PROPERTY LOANED AND THE OATH.

1. The Emperor Antoninus to Herculianus.

A case which has been decided by the tender of an oath by either the adversary or the judge, with the consent of the parties, or if the oath has been remitted, cannot be revived under the pretext of perjury, unless a special exception is made by this law.

2. The Emperor Alexander to Felix.

The contempt of the obligation of an oath has a sufficient avenger in God. It has been decided that, where anyone has sworn by the Emperor, and has perjured himself in the moment of excitement, he will not be liable to any corporeal penalty, or for the crime of treason, according to the Constitutions of My Divine ancestors.

Given on the sixth of the Kalends of April, under the Consulate of Maximus, Consul for the second time, and Julianus, 224.

3. The Emperors Diocletian and Maximian, and the Csesars, to Sever a.

In bona fide contracts, as well as in other cases, the decision must be made by the judge after proper investigation, by means of an oath in default of evidence.

Given on the tenth of the Kalends of September, during the Consulate of Maximus, Consul for the second time, and Aquilinus, 226.

4. The Same, and the Consuls, to Maxima.

Even if a ward has tendered an oath to his guardian for the purpose of avoiding the action on guardianship, he is not forbidden to subsequently bring the same action.

Given during the Kalends of July, during the Consulate of the same Emperors; the first, Consul for the fourth time, and the second, Consul for the third time, 290.

6. The Same, and the Csesars, to Bessius.

As you allege that the parties agreed that the question of descent and free birth should be decided by an oath, the Governor of the province, in accordance with the decree of the arbitrator, with reference to your agreement, shall decide in favor of the children of your maternal aunt.

Given on the fifth of the Ides of February, during the Consulate of Tiberian and Dio, 291.

7. The Same, and the Czesars, to Eutychianus.

Neither a son, nor anyone else, can, against the consent of the owner of the property, cause her any prejudice either by bringing suit, entering into an agreement, or tendering an oath. Wherefore, if your son has transacted any business with reference to your property, and you have not ratified what he has done, this will be of no disadvantage to you.

Given on the Ides of November, during the Consulate of the abovementioned Emperors, 293.

8. The Same, and the Ctesars, to Alexander.

Whether the oath has been tendered to or by the plaintiff, or has been remitted, an action in factum will lie in his favor; as is the case with one for the execution of a judgment.

Given on the twelfth of the Kalends of May, during the Consulate of the Caasars, 294.

9. The Same, and the Csesars, to Martian.

If the plaintiff has tendered the oath, and there is no evidence that he has done this for the purpose of annoyance, the defendant will be required by the court either to make payment, to be sworn, or to have recourse to the oath of the plaintiff.

Given on the fifth of the Kalends of May, during the above-mentioned Consulate, 299.

10. The Same, and the Csesars, to Protogenes.

In an action of deposit which has been brought with reference to property delivered without any written instrument, the oath can be tendered just as in other bona fide proceedings.

Given on the fifth of the Kalends of December, during the Consulate of the Csesars, 300.

11. The Emperor Justinian to Demosthenes, Prsetorian Prefect.

If anyone should tender the oath, and, before it was taken, should recall it (as, for instance, where he has obtained other evidence), We order that he shall not, under any circumstances, be permitted to have recourse to it a second time; for it is perfectly absurd for him to do so, .when he thought that he could reject it, and then again have recourse to it when he found that his other evidence was worthless; and the judges shall not hear persons who attempt to commit such injustice.

If, however, anyone should tender the oath, and then wish to revoke it, he should be permitted to do so, and to produce other evidence if he so desires; provided, however, that this permission shall only be granted him until the case is decided. After final judgment has been rendered, from which no appeal has been taken, or where it has been confirmed after an appeal, We do not permit the oath to be recalled, and evidence to be introduced by anyone, lest the case having been begun again, after its termination another action may arise.

Given at Chalcedon, on the fifteenth of the Kalends of October, during the Consulate of Decius, 529.

12. The Same to Demosthenes, Prsetorian Prefect.

Generally speaking, everything relating to oaths tendered in litigation either by the judge or by the parties must be definitely settled; for it has already frequently happened that judges impose the oath by rendering a decision, and, as an appeal was not taken, because those who were ordered to be sworn died before this could be done, the evidence in the case was lost; for there is a great deal of difference between the oath of an heir and that of the person from whom he derived his right. Hence, compelled by necessity, and desiring to bring all possible aid to the production of evidence, We issue the following decree. Every oath tendered by either the judges or the parties, in the beginning of the suit, while it is being tried, or at the time when judgment is rendered, shall be taken in the presence of the same judge, without waiting for his final decision, or without apprehension of an appeal.

(1) Where the oath has been tendered by the parties, and approved by the judge, or has been tendered to either party by the judge himself, and he to whom it was tendered for some reason or other hesitates, or whether the party who tenders it does so, he to whom it is tendered shall be compelled to take it. If, however, he should refuse, the oath shall be considered as having been taken, and the case shall be decided without leaving any ground for appeal. For who will tolerate that anyone should have the benefit of an appeal from a decision which he himself was instrumental in having rendered?

(2) If, however, he to whom the oath was tendered either by his adversary, or by the judge, absolutely declines to take it, he shall have the right to refuse. But the judge, if he thinks that the oath ought, by all means, to be taken, can decide the case just as if the party who refused to be sworn had desired that he should do so; and he can examine the other points of the case or all of it, and it shall take its course without being interrupted by any obstacle. He, however, who was not willing to take the oath which was tendered him,-whether he states his reasons for this, or whether he is not heard, shall be entitled to the benefit of an appeal; and if the judge who presides when the appeal was argued should decide that the oath was properly tendered, and was not lawfully refused, the case shall remain unaltered. If, however, he should hold that the oath was not legally tendered, but was properly refused, he will then be permitted

to correct the opinion of the judge which was based, as it were, upon the oath being declined; and the party will in no way be prejudiced, or incur any unjust expense, and the course of the case from beginning to end shall not be interfered with, and shall be impartially weighed in the scales of justice.

(3) Whether the oath has been tendered or refused, the party who tendered it shall not be allowed the benefit of an appeal; as it would be too unjust that he who tendered the oath should be entitled to appeal merely for the reason that the judge granted his request.

(4) We prescribe these rules in this law for persons who are present, but those who are absent should not be neglected; hence, if the party to whom the oath was tendered is not present, the case should be conducted by an attorney, and it is necessary that the principal party should be granted a certain time to appear in court, in order that he may carry out what has been decided with reference to the oath; or if the judge should think it best, this can be done in the province where the aforesaid party lives, under the evidence of the plaintiff that the oath has either been tendered by him, or to him, or has been refused, so that the case may be definitely decided, no matter what course has been pursued.

Permission should also be given to the adverse party, either in his own proper person, or by his attorney, to be present when the formalities to be observed by the litigant to be sworn are complied with; or if he should prefer to do neither, and, on the other hand, it is established by documentary evidence that the oath was taken, tendered, or refused, it is the duty of the judge to determine by whom the expenses of a proceeding of this kind should be paid, whether by both parties or only by one of them. No obstacle should arise for the decision of cases in a proceeding of this kind, but the other points or questions of the case must be examined by the judge, and after the documents concerning the oath have been placed in his hands, he must return to this subject, and, having disposed of it, pass to other matters. All other regulations, which have herein been established with regard to parties who are present, must also be observed in the case of those who are absent.

(5) We decree that in every instance in which the oath is taken, the judicial rules having reference to the rank of a person must be obeyed, and the oath shall be taken either before the judge himself, or in the house of the party who is sworn, or upon the Holy Scriptures, or in the Churches.

(6) In like manner, We direct that the rules relating to the oath of calumny, or of the re-tender of the oath which have been provided by the laws introduced either by Ourselves or Our predecessors, shall remain in full force; for these have been promulgated, not with view to abrogating the ancient laws in any way, but that whatever may seem to be lacking to them may be supplied.

Given on the third of the Kalends of November, during the Consulate of Decius.

13. The Same to John, Prsetorian Prefect.

Where anyone demands a legacy or a trust as having been left to him, and this does not appear by the will, the oath should be tendered to him by the heir, and he should swear that the legacy or trust has been bequeathed to him; and if he should obtain what he demanded under the will, and it should afterwards become clear that nothing was left him, the question was raised by the ancient authorities whether what was established by the oath should stand, or whether the party should restore what he had received; or whether if, in fact, the legacy or the trust had been left to him, We should give the heir permission to deduct the Falcidian portion, where there was ground for doing so.

The better opinion seems to Us to be that, in the first place, the legacy or the trust ought to be recovered from him, and that he should obtain no benefit from this act of perjury. Ifr however, what he swore to was found to be true, the Falcidian fourth could be reserved if there was good reason for it, in order that no one might by Our laws be afforded an opportunity to obtain an infamous profit as the result of his own crime.

Given at Constantinople, on the fifteenth of the Kalends of November, after the Consulate of Lampadius and Orestes, 532.

TITLE II.

WHERE A CERTAIN THING is DEMANDED.

1. The Emperors Severus and Antoninus to Modestinus.

You do not ask what is just or customary when you request that you and your brother, who is your co-heir, shall be permitted to pay the debts of your father, not in proportion to your shares of the estate, but in accordance with the appraisement of the property left as preferred legacies; for it is a well-settled rule of law that the charges of an estate must be borne by the testamentary heirs in proportion to their hereditary shares, and not with reference to the benefit received. You, yourself, do not appear to be ignorant of this, as. you have paid the creditors in proportion to your share of the estate in accordance with the rule of ancient law.

Given on the Kalends of July, during the Consulate of Chilo and Libo, 205.

2. The Emperor Antoninus to Hermogenes.

Although Asclepiades lent your money in his own name, having stipulated, however, that it should be paid to himself, you can by an action of mandate compel him to assign to you the right of action to enable you to recover it.

Given on the seventh of the Kalends of May, during the Consulate of Messala and Sabinus, 215.

3. The Emperor Gordian to Sempronius.

It has frequently been stated in rescripts that those who hold office in provinces cannot either themselves, or through persons substituted by them, lend money at interest during their terms of office.

Given on the eighth of the Kalends of September, during the Consulate of Gordian and Aviola, 240.

4. The Emperor Philip and the Caesar Philip, to Maximus.

If you have lent the money of anyone who is absent at interest, in his own name, and he disapproves of the transaction, you can bring the action of mandate, and the Governor of the province, upon your application, will give you his assistance. Likewise, if he should perceive that the mandate has ceased to have effect, he will not, on this account, refuse you an equitable action against the debtor.

Given on the fifteenth of the Kalends of March, during the Consulate of Prassens and Albinus, 247.

5. The Emperors Diocletian and Maximian, and the Csesars, to Aristodemus and Proculus.

If you did not accept the entire amount of the loan, or did not voluntarily bind yourself to your creditor by a stipulation, or you assumed the obligation by appearing as surety for the principal debtor, although the money may have been paid only to one person, you will have no reason to fear that the creditor can sue you for money which he lent to another, if you prove that it has not been counted out to you within the time prescribed by law. And you will have still less cause for apprehension, if, instead of money, the transaction had reference to the delivery of oil, where there was no stipulation that it should be returned; and when a controversy arises on this point, he who has actually received the money will be liable; but it is clear that, in accordance with the terms of the instrument which refers to the delivery of the oil, nothing is due.

Given on the fifth of the Nones of May, during the above-mentioned Consulate, 293.

6. The Same, and the Csesars, to Nicander.

If a novation should be made with reference to a sum of money due for a certain amount of merchandise, and you stipulate that interest shall be paid by the person against whom you file your petition, even though the statement of the amount of the merchandise due may be false, still, as the substance of the obligation is not wanting, there is no reason why interest should not be claimed in compliance with the terms of the contract. If, however, it had been agreed without a stipulation that only the money which was borrowed should be paid with interest, the false instruments would be considered as not having been drawn up; for an agreement of this kind cannot alter the preceding obligation.

Given on the fifteenth of the Kalends of December, under the abovementioned Consulate, 293.

7. The Same, and the Csesars, to Pactumeia.

The origin of money which is loaned should not be considered, but only whether the person who made the contract counted it out to the one to whom it belonged, is required in obligations of this kind.

Given on the fifth of the Nones of October, under the above-mentioned Consulate, 293.

8. The Same, and the Csesars, to Proculus.

If, instead of the loan of money which you requested from your creditor, you received silver, beasts of burden, or any other kind of property appraised by mutual consent, and you gave him gold in pledge, although you may have promised by a stipulation to pay him interest above one per cent a month, still, only the principal which is mentioned in the agreement of the parties, and the legal rate of interest can be claimed. You cannot, however, obtain any benefit on the ground that the pledge which you gave is of inferior value, as you allege, in order to avoid payment of the full amount which you received.

9. The Same, and the Caesars, to Alexander.

As you state in your petition that, while in Gaul, you, together with Syntrophus, lent a certain weight of gold and a certain sum of money to someone to be paid at Rome, if you apply to a competent judge and he decides that there are two principal debtors under a stipulation, or that you are entitled to the action for the full amount, or that you can collect from the heirs of Syntrophus, he shall order the entire debt, or, on the other hand, what you alone have paid, to be refunded to you.

Given on the fifteenth of the Kalends of January, during the abovementioned Consulate, 293.

10. The Same, and the Csesars, to Crispinus.

Payment should not be opposed because the evidence of the indebtedness of several persons is contained in one and the same instrument; for if you have stipulated, and the other parties have agreed that, instead of the money which you have loaned, wine shall be given you, the change of mind of the others cannot annul the contract which has been legally made.

Given on the second of the Nones of February, during the abovementioned Consulate, 293.

11. The Same, and the Csesars, to Maximian.

A fire does not release a debtor from the payment of his obligation. Given on the second of the Ides of February, under the abovementioned Consulate, 293.

12. The Same, and the Csesars, to Theophanius.

If, together with lo, you have borrowed money in connection with' your common business, you will not be liable for the entire amount

of the debt, either on account of the property, or by reason of the formula used in the contract; and even though afterwards you may have paid the entire amount, you will have a right of action against lo for the recovery of your share of the debt before a competent judge. Given on the fifteenth of the Kalends of September, during the Consulate of the Caesars, 300.

13. The Same, and the Cassars, to Pronto.

He who has borrowed a sum of money will be liable to his creditor, even though it is to be used for the business of another, if the creditor, at the time when he lent it, did not have in view the person for the benefit of whose affairs it was obtained.

Given at Nicomedia, on the seventeenth of the Kalends of November, during the Consulate of the Caesars, 300.

14. The Same, and the Cassars, to Hadrian.

A creditor who lent money to others did not render you liable, unless you signed a written contract evidencing the loan.

Given during the Consulate of the above-mentioned Emperors, without any date.

15. The Same, and the Cassars, to Charidemus.

You ask for something which is plainly contrary to law, when you demand that creditors shall not proceed against you who borrowed the money, but against the heirs of the person to whom you lent it.

Given on the fifth of the Kalends of December, under the Consulate of the Caesars.

16. The Emperors Honorius and Theodosius to Theodore, Praetorian Prefect.

Anyone who lends money at interest to a judge shall, if he resides in his jurisdiction, be considered as the purchaser of the laws of the province; or, if anyone should corruptly pay someone who is his fellow-candidate for an office, he shall, along with the judge, be condemned to the penalty of exile.

Given on the seventeenth of the Kalends of November, during the Consulate of Bassus and Philip, 408.

17. The Emperor Justinian to Menna, Praetorian Prefect.

We have considered that the following provisions with reference to written instruments should be enacted for the common welfare; namely, that when anyone desires to borrow more than fifty pounds of gold, or to receive security for a debt, and the sum exceeds that above-mentioned, he is hereby notified that the instrument evidencing the debt shall not be recognized either by the debtor or the creditor, unless the said instrument contains the signature of three witnesses of established reputation. For if any written instrument executed in violation of this rule and calling for the payment of a sum in gold exceeding that above-mentioned is introduced, it shall, under no circumstances, be admitted by the judge.

This rule shall be applicable to future loans and payments of debts. Given at Constantinople, on the tenth of the Kalends of June, during the second Consulate of Our Lord Justinian, 528.

Extract from Novel 73, Chapter I. Latin Text.

By a new law, however, five witnesses are necessary, if the contract is in writing, and was made by a person who was illiterate, and who resided in the city, if the debt was for more than a pound of gold. When anyone desires to make a verbal contract, it is evident that he can do so either by making use of witnesses, or by taking the oath; and in case an action should be brought, the plaintiff must produce the witnesses, and can either be compelled to take the oath himself or to tender it, as the judge may determine.

The laws relating to contracts made in the country, which have been, up to this time, valid, are hereby confirmed.

TITLE III.

CONCERNING SUFFRAGE.

1. The Emperors Theodosius, Arcadius, and Honorius to Rufinus, Prastorian Prefect.

If persons desiring to obtain what they seek have requested anyone to vote for them, and have bound themselves to give him something in return, they must keep their promises, and carry out what they voluntarily agreed to do. If they should, under any pretext, delay to do so, they shall be compelled to pay what is due.

(1) If any gold, silver, or other movable property should be given on this account, delivery alone will be sufficient, and the contract shall remain forever valid; for when the delivery of movable property is made, it is done with good faith, and for a consideration.

(2) If the contract includes the delivery of a rustic or urban estate, an instrument in writing should be drawn up showing that the property has been transferred to another, actual delivery should follow, and the instrument show that the transaction was complete; for otherwise the property cannot pass to the new owner, or the old one be divested of his title.

(3) If the person who has been asked to give his vote should seize the property agreed upon as compensation, his rashness and violence shall be restrained, and possession of the property shall be restored to its former owner, and he who did not hesitate to seize what he ought to have demanded shall be excluded from obtaining it by law.

Given at Constantinople, on the third of the Nones of March, dur-, ing the Consulate of Arcadius, Consul for the third time, and Honorius, Consul for the second time, 394.

TITLE IV. CONCERNING THE PROHIBITED SEQUESTRATION OF MONEY.

1. The Emperors Honorius and Theodosius to John, Praetorian Prefect.

Whenever money is demanded by virtue of some contract, necessity for its sequestration does not exist; for it is necessary for the existence of the debt to be first proved, and then the debtor be compelled to make payment. It is required, not so much by the rule of law as by equity itself, that the creditor should produce the evidence of the debt, and, bringing suit for the money, establish the liability of the debtor.

Given at Ravenna, on the sixth of the Ides of July, during the Consulate of Honorius, Consul for the thirteenth time, and Theodosius, Consul for the tenth time, 422.

TITLE V.

CONCERNING THE RECOVERY OF A DEBT WHICH WAS PAID WITHOUT BEING DUE.

1. The Emperor Antoninus to Mutianus.

There is no doubt that money which has been paid through mistake, and not by virtue of a judgment, can legally be recovered by a personal action. Therefore if you can prove that your father, whose heir you became, paid his creditor more than he owed him, you can recover the amount of the excess. You will, however, in vain demand the interest on this sum, as by the personal action only that amount can be recovered which was paid when it was not due.

Given on the third of the Kalends of August, during the Consulate of Antoninus, Consul for the fourth time, and Balbinus, 223.

2. The Same to Secundina.

Where, without any arrangement having been made with reference to it, you have been delegated to promise the creditor of another money which you do not owe, you will have the right to bring a personal action against the person who delegated you.

Given on the fourteenth of the Kalends of January, during the Consulate of Antoninus, Consul for the fourth time, and Balbinus, 293.

3. The Emperors Diocletian and Maximian, and the Csesars, to Pamphilus.

As a sum of money which was not due, and which has been paid through ignorance can be recovered, an action on a written contract will be much more available for the recovery of money not owing, or an exception on the ground of bad faith can be pleaded against the plaintiff.

Given on the third of the Nones of April, at Byzantium, during the above-mentioned Consulate, 293.

4. The Same, and the Cassars, to Heraclius.

It is a positive rule of law that sums of money which are liable to increase through denial in litigation cannot be recovered, even if, when not due, they have been paid by someone ignorant of the fact. It is, however, established that there will not be ground for a personal action for recovery, if a bond for the payment of money not due has been given.

Given at Byzantium, on the fifth of the Ides of April, during the above-mentioned Consulate, 293.

5. The Same, and the Csssars, to Attains.

If, having been emancipated by your father, you did not succeed him within the time prescribed by praetorian law, it is certain that you, as the heir of your father, will have a right to recover by a personal action anything which you may have subsequently paid by mistake.

Given on the fourth of the Kalends of May, during the Consulate of the above-mentioned Emperors, 293.

6. The Same, and the Csesars, to Mnasea.

When, through ignorance of fact, you have paid for another a sum of money which was not due, and this has been proved before the Governor of the province, he shall, on the demand of him who paid it, provide for its return to the person on account of whom it was advanced.

Given on the sixth of the Ides of August, during the above-mentioned Consulate, 293.

7. The Same, and the Csesars, to Dionysia.

It is an established rule of law that a trust or a legacy which, through an error of fact, was delivered when it was not due, can be recovered.

Given on the fifth of the Ides of September, during the abovementioned Consulate, 293.

8. The Same, and the C&sars, to Zyparus.

Where anyone has paid a false agent of his creditor, he has a right of recovery against the latter, but not to a release from his obligation.

Given on the fifteenth of the Kalends of November, during the above-mentioned Consulate, 293.

9. The Same, and the Csesars, to Gratiana.

Anyone who knows that payment has been made of a sum which was not due cannot legally recover it. Where, however, property belonging to another has been sold without a mandate, and after it has been evicted either for this reason or for some other defect in the title, the owner indemnifies the purchaser, he cannot allege that the money was not due; as having proved by an act of this kind that he ratified the contract, he shows that what he paid was due.

Given at Nicomedia, on the fourth of the Nones of December, during the Consulate of the Csesars, 294.

10. The Emperor Justinian to Julian, Prtetorian Prefect.

Where anyone promises a slave, who is designated, or a certain sum of solidi, or any other property, and, by delivering either of these, he has the right to be released from his obligation, if he, through ignorance, should deliver both, a doubt arose which could be recovered by the laws, that is to say, whether he could recover the slave or the money, and whether the stipulator or the promisor had the power to make the selection of the property.

Ulpian grants the choice to the person who received both, to return whichever he wishes, and states that both Marcellus and Celsus agree with him. Papinianus, however, gives the right of selection to him who delivered both pieces of property, because, before delivering them, he had the right to deliver whichever he chose; and he quotes the great authority of Salvius Julianus, the interpreter of the Praetorian Edict, in support of his opinion. In deciding the question, We have adopted the view of Julianus and Papinianus that he who had the right to give either of the pieces of property was also entitled to choose which he should receive.

Given at Constantinople, on the Kalends of August, under the fifth Consulate of Lampadius and Orestes, 530.

11. The Same to Julian, Prtetorian Prefect.

A dispute arose among jurists with reference to the hesitation of those who have paid money while uncertain whether or not it was due, and whether they could recover that which they had paid while in doubt. In deciding this question, We decree that all those who have paid while uncertain whether or not they owed the money, or anything else which they gave, should not be denied the right of recovery, and that the presumption of a compromise should not be alleged against them, unless this was specifically established by the adverse party.

Given at Constantinople, on the Kalends of October, under the fifth Consulate of Lampadius and Orestes, 530.

TITLE VI.

CONCERNING THE ACTION FOR RECOVERY OF PROPERTY GIVEN FOR SOME CONSIDERATION.

1. The Emperor Antoninus to Callisthenides.

You state that a sum of money was received by you by way of dowry, under an agreement (as is customary when a marriage contract is entered into) ; and if some obstacle has arisen to prevent the marriage from being celebrated according to law, you can recover the said sum by a personal action, and the agreement which was made should be considered as if it had never been entered into.

Given on the sixth of the Kalends of August, during the Consulate of Lsetus, Consul for the second time, and Cerealis, 216.

2. The Emperor Alexander to Asclepiades.

If, as you state, your father gave your sister certain lands and other property which you have mentioned, under the condition that she should satisfy the creditors, and that, if the condition was not fulfilled, the donation should be void, and as she did not comply with the condition, it is not unjust that the action for recovery of the property donated should be granted you as the heir of your father.

Given on the fourteenth of the Kalends of December, during the Consulate of Albinus and Maximus, 228.

3. The Emperors Valerian and Gallienus to Aurelius and Alexandra.

A donation was made to you under the condition that neither of you should have the power to dispose of his or her share of the estate, and the result of this is, that neither of you can alienate the ownership of your share; and if the condition should not be observed, the donor, or his heir, will be entitled to an action to recover the property.

Given on the Kalends of April, during the Consulate of Valerian, Consul for the fourth time, and Gallienus, Consul for the third time, 258.

4. The So/me, and the Caesar Valerian, to ^Emilia.

If, having actually received a very small sum of money, you acknowledge the receipt of a much larger one, for the reason that your adversary promised you his influence, and as you allege that he did not keep his word, you can, by means of a personal action, be released from the obligation which you contracted, on the ground that you did not receive the expected influence in consideration of which you entered into the agreement.

Given on the Kalends of May, under the Consulate of ^milianus and Bassus, 260.

5. The Emperors Diocletian and Maximian, and the Ciesars, to Martial.

If you appointed a soldier your attorney for the transaction of your business, when this was forbidden by law, and on account of his appointment you paid him a sum of money, a competent judge will see that whatever you have disbursed on this account shall be refunded to you, without the case having been heard.

Given on the tenth of the Kalends of October, during the Consulate of the same Emperors; the first, Consul for the fourth time, and the second, Consul for the third time, 290.

6. The Same, and the Csesars, to Cyrio and Plotio.

You say that your father presented a female slave to the person against whom you have instituted proceedings, and it makes a great

deal of difference whether he made the donation with the intention of giving or of manumitting the girl whom he believed to be a female slave; for when a gift has been perfected it cannot be revoked, and where the intention to do so did not exist, an action for recovery will lie.

Given on the second of the Ides of May, during the above-mentioned Consulate, 293.

7. The Same, and the Csesars, to Gerontius.

If you have given anything to the wife of a person whom you intended by this act of liberality to induce to travel with you, and you did not add any condition of recovery, the gift will remain unimpaired; as it is contrary to law for a perfect donation to be revoked by the indecision of the donor.

Given on the seventh of the Kalends of September, during the Consulate of the above-mentioned Emperors, 293.

8. The Same, and the Csesars, to Flavian.

A rule of law provides that there is ground for a personal action for recovery, when the condition attached to a donation not being impossible, it was not complied with by him who agreed to it; therefore when you gave your property to your betrothed as a token of your liberality, and imposed a certain condition, and she did not comply with it, although she could have done so, you will not be prevented from suing her heirs to recover what you gave her, if you should so desire.

Given on the third of the Ides of February, during the abovementioned Consulate, 293.

9. The Same, and the Csesars, to Eibulus.

If you, being free, have given something in order that your daughters may be manumitted, and proceedings are not instituted for this purpose, you will be entitled to an action for the recovery of what you gave.

If, however, a slave should donate something out of his peculium, to his master, he can have no right of action against him; but if he should appear before the Governor of the province, the latter will, taking into consideration the respect due to the master, exhort him who permitted himself to receive the money in consideration of granting freedom to the slave to abide by his agreement in favor of liberty.

Given on the third of the Ides of February, during the Consulate of the above-mentioned Emperors, 299.

10. The Same, and the Csesars, to Canoniana.

It is certain that you can, by no means, recover money which has been paid by you, if the condition on which it was dependent failed to take place, not through the fault of the person who received it, but because of some accident.

Given at Nicomedia, on the third of the Nones of December, during the Consulate of the Csesars, 300.

11. The Same, and the Caesars, to Stratonica.

It has been established that money paid to an advocate for his services should be refunded, if it is proved that he was to blame for not complying with his contract.

Given on the seventeenth of the Kalends of January, during the Consulate of the Csesars, 300.

TITLE VII.

CONCERNING THE ACTION FOR RECOVERY ON ACCOUNT OF A DISHONORABLE CONSIDERATION.

1. The Emperors Antoninus to Ingemms.

If suit is brought against you on your bond, and you have received no money, and your bond was furnished for an infamous consideration, and one which is prohibited, and this is proved in the presence of the judge having jurisdiction of the case, when this has been accomplished, you will be released from liability.

2. The Same to Longinus.

As you allege that you have transferred your house to your adversary for a dishonorable consideration, and one contrary to the principles of My reign, you will in vain ask that it be restored to you, for in a case of this kind the condition of the possessor is considered to be the better.

Given on the fifteenth of the Kalends of December, during the Consulate of Lsetus, Consul for the second time, and Cerealis, 216.

3. The Emperors Diocletian and Maximian to the Soldier Dizon.

If it is established by indisputable evidence before a competent judge that you have paid a sum of money to the person of whom you complain, in order to avoid military service, you can recover it with his assistance; and he, being mindful of public censure, after the money has been refunded, will not suffer the crime of extortion to remain unpunished.

Given on the third of the Kalends of August, during the Consulate of the above-mentioned Emperors; the first, Consul for the fourth time, and the second, Consul for the third time, 290.

4. The Same, and the Ceesars, to Rufinus.

Where a dishonorable consideration is found to have been offered by both parties, although the contract may have been complied with, an action for recovery will be granted only for what was paid, and not for the interest on the same.

Given on the seventh of the Ides of January, during the above mentioned Consulate, 293.

5. The Same, and the Csesars, to Bichoporus.

Since you acknowledge that your wife led the life of a prostitute, you understand that your petition contains the confession that you

have acted as a pander, and therefore no ground will exist for the recovery of a sum of money paid for such an infamous consideration. For although baseness may have existed on both sides, and the money paid cannot be recovered, still, it is established by the authority of the law that actions based upon a stipulation entered into contrary to good morals should be refused.

Given on the Ides of May, during the Consulate of the Caesars, 294.

6. The Same, and the Csesars, to Eutychia.

It is settled that where money has been received by anyone to induce him to restore property which he had stolen, as he only is guilty of dishonorable conduct, he can be compelled to refund it by a personal action.

Given on the fifteenth of the Kalends of June, during the Consulate of the Caesars, 294.

7. The Same, and the Csesars, to Zeno.

It has been decided that he who receives money to induce him to restore cattle which he had driven away must not only refund the money which he acquired by his act, but also the cattle, even though they are said to have died, or to have perished by some accident, as in this case he will be found to be in default.

Given at Nicomedia, on the fifth of the Kalends of December, during the above-mentioned Consulate, 299.

TITLE Vill.

CONCERNING THE ACTION FOR THE RECOVERY OP STOLEN PROPERTY.

1. The Emperors Diocletian and Maximian, and the Csesars, to Hermogenes.

The Governor of the province, being aware of the facts, shall be careful to declare in his decision that each party is liable for the entire amount in an action of theft; but where the action for the recovery of stolen money has been brought, and the judgment has been satisfied by one of the parties, the others are released.

Given on the Kalends of May, under the Consulate of the Caesars, 294.

2. The Same, and the Csesars, to Aristenetus.

It is a well-established rule of law that a sheep thief shall bear the loss of stolen property, if this occurs before his offer to make restitution.

Given on the Kalends of May, under the Consulate of the Caesars, 294.

TITLE IX.

CONCERNING THE PERSONAL SUIT FOR RECOVERY UNDER

THE LAW, WHERE THERE is No CONSIDERATION, OR

WHERE THE CONSIDERATION is UNJUST.

1. The Emperors Diocletian and Maximian, to Ulpiiis.

Although debts cannot be collected before they are due, still, if you are a debtor to the Treasury on account of your administration as the captain of the first company of the triarii, and the Governor of the province finds that your property is exhausted to such an extent that payment of the debt can only be made by the employment of a single sum of money which is due to you, he shall notify your debtor, provided he is solvent, to discharge the debt before the time fixed for doing so, in order that what is due may be paid to the Treasury which, on account of the public requirements, should obtain the preference.

Given on the thirteenth of the Kalends of August, during the Consulate of the Caesars, 294.

2. The Same, and the Csesars, to Sculatius.

No doubt exists as to the law which provides that where the instrument which established the payment of the debt is retained by the creditor, it will be of no advantage to him while it remains in his hands, and therefore it can be recovered by a personal action.

Given on the third of the Nones of April, during the Consulate of the Csesars, 300.

3. The Same, and the Cse.sars, to Galatia.

A possessor in bad faith, who has been defeated in an action where the ownership of property is involved, can be compelled to surrender any existing crops belonging to the property by an action for their recovery, and can be sued in a personal action for those which have been consumed.

Given on the Ides of February, during the Consulate of the Caesars, 300.

4. The Same, and the Caesars, to Alexander.

If the sum which you stated in writing you received as a loan has never been counted out to you, and the time prescribed by law within which you can bring suit has not yet transpired, you can ask the Governor that notice be served for the return of the obligation.

Given on the seventeenth of the Kalends of January, during the Consulate of the Caesars, 300.

TITLE X. CONCERNING OBLIGATIONS AND ACTIONS.

1. The Emperor Gordian to Valeria.

You state that a certain sum of money has been given by you to a person whom you mention, and in return for which he has assigned

you a right of action against the debtor, for whom you paid the money; and, before you brought suit on this account, you allege that the creditor died without leaving an heir. Since this is the case, a praetorian action will lie in your favor.

Given on the fifth of the Kalends of May, during the Consulate of Atticus and Prsetextatus, 243.

2. The Emperors Valerian and Gallienus to Celsus.

It has been frequently stated in rescripts that where claims have been given by way of dowry, although no delegation was previously made, nor any proceedings were subsequently instituted, a praetorian action should be granted the husband, just as in the case of someone who had purchased a note.

Given on the fourteenth of the Kalends of February, during the Consulate of Secularus and Donatus, 255.

3. The Emperors Diocletian and Maximian, and the Csesars, to Rusticianus.

It is extremely inequitable for tenants to be sued on account of the private indebtedness of their lessor, where they pay the rent in accordance with their contracts.

Given on the day before the Kalends of January, during the Consulate of Maximus, Consul for the second time, and Aquilinus, 286.

4. The Same, and the Csesars, to Licinia.

It is no more than just for good faith to be taken into consideration in all contracts.

Given on the third of the Nones of October, during the Consulate of the above-mentioned Emperors, 287.

5. The Same, and the Csesars, to Camerinus and Martian.

As in the beginning everyone has free power to make or not to make contracts, so where an obligation has once been entered into neither party can, without the consent of his adversary, reject it. Wherefore you should understand that when you have once been bound by a voluntary agreement, you can, under no circumstances, repudiate it, without the consent of the other party whom you mention in your petition.

Given at Byzantium, on the Nones of April, under the above-mentioned Consulate, 290.

6. The Same, and the Csesars, to Mauritius.

If your debtor has given you in payment a claim which was due to him, and appointed you his attorney in the matter, demand the pledges which were specially or generally deposited to secure the debt. If, however, they are proved to have been sold by those to whom they were previously pledged, because of their having the preference, understand that you cannot demand them of the purchasers.

Given on the ninth of the Kalends of July, during the Consulate of the above-mentioned Emperors, 293.

7. The Same, and the Csesars, to Dionysius.

If you have purchased a claim from a creditor, demand the pledges which the vendor could have obtained in the presence of the Governor of the province. For if you hold the property which was pledged for the debt of the said person and it is not paid, you are not forbidden by the Common Law to sell the pledges. When, however, those who possessed the pledges having a preferred lien upon them have purchased them from the creditors, or if they are protected by prescription based upon long time, understand that you will not have the power to sell the pledges.

Given on the third of the Kalends of January, during the abovementioned Consulate, 293.

8. The Same, and the Csesars, to Grescentius.

Where, for the purpose of making a donation to a person whom you state that you have loved with the affection of a father, you gave him a sum of money, and he, for the purpose of remunerating your liberality, asks you to accept another sum from his attorney, and before you receive it, he dies, you cannot recover what you have given, for the reason that the donation was perfected, nor can you demand from his attorney what his constituent directed to be given to you but was not yet delivered. If, however, you have lent the amount, but did not stipulate that it should be paid by someone who had been delegated on account of a novation, his heirs will be compelled to pay you.

Given on the thirteenth of the Kalends of February, during the Consulate of the Csesars, 294.

9. The Same, and the Caesars, to Glyco.

Debtors who deny that they owe anything should not be intimidated by armed force, but should be discharged from liability if the plaintiff does not prove his case, or if he should be barred by an exception; but if their indebtedness should be established, and judgment be rendered against them, it is settled that they must be compelled to make payment by the employment of all legal remedies.

Given on the Ides of February, during the Consulate of the Caesars, 294.

10. The Same, and the Csesars, to Fufinus.

The right of personal action against a debtor is not extinguished by the sale of the pledges, but what can be obtained by it shall be credited on the debt, and suit can be brought for the remainder.

Given on the third of the Nones of April, during the Consulate of the Caesars, 294.

11. The Same, and the Csesars, to Paula.

You deceived yourself when you thought you could collect from the owner of the land what you lent to his tenants on their own account, for the presence of his agents does not enable you to hold him liable.

Given on the eighth of the Kalends of August, during the Consulate of the Caesars, 294.

12. The Same, and the Csesars, to Jovinus.

The laws do not suffer children to be given up to the service of creditors because of debts due by their parents.

Given on the thirteenth of the Kalends of November, during the Consulate of the Csesars, 294.

Extract from Novel 134, Chapter VII. Latin Text.

Moreover, the creditor will lose his debt, and will be compelled to pay an equal amount to the child whom he has retained, or to his parents, and he will also be liable to corporeal penalties.

13. The Same, and the Csesars, to Barsumius.

You should compel the person to whom you have lent money to make payment by means of an adequate legal proceeding, for you have no right of action against traders who you alleged exhausted the funds of your debtor by the sale of merchandise to him.

Given on the eleventh of the Kalends of April, during the Consulate of the Caesars, 300.

14. The Same, and the Csesars, to Hermodorus and Nicoma-chus.

You have the choice either to sue the heirs of your debtor by a personal action, or to make use of the Servian Action against him who holds the pledges which were given to you, and which have been sold and delivered to him by the heirs, if he is not protected by prescription based upon long time; or you can bring both actions simultaneously.

Given at Nicomedia, on the fifth of the Kalends of December, during the Consulate of the Csesars, 300.

Extract from, Novel 4, Chapter HI. Latin Text.

At present, however, under the new law, all trustees, mandators, and sureties must first be sued before having recourse to those in possession of the pledges.

TITLE XL

ACTIONS SHOULD BE BROUGHT BY HEIRS AND AGAINST HEIRS.

1. The Emperor Justinian to John, Prsetorian Prefect.

In former times, stipulations, legacies, and other contracts to be executed after death were rejected, but We have permitted this to be done for the common welfare of mankind, as it appeared to be advisable that this rule, which was adopted in ancient times, should be amended by a more humane custom; for the old jurists did not allow actions to be brought by or against heirs in the case of stipulations

or other agreements to be carried out after death. It seems to Us to be necessary to abolish this ancient abuse, and to annul this rule, so that suits and obligations can be brought and enforced by heirs and against heirs, in order that the accomplishment of the wishes of the contracting parties may not be frustrated, through the excessive subtlety of the legal terms employed.

Given at Constantinople, on the fifteenth of the Kalends of November, after the Consulate of Lampadius and Orestes, 531.

TITLE XII.

A WIFE CANNOT BE SUED ON ACCOUNT OF HER HUSBAND,

OR A HUSBAND ON ACCOUNT OF His WIFE, OR A MOTHER

ON ACCOUNT OF HER SON.

1. The Emperors Diocletian and Maximian, and the Csesars, to Asclepiodota.

You will argue in vain with reference to the validity of contracts made by your husband, as it is sufficient for your protection that you made no contract in your own name to prevent your being sued on his account; for, under the terms of the Decree of the Senate, nothing can legally be collected from you, even if you have voluntarily offered yourself as his, surety.

Given on the day before the Ides of April, during the Consulate of Diocletian, Consul for the third time, and Maximian, 287.

2. The Same to Terentia.

The laws forbid that women should be annoyed on account of the faults of their husbands. Hence the Imperial Accountant, where property has been seized by the Treasury and you can prove that it is yours, must obey the public law.

Given on the third of the Nones of September, during the Consulate of Diocletian and Maximian, 287.

3. The Same, and the Csesars, to Carpophorus.

As you allege that you have not given the property in question to your daughter, by way of dowry, but for her support exclusive of the dowry, these lands are not subject to civil or municipal charges of a husband, any more than mothers can be rendered liable for debts due from their sons; as it is settled that a husband cannot be sued for an obligation contracted by his wife, unless he himself became surety for the same, since it is perfectly clear that no one can be liable for the contract of another.

Given on the third of the Ides of September, during the Consulate of the above-mentioned Emperors, 293.

4. The Same, and the Cassars, to Philotera.

As you state that you have been sued on account of the indebtedness of your son for the reason that you have already appeared to

have paid a portion of the same, you have a perfect right to avail yourself of your means before the judge having jurisdiction of the case, so that he may prevent you from being compelled to pay the debts of another.

Given on the tenth of the Kalends of September, during the Consulate of Titian and Nepotian, 301.

Extract from Novel 52, Chapter I. Latin Text.

Anyone who attempts to make use of the property of one person to pay the debts of another, just as if it was pledged for that purpose, shall be compelled to repay fourfold its value, whatever that may be, to "the person who suffered the wrong, and shall lose his right of action to recover the debt for the payment of which he took the property.

TITLE XIII.

A SON CANNOT BE SUED ON ACCOUNT OF His FATHER,

OR A FATHER ON ACCOUNT OP His EMANCIPATED SON, OR

A FREEDMAN ON ACCOUNT OF His PATRON, OR A SLAVE

ON ACCOUNT OF His MASTER.

1. The Emperor Gordian to the Soldier Candidus.

A father cannot be sued on account of the debt of his son who is his own master, where he did not become his surety; nor can he be sued for it when he is under his control, if he made the contract without his consent; nor will he be liable where, contrary to the terms of the Macedonian Decree of the Senate, a larger sum was lent than the value of the peculium. Wherefore, if your father has had money extorted from him by the creditor of your brother, for the payment of a debt for which he was not liable, he can recover it with the aid of the Governor of the province.

Given on the third of the Nones of October, during the Consulate of Pius and Pontianus, 239.

2. The Emperors Diocletian and Maximian to Neotherius and Eutolmiis.

The Governor of the province must provide that you shall not, contrary to law, be annoyed by someone by whom your father, who you allege has emancipated you, has been called to assume a civil office.

Given on the eighth of the Kalends of February, during the Consulate of Maximus, Consul for the second time, and Aquilinus, 286.

3. The Same, and the Csssars, to Theogenes.

Where a son has been appointed a decurion without the consent of his father, it has been very clearly provided by law that his father cannot be annoyed on his account.

Given on the tenth of the Kalends of May, during the Consulate of the Caesars, 294.

4. The Same, and the Ciesars, to Achiva.

It is settled that a son cannot be sued in a personal action on account of the indebtedness of his father, or be liable for his municipal charges if his father is still living.

Given on the twelfth of the Kalends of March, under the Consulate of the Caesars, 300.

5. The Same, and the Ciesars, to Lampetim.

Neither freedmen nor slaves can be sued on account of contracts made by their patrons and masters.

Given on the Ides of April, during the Consulate of the Caesars, 300.

A New Constitution of Frederick.

After a careful investigation and examination made by the bishops, abbots, dukes, and other officials of Our Sacred Palace, We grant the following privilege to all those who journey for the purpose of study, and especially to the professors of Divine and Imperial laws, namely: that they, as well as their messengers, shall remain secure in the places in which they reside. For as they all do good, We think that they are worthy of Our praise and protection at all times, as the entire world is illuminated by their learning, and Our subjects are instructed by them to be obedient to God and Our ministers; and therefore, by means of this special favor, We desire to guard them against all injury. For who is there who would not pity those who, having become exiles through the love of learning, and from being wealthy have become poor, and exhaust their strength, and expose their lives to many dangers, and frequently suffer bodily injury from the vilest of mankind without a cause, which is hard to bear? Therefore We decree by this general law, which shall be valid for all time, that no one shall dare to presume to inflict injury upon students, or cause them any loss on account of the crime or indebtedness of another, in any province whatsoever (which We have ascertained is sometimes done in accordance with an improper custom).

Those who violate this Sacred Constitution, as well as the Governors of the places in which they live, and who neglect to punish them, are hereby notified that they shall be compelled to pay fourfold damages, be branded by the law with infamy, and be forever dismissed from their employments. If, however, anyone should desire to institute legal proceedings against such persons, because of any transaction, this shall be done at the option of the students, either before their master or professor or the bishop of the city, upon whom We have conferred this jurisdiction. Anyone who attempts to bring them before another judge, even if his claim should be perfectly just, shall lose his case.

We order that this law shall be inserted among the Imperial Constitutions under this Title: "A son shall not be sued on account of his father, etc."

Given during the month of November, 1158.

TITLE XIV.

WHETHER A SLAVE is LIABLE FOR His OWN ACT AFTER His MANUMISSION.

1. The Emperors Severus and Antoninus to Juventian.

Although you have made a contract with a slave who is to be free under a condition, you should know that after the condition upon which his liberty depends has been complied with, you will have no right of action against him for what he may have previously done.

Given on the fourth of the Ides of December, during the Consulate of Dexter, Consul for the second time, and Priscus, 197.

2. The Emperor Antoninus to Bexicus.

No action will lie against you in favor of your creditors who lent you money while in slavery, especially as you state that no peculium was bequeathed to you.

Given on the third of the Kalends of September, during the Consulate of Laetus and Cerealis, 216.

3. The Emperor Alexander to Herod.

Where money has been promised to you by your slave, in consideration of your manumitting him, and after you have done so you do not make any stipulation with him, you will be entitled to an action in factum against him.

Given on the Ides of September, during the Consulate of Alexander, 227.

4. The Emperor Gordian to Hiero.

A slave who is said to have stolen a sum of money from your mother cannot be sued for an offence of this kind, although this may have been done at the time that she was in slavery, but having once obtained her freedom, she will be liable to an action of theft; for the injury follows the person.

Given on the Ides of September, during the Consulate of Pius and Pontianus, 239.

5. The Same to Chrestus.

If, as you allege, you cultivated your master's land before you were manumitted by him, and you were afterwards presented with your freedom, but were deprived of your peculium, any property which you may have previously contractd for, or have acquired by your own labor after your manumission, can by no means be taken from you.

Given on the sixteenth of the Kalends of December, during the Consulate of Arian and Pappus, 344.

6. The Emperors Diocletian and Maximian, and the Csesars, to Felicianus.

If those whom you mention in your petition are slaves, dispose of their cases at home, because no action at law can exist between masters and slaves. If, however, they were manumitted after committing

the offence, there is no legal rule which permits suit to be brought by their former masters for anything which had been done by them before they were enfranchised. But where they have committed any illegal act after their manumission, you must prove this before the Governor of the province, and you will obtain a decision in accordance with law.

Given on the second of the Ides of April, at Byzantium, during the Consulate of the above-mentioned Emperors, 287.

TITLE XV.

WHEN THE TREASURY, OR A PRIVATE INDIVIDUAL, CAN OR SHOULD SUE DEBTORS OR THEIR DEBTORS.

1. The Emperors Severus and Antoninus to Valerian.

The property of a guardian, who holds nothing belonging to his ward, cannot be seized on account of the debts of the latter.

Given on the eleventh of the Kalends of June, under the Consulate of Lateranus and Rufinus, 198.

2. The Emperor Antoninus to Marcus.

If, in the case of a judgment against Valens, which you state that you have obtained, nothing can be sold without having recourse to execution; his debtors, having been sued, will be compelled to make payment by the authority of the Governor of the province.

3. The Emperor Gordian to Primanius.

If those persons whom you allege are indebted to the debtors of the Treasury do not deny their liability, what you ask does not seem to be unjust, that is to say, that they be compelled to make payment by the Attorney of the Treasury. When, however, any question arises with reference to this, you yourself will perceive that it should not be permitted.

Given on the sixth of the Kalends of February, during the Consulate of Sabinus and Venustus, 241.

4. The Emperors Diocletian and Maximian, and the Csesars, to Zosimus.

It is a positive rule of law that suit cannot be brought by the Treasury against persons who are indebted to the debtors of the Treasury, unless it is clearly established that the latter are not solvent.

Given on the twelfth of the Kalends of May, during the Consulate of the above-mentioned Emperors, 293.

5. The Same, and the Csesars, to Nanida.

When a claim has been given in satisfaction of a debt, the creditor cannot proceed against the debtors of the person who has made payment in this way, unless he assigns his rights of action; but he can legally avail himself of an equitable action in his own name.

Given on the Kalends of January, under the Consulate of the Caesars, 294.

TITLE XVI. CONCERNING HEREDITARY ACTIONS.

1. The Emperor Gordian to Hermerotiis.

You should demand the money which you say was owing to you from your mother in proportion to the share to which you are entitled from her heirs, who are your co-heirs; but you will not be prevented from attempting to collect what is due to you out of the property encumbered for the debt.

Given on the eleventh of the Kalends of March, during the Consulate of Gordian, Consul for the second time, and Pompeianus, 242.

2. The Emperor Decius to Telemacha.

It has been decided that heirs are liable for hereditary charges in proportion to their shares of the estate, even where the said charges are those of the Treasury, unless property has been pledged or hypothecated, for then the possessor of the encumbered property should be sued.

Given on the fourteenth of the Kalends of November, during the Consulate of .ZEmilianus and Aquilinus, 250.

3. The Emperors Diocletian and Maximian, and the Csesars, to Maxima.

Sue the heir of your former husband for the restoration of your dowry, as you will in vain ask that a personal action be granted you against the debtors of the estate.

Given on the fourteenth of the Kalends of May, during the abovementioned Consulate, 293.

4. The Same, and the Csesars, to Crispus.

It is perfectly clear that payment of the debt cannot be deferred under the pretext that the debtor of the estate is under age, and therefore, as you state that you are his guardian, you should endeavor to have him satisfy his creditors.

Given on'the tenth of the Kalends of December, under the Consulate of the above-mentioned Emperors, 293.

5. The Same, and the Csesars, to Julius.

As you ask in your petition that a debt shall be paid before the estate is entered upon, We order inquiry to be made whether it belongs to you, or not; for if it should be established that you have a right to the estate of your father-in-law, there is no doubt that the claim for the debt is extinguished by merger.

Given on the day before the Nones of March, during the Consulate of the Csesars, 294.

6. The Same, and the Csssars, to Domnus.

If the adult girl (whose guardianship you state that you have administered), and whose curator you now are, is the heir to a third

of her paternal uncle's estate, and has not been forbidden to acquire anything from it, she will be permitted to collect a debt from her coheirs in proportion to two-thirds of the estate, as the claim is not merged except with reference to the share to which she is entitled; for it is against the interest of your ward that you ask that the will be set aside, since the co-heirs bind themselves for payment when they accept the estate. And if, after a division of the property has been made, it should be proved that they are not solvent, the Governor of the province will see that she sustains no loss.

Given on the Kalends of December, during the above-mentioned Consulate, 299.

7. The Same, and the Ctesars, to Apolaustus.

It is settled that the creditors of the estate are not entitled to a personal action against the legatee, as the Law of the Twelve Tables undoubtedly renders the heirs liable to such an action.

Given at Nicomedia, on the sixth of the Ides of December, during the Consulate of the Csesars, 300.

TITLE XVII.

FOR WHAT AN AMOUNT HEIRS CAN BE SUED ON ACCOUNT OF THE CRIMES OF DECEASED PERSONS.

1. The Emperors Diocletian and Maximian, and the Csesars, to Macedonus.

It is an absolute rule of law that where anyone has been guilty of violence, extortion, or any other crime, and then dies after issue has been joined in the case, his heirs will be liable in full; otherwise they can only be sued for what has come into their hands, lest they may profit by the illegal act of another.

Given on the fifth of the Kalends of May, during the Consulate of the Csesars, 294.

TITLE XVIII. CONCERNING THE SUM OF MONEY AGREED UPON.

1. The Emperor Gordian to Felix.

If you have consented to discharge someone else's debt, the action to recover the money which you have promised to pay can not only be brought against you, but also against your heirs, without limitation of time.

Given on the seventh of the Kalends of July, during the Consulate of the Csesars.

Extract from Novel 115, Chapter VI. Latin Text.

Where anyone agrees to pay a sum of money for himself or for some other person, or promises to do so, saying, "I will pay you,"

he will be liable for the amount which he agreed to pay. If, however, he should say, "You shall be paid by me, and by So-and-So and So-and-So," without the consent of the persons whom he mentioned, he will only be liable pro rata for the amount for which he obligated himself. But when making use of the impersonal verb, he says, "It shall be paid," he will not be responsible. If, however, he should say, "You shall be paid either by me, or by So-and-So," and he whom he mentioned does not consent, he alone will be liable in full.

2. The Emperor Justinian to John, Pretoria/n Prefect.

The Actio receptitia, which is founded on formal statements, having fallen into disuse, it seems to Us necessary to extend the application of the Actio pecuniss constitutive. Therefore, as this action for recovery was formerly only available where the property in question could be weighed, counted, or measured, and was not applicable to all cases, but, in certain instances, could only be brought during the term of a year; and as it was doubtful whether it was possible for it to be brought to collect a debt dependent upon a condition, or whose payment was fixed at a certain time, or whether it could be employed merely with reference to a sum unconditionally agreed upon; We direct, by this perfectly clear law, that all persons shall be permitted to contract, not only for property which can be weighed, counted, or measured, but also for every other kind, whether it is movable or immovable, or can move itself, or is established by documents; and, in short, for everything which men can make the subject of a stipulation.

We also direct that the action, in every instance, shall not be limited to a year, but whether the person contracts for himself or someone else, it can be brought for the same period which is permitted in all personal actions, that is to say, during the term of thirty years; and that it shall be lawful to .agree to pay the debt absolutely; or at a certain time; or under some condition; and that it shall have all the force of a stipulation, and still not be deprived in any respect of its natural privileges, but can be brought both by and against heirs, so that the State, in cases of this kind, may not need the aid of the Actio receptitia; but that this action for the recovery of money promised will, by Our Constitution, be sufficient in all respects, and be an inherent part of the same, and that the agreement may take the place of the obligation; while, on the other hand, by means of the ancient Actio receptitia, the debt could be collected, even if it was not due.

It is perfectly absurd and contrary to the practice of Our age, as well as opposed to just laws, to permit property which is not due to be recovered by the Actio receptitia, and to re-establish many suits which will authorize the collection of money which is not owing, and promises for payment to be alternately abrogated and renewed. In order that such a conflict of laws may not be productive of reproach, agreements can only be made for the payment of what is due, and everything relating to the Actio receptitia which has been inserted in the different books of legislators is hereby abolished; and the Actio

pecuniss constitute shall include all cases which can become the subject of a stipulation.

(1) Let no one be surprised that every species of property which We have placed under the head of money can be exacted; for although in the books of the ancient jurists this action was only mentioned with reference to coin, still, not only could money be collected by means of it, but also all property which was susceptible of being weighed, counted, or measured, was included. It is possible for every kind of property to be converted into money; since if a certain house, or a certain field, or a certain slave, or anything else was mentioned in the agreement for payment, what difference is there between these possessions and money itself?

In order, however, to satisfy the subtle distinctions of persons who do not desire the sense but the empty sounds of names to be considered, everything shall be embraced in an action of this description, just as if the contract has been made for the payment of money itself; for the old jurisconsults included all kinds of property under the name of money, and this term is not only frequently met with in the treatises of legal authors, but also in other ancient jurisprudence.

(2) So far as the customs which money-brokers and other business men have constantly observed are concerned, they are hereby sanctioned, and shall remain in full force as observed up to this time.

Given on the tenth of the Kalends of March, after the fifth Consulate of Lampadius and Orestes, 531.

3. The Same to John, Prsetorian Prefect.

It is necessary that the Epistle of the Divine Hadrian, which treats of the division of liability between mandators and trustees, should also apply to those who have conjointly agreed to pay money for others; as the rule of equity ought, by no means, to exclude different forms of the same action.

Given on the Kalends of November, after the fifth Consulate of Lampadius and Orestes, 531.

TITLE XIX. CONCERNING PROOFS.

1. The Emperors Severus and Antoninus to Faustinus.

As a creditor who demands money, which he says he has loaned, is compelled to prove his claim, so, also, a debtor who alleges that he has discharged his obligations must furnish evidence of the fact.

Given on the day before the Kalends of July, during the Consulate of Dexter, Consul for the second time, and Priscus, 197.

2. The Emperor Antoninus to Aulizanus.

Institute proceedings in accordance with law to recover the land which you say is yours, for the-party in possession is not required to

prove that it belongs to him; and if you do not prove your claim, the ownership of the same will remain with him.

Given on the fifteenth of the Kalends of December, during the Consulate of Laetus and Cerealis, 216.

3. The Emperor Alexander to Lsena and Lupus.

You should not be sued for a debt of the colleague of your grandfather, if you can prove that the said colleague was solvent at the time when he withdrew from office.

Given on the fifth of the Kalends of January, during the Consulate of Pompeianus and Pelignus, 232.

4. The Same to Vitus.

The ownership of property must not only be established by the bill of sale, but also by all other lawful evidence.

Given on the Kalends of November, during the Consulate of Alexander, Consul for the third time, and Dio, 230.

5. The Emperor Philip, and the Csesar Philip, to Sertorius.

Private papers, that is to say, instruments executed in the presence of witnesses, or notes, if they are not supported by other testimony, are not alone sufficient as evidence.

Given on the seventh of the Ides of April, during the Consulate of Philip and Titian, 246.

6. The Same, and the C&sars, to Romulus.

It has been frequently stated in rescripts that accounts of a deceased person found among his effects will not alone be sufficient to prove that a sum of money was due to him.

The rule of law is the same where the deceased stated in his last will that he was entitled to a sum of money, or certain other property.

Given on the Ides of March, during the Consulate of Philip and Titian, 246.

Extract from Novel 48, Chapter I. Latin Text.

This rule is especially applicable where the testator was not sworn; otherwise the heirs will be required to comply with his will, or be prevented from enjoying the legacies bequeathed to them, but no loss shall result to the creditors on this account.

7. The Emperor Gallienus to Sabinus.

A pernicious example is offered where faith is given to a private memorandum; for anyone can, by a note of his own, constitute another his debtor. Therefore, neither the Treasury, nor any other person whosoever should introduce private memoranda as evidence of a debt.

Given on the third of the Nones of March, during the Consulate of Gallienus, Consul for the seventh time, and Sabinillus, 267.

8. The Emperors Diocletian and Maximian, and the Caesars, to Publicius and Optatus.

You apprehend in vain that proof will be required from the defendant in the case.

Given the thirteenth of the Kalends of ... during the Consulate of Bassus and Quintian, 289.

9. The Same, and the Cassars, to Marciana.

As you allege that you are less than twenty-five years old, you should appear before the Governor of the province and prove your age.

Given on the Ides of April, during the Consulate of the abovementioned Emperors, 293.

10. The Same, and the C&sars, to Isidor.

Neither the circumstances attending your birth (even though you can prove that you are freeborn), nor the offices which you allege you have held, are sufficient evidence that your daughter was born free; for there is nothing which prevents you from being freeborn, and her from being a slave.

Given on the eighteenth of the Kalends of May, during the abovementioned Consulate, 293.

11. The Same, and the Csssars, to Antonia.

If you are confident that you can show that the heir appointed by your paternal aunt is not entitled to the estate, on account of some defect in the will, or for any other reason, you can institute proceedings with reference to the estate before the Governor of the province.

Given on the fifth of the Kalends of May, at Heraclea, during the Consulate of the Caesars, 294.

12. The Same, and the Csesars, to Chronia.

Nothing is accomplished by means of written instruments, as they are merely evidence of what has been done, and you must establish, by such evidence as you can produce, that the purchase was made by your father, and that he was placed in possession of the property, and paid the price of the same.

Given on the fifth of the Nones of October, during the Consulate of the Caesars, 299.

13. The Same, and the Csesars, to Justin.

Blood relationship is not established by letters, but by the evidence of birth, or the ceremony of adoption; and where for the purpose of dividing an estate an arbiter is demanded by a female slave, against an absent person, whom she alleges is her brother, this does not affect the truth of the matter. Therefore, if you are confident that you can prove that you have sent a letter to the said female slave, as your sister, or if it is shown that an arbiter was demanded for her, as for a co-heir, in a case in partition, the question of brotherhood cannot be disposed of in this way.

Given on the Kalends of December, during the above-mentioned Consulate, 299.

14. The Same, and the Csesars, to Munitiamts.

It is not by mere assertions, nor by a false statement (even though both parties may agree to it), but by conception during lawful marriage, or by the formalities of adoption, that persons can legally be shown to be the sons of their alleged father. Hence, if you are confident that you can establish that the party against whom you have filed your petition is the son of someone else, prove either by yourself or by an attorney that his statement is false.

Given on the Kalends of December, during the Consulate of the above-mentioned Emperors, 299.

15. The Same, and the Csesars, to Antony.

The violence of him who contends that he is the master will in no way avail in placing the burden of proof of his freedom upon the slave. Therefore, when you acknowledge that you have fled from the house of Sever us, and assert that you were in the first place detained by him unjustly and by force, inquiry should be made whether you are in possession of your freedom without having been guilty of fraud; for in this way it will be determined which of you should sustain the burden of proof.

Given on the sixth of the Kalends of January, during the abovementioned Consulate, 299.

16. The Same Emperors and Cassars to Philippa and Sebastiana.

If you are in possession of lands which your emancipated brothers have brought suit to recover, alleging that they were given to them by your common father, the necessity of proving this rests upon them. If they had possession of the said lands on the ground that they had been given to them by your father, and you, having been appointed the co-heirs of your father, demand that they prove that your claim is without foundation, in a controversy of this kind the parties will be compelled to show upon what their title to ownership is based.

Given on the tenth of the Kalends of February, during the abovementioned Consulate, 299.

17. The Same, and the Csssars, to Paulina.

In order to prove that you are freeborn, it is necessary for you to show that your mother had obtained her freedom, and that you were born afterwards; for the fact that no question was raised as to the condition of your brothers will not, In any way, contribute to your defence.

Given on the fifth of the Ides of February, during the Consulate of the above-mentioned Emperors, 299.

18. The Same Emperors and Csesars to Violantilla. You asserted in your petition that the person whom you mentioned caused to be inserted, without your knowledge, that you had given

him the land in question; and if what you have stated is true, the said land cannot belong to him by the title of a donation. Wherefore, having gone before a competent judge, you must prove that your adversary, against your consent, contrived to have inserted in the will that you had transferred this land to him, so that, in accordance with the terms of Our Rescript, you can obtain a decision in your favor.

19. The Same Emperors and Csesars to Menander.

A dilatory exception shall be pleaded in the beginning of an action, and the plaintiff must afterwards establish the proof of his allegations.

Given at Nicomedia, on the thirteenth of the Kalends of April, during the Consulate of the Csesars, 300.

Extract from Novel 90, Chapter IV. Latin Text.

A litigant who has produced witnesses once, twice, or three times, and has discussed their evidence, or has heard it discussed by his adversary, and, by this means, learned what has been testified to, shall not have permission to call new witnesses, even under Our order. If, however, he has not done this, he should be allowed to produce witnesses a fourth time, after having been sworn that he did not suppress or dictate any of the evidence, and that none of his advocates, or anyone acting in his behalf, has done so; and that he has not, either through fraud, evil intent, or artifice, demanded that a fourth production of witnesses be made.

20. The Same, and the Csesars, to Phromina.

If Eutychia, after having suppressed a document evidencing her purchase, demands her freedom from the condition of slavery in which she is, as the burden of proof rests upon the claimant, if her suppression of the document is detected, it will be of no advantage to her; for if she is claimed as a slave, it will not be necessary to furnish evidence of her purchase, but it will be sufficient to prove the theft of the bill of sale.

Given at Nicomedia, on the fourth of the Nones of December, during the Consulate of the Caesars, 300.

21. The Same, and the Csesars, to Crispins.

Those who steal documents belonging to others, upon which the proof of ownership depends, can under no circumstances make use of them; as they would be of no advantage to one who is not mentioned in them, but only to him who is designated therein. Therefore, as it is not forbidden to offer other evidence, establish by legal means that the ownership of the lands in dispute belongs to you; for he wha claims property from a purchaser, alleging that it was bought with his money, is not allowed to prove it. If a fact of this kind should be established, it will, nevertheless, contribute nothing to the validity of his claim.

Given on the sixth of the Ides of December, during the Consulate of the Caesars, 303.

22. The Same, and the Csesars, to Agatkoclea.

It is not sufficient proof of the servitude of Glyco to show that his mother and his brother have been slaves, for the connivance of freeborn persons cannot prejudice their relatives; nor is one of several slaves born of the same mother prohibited from obtaining his freedom.

Given on the ninth of the Kalends of January, during the Consulate of the Csesars.

23. The Same, and the Csesars, to Menelaus.

A plaintiff who alleges that he cannot establish his claim does not compel the defendant to prove the contrary; for, in accordance with the nature of things, the denial of a fact is no evidence.

Given on the eighth of the Kalends of January, during the Consulate of the Csesars, 304.

24. The Emperors Valens, Gratian, and Valentinian to Antony, Praetorian Prefect.

We order all those who allege that papers produced in court are not genuine shall be detained as forgers, and prosecuted for that crime, unless they prove that their assertions are true.

Given on the day before the Ides of January, during the Consulate of Valens, Consul for the fifth time, and Valentinian, 606.

25. The Emperors Gratian, Valentinian, and Theodosius to Florus, Prsstorian Prefect.

All accusers are hereby notified that they cannot bring a criminal charge for anything which has been established by reliable witnesses; or clearly proved by documentary evidence; or shown to be true by undoubted testimony clearer than light.

TITLE XX.

CONCERNING WITNESSES.

1. The Emperor Alexander to Carpus.

If a controversy arises with reference to your being freeborn, defend your case by documentary evidence and arguments if you can do so; for witnesses alone are not sufficient to establish proof of free birth.

Given on the tenth of the Kalends of May, during the Consulate of Maximus, Consul for the second time, and ^lianus, 224.

2. The Emperors Valerius and Gallienus to Rosa.

The testimony of members of a household is also rejected by the Civil Law.

Given on the third of the Kalends of September, under the Consulate of Valerian, Consul for the third time, and Gallienus, Consul for the second time, 256.

3. The Emperors Carus, Carinus, and Numerian to Valerius.

It is certain that a case which is only proved by witnesses, and is not supported by any other lawful evidence, is of no force or effect.

Given on the Kalends of December, during the Consulate of Carua and Carinus, 283.

4. The Emperors Diocletian and Maximian to Candidus.

In order to ascertain the truth, witnesses must be produced who hold in greater esteem the faith due to justice than the favor and power of those entitled to the same.

Given on the fifth of the Kalends of May, during the Consulate of Maximus, Consul for the second time, and Aquilinus, 280.

5. The Same, and the Csesars, to Tertullus.

Fathers and children cannot be permitted to give evidence against one another, even if they are willing to do so.

Given at Nicomedia, on the fourth of the Nones of December, during the Consulate of the Caesars, 294.

6. The Same, and the Csesars, to Diogenes and Ingenua.

The demand which you make, namely, that the adverse party shall be compelled to produce the persons by whom the business was transacted, is entirely too strong. Therefore, understand that you yourself should introduce your own evidence in the case, and that your adversaries cannot be obliged to furnish testimony against themselves.

Given on the sixth of the Kalends of May, during the Consulate of the Csesars, 294.

7. The Same, and the Csesars, to Derulonus.

There is no doubt that a slave cannot be subjected to torture for or against his master, but he can be put to the question for some act of his own.

Given at Nicomedia, on the Kalends of November, under the Consulate of the Csesars, 294.

8. The Emperor Constantine to Julian, Governor.

We have already directed that witnesses should testify after having been sworn, and that the preference should be given to those of honorable reputation.

(1) In like manner, We have ordered that no judge shall in any case readily accept the testimony of only one witness; and now We plainly order that the evidence of only one witness shall not be taken, even though he should be distinguished by senatorial rank.

Given on the eighth of the Kalends of September, during the Consulate of Optatus and Paulinus, 334.

9. The Emperors Valens, Gratian, and Valentinian to Gracchus, Urban Prefect.

The laws deprive everyone of the power to testify in his own case.

Given on the fifth of the Kalends of December, during the Consulate of Valens, Consul for the fifth time, and Valentinian Junior, 376.

10. The Emperors Honorius and Theodosius to Csecilianus, Urban Prefect.

Witnesses called to give evidence in the cases of others must be free, if they are not said to be implicated in the crime, and confidence in their knowledge shall be required of them; and the judge, in the production of the necessary persons, that is to say, of good witnesses, must not fail to direct that their proper expenses be paid by the accuser, or by the others by whom they were summoned, when they come to court.

The same rule applies when witnesses are produced by either side in a pecuniary case.

Given at Ravenna, on the twelfth of the Kalends of February, during the Consulate of Honorius, Consul for the eighth time, and Theodosius, Consul for the fourth time, 409.

Extract from Novel 90, Chapter VI. Latin Text.

If a witness, when introduced, is said to be a slave, and he desires to testify, but alleges that he is free, the question of his status must first be determined, and if it should appear after investigation that he is a slave, his evidence shall be rejected. Where, however, he says that he is a freedman, he must produce the document of his manumission before he testifies, unless he is willing to make oath that the evidence is elsewhere; and, if this is done, his testimony should be taken down, and if he does not produce the instrument showing his manumission, it shall be rejected. But if the witness is declared to be unacceptable on account of a criminal action pending between the parties, he shall not be heard before the said action has been decided. But when he is considered as prejudiced on account of some pecuniary litigation in which he is involved, or for some other reason, his evidence shall be taken, and the questions of this kind which arise shall be reserved for argument.

11. The Same to Georgia.

We forbid freedmen, under a penalty, from giving unlawful and dishonorable testimony against their patrons, and as they must not voluntarily dare to give such testimony, so, if summoned as witnesses, they cannot be compelled to appear in court for that purpose.

Given at Ravenna, on the fourth of the Ides of August, during the Consulate of Marinianus and Asclepiodotus, 243.

12. The Emperor Zeno to Arcadius, Prsstorian Prefect.

We order that no one who has appeared before any judge (even though he may not be under his jurisdiction) for the purpose of giving testimony, can claim exemption on the ground of being in the army, or plead any other exception for the purpose of evading the action of the judge, which is demanded either by dishonorable evidence, or the nature of the case; but that all those who testify in civil actions shall, as it were, be deprived of their privileges of offering an exception in court, and having been stripped of its protection, shall

be brought privately before the judge, in order that they may not apprehend that what they may say may offend his ears.

All magistrates (as has frequently been stated) without being prevented by any exception, are authorized to punish witnesses whose testimony seems to be either tainted with falsehood or fraud, in accordance with the nature of the offence.

Given on the twelfth of the Kalends of June, during the Consulate of Decius and Longinus, 486.

13. The Emperor Justinian to Menna, Prsetorian Prefect.

If anyone should have made use of witnesses, and- the same ones are introduced against him in another action, he shall not be permitted to exclude them, unless he can show that enmity has subsequently arisen between him and them, on account of which the laws direct that witnesses shall be rejected; and under such circumstances he should not be deprived of the power to contradict their testimony by means of their own statements. If, however, he should show by undoubted evidence that they have been corrupted either by the gift or the promise of money, We order that he shall have the right to prosecute them.

Given on the seventh of the Kalends of June, during the second Consulate of Our Lord Justinian, 528.

14. The Same, to Menna, Prsetorian Prefect.

With a view to curtailing as much as possible the ease with which witnesses are obtained, by means of whom many violations of the truth are perpetrated, We order all those who state that they have contracted debts in writing shall not be heard, if they say that they have paid all, or a portion of the indebtedness, without having obtained a written discharge of the same; and if they attempt to produce witnesses of low character, or who perhaps have been bought, to prove a payment of this kind, no attention shall be paid to them, unless five respectable witnesses, who are citizens of the highest reputation, and were present at the payment of the money, state under oath that the debt was paid in their presence; so that everyone may know that it has been decided that persons cannot make payment of a debt either wholly or in part, unless they have the fact committed to writing, or can prove it by the above-mentioned oral testimony. It is, however, but reasonable to except from the provisions of the present law those who have already paid a debt, or a portion of the same. But when payment has been evidenced by a written instrument, and it has been destroyed by accident, as that of fire, shipwreck, or some other mis- -fortune, then those who have sustained the loss shall be permitted to show the cause, and prove the payment by witnesses, and in this way avoid the consequences of the loss by establishing the destruction of the instrument.

Given on the Kalends of June, during the Second Consulate of Our Lord Justinian, 528.

Extract from Novel 90, Chapter II. Latin Text.

Witnesses shall be summoned as in the case of wills, and not appear by accident as mere passersby. The same rule will apply if, being called after payment was made, they heard the acknowledgment of the creditor that the money due to him had been received.

15. The Same to Julian, Prsetorian Prefect.

If anyone, in accordance with Our laws, in a pecuniary case desires to call witnesses who are unwilling, and they voluntarily consent to give security that they will be present, this can be done. If, however, they refuse to do so, We order that they shall not be imprisoned, but they shall be bound by oath to appear; for if those who have produced them think that their testimony should be believed, when they are sworn in the case, they should have still more faith that the presence of the witnesses will be secured by their oath.

But, as witnesses should not, under such circumstances, be compelled to leave their homes and submit to inconvenience for the benefit of others, We order that judges shall not compel them to be present for more than fifteen days after they have been summoned, and that they shall provide that the case in which the witnesses appear to be necessary shall be heard within that time, and when one of the parties to the suit is absent, and, after having been notified by the bailiffs, has refused to appear, absolute permission is granted to judges to take the evidence of his witnesses as well as that of those of the other party who is present.

Moreover, the said term of fifteen days having expired, the witnesses shall be permitted by the judge to leave, and he shall have no authority to recall them after they have once departed. We also order that if the judge was to blame for not having the testimony given, he shall be forced to indemnify the injured party out of his own property for any damage which he may have sustained.

Given on the twelfth of the Kalends of April, during the Consulate of Lampadius and Orestes, 530.

Extract from Novel 90, Chapter II. Latin Text.

When anyone has been wrongfully injured by another, or has sustained damage in some other way, or suffered a loss at his hands, and wishes to produce witnesses in court and publish their testimony, his adversary shall be notified by the judge, and the latter shall hear the evidence in his presence. If, however, he should refuse to appear, the judge can hear the witnesses even in his absence, and their testimony will have as much weight as if it had been taken in his presence; nor can he oppose this on the ground that evidence was introduced by only one of the parties to the suit.

16. The Same to Julian, Prsstorian Prefect.

Where witnesses were produced before judges appointed for the purpose of compromise, it was doubted whether the party who called them could make use of their testimony in court, or whether he should

not be heard. In consequence of this, We order that where anything has been decided with reference to a compromise in cases of this kind, it shall stand; but if nothing has been agreed upon, and the witnesses are living, he against whom they have testified, and who refuses to accept their evidence, shall be permitted to have them called a second time, and this shall not be opposed on the ground that they have already given their testimony. If, however, he should refuse to accept it, it shall be received as already given, but he can contradict it by all the legal means which he is entitled to use. But when all the witnesses are dead, he will then be required to accept any of their evidence which has been committed to writing. If, however, some of them should be dead, and some living, the said litigant will, so far as the testimony of those who are living is concerned, have a right to accept their statements, or have the witnesses recalled. With reference to such as are dead, their evidence should not be rejected; but he can, as We have previously stated, avail himself of every legal resource to contradict the witnesses and their testimony.

Given on the sixth of the Kalends of April, during the Consulate of Lampadius and Orestes, 531.

TITLE XXI.

CONCERNING THE CONFIDENCE TO BE REPOSED IN WRITTEN INSTRUMENTS, AND THEIR Loss, AND WHEN RECEIPTS AND COUNTER-RECEIPTS SHOULD BE GIVEN, AND CONCERNING WHAT THINGS CAN BE DONE WITHOUT THEIR BEING COMMITTED TO WRITING.

1. The Emperor Antoninus to Marchia.

If you prove that your debtors owe you money for some reason or other, after you have applied to the Governor of the province, he will compel them to make payment, nor will a loss of the written evidence of the debt prejudice your rights, if it should clearly appear by competent evidence that the parties in question are indebted to you.

Given on the fifth of the Ides of September, during the Consulate of Antoninus, Consul for the fourth time, and Balbinus, 214.

2. The Emperor Alexander to Mabilianus.

If you should make use of a written document on account of which another person has already been accused and convicted of forgery, and it should appear that he from whom you demand money is ready to accuse you of the same offence, and take the risk of the penalty imposed by the Cornelian Law, even though the person who was convicted has not appealed from the sentence, you, who have not yet been accused of crime, cannot take an appeal.

Given on the third of the Kalends of October, during the Consulate' of Maximus, Consul for the second time, and ^Elianus, 224.

3. The Same to JElianus.

If your adversary has stated to the Governor of the province that he will not make use of the document which he produced, as he doubts whether it is genuine or not, you should not be apprehensive that the matter will again be brought up on account of the document, which it appears from his own statement was not genuine.

Given on the third of the Nones of December, during the Consulate of Maximus, Consul for the second time, and ^lianus, 224.

4. The Emperor Gordian to Martian.

If, on account of the loss of your papers, you are unable to prove that the money was paid to the public collector, an examination of the accounts of the Treasury will establish the truth of the allegation.

Given on the second of the Ides of February, during the Consulate of Gordian and Aviola, 240.

5. The Same to the Soldiers Priscus and Marcus.

Where the evidences of a debt have been consumed by fire, while it is unjust for debtors to refuse payment of the sums which they owe, still, too ready belief should not always be accorded to persons who complain of such an accident. Therefore, you should understand that where the instruments are missing, you ought to prove the truth of the statement in your petition by other evidence.

Given on the third of the Kalends of June, during the Consulate of Sabinus, Consul for the second time, and Venustus, 241.

6. The Emperors Diocletian and Maximian, and the Csesars, to Lucidus.

It is a well-established rule of law that where the certificate of your birth is lost, your civil condition is not affected thereby.

Given at Nicomedia, on the thirteenth of the Kalends of February, during the Consulate of Maximus, Consul for the second time, and Aquilinus, 286.

7. The Same, and the Csesars, to Zinima.

If you have been honorably discharged from the army, even though, as you allege, the papers showing this fact have been lost, still, if the truth can be established by other clear evidence, there is no doubt that you will be entitled to enjoy the privileges of veterans.

Given on the fifteenth of the Kalends of June, during the Consulate of Maximus, Consul for the second time, and Aquilinus, 286.

8. The Same, and the Csesars, to Alexander.

If it should be proved that the land in question belongs to you, the judge will provide that no prejudice shall result to your ownership through any act of the usufructuary growing out of the loss of your muniments of title.

Given on the fifteenth of the Kalends of March, during the Consulate of Diocletian, Consul for the second time, and Maximian, 287.

9. The Same, and the Csesars, to Aristenetus.

Partition of property, when legally made, shall not be considered void for the reason that no instruments have been drawn up with reference to it.

Given on the seventh of the Kalends of July, during the Consulate of the above-mentioned Emperors.

10. The Same, and the Csesars, to Victorinus.

As a sale when lawfully concluded remains valid even if no documents evidencing it have been executed, so it has been decided that where any have been executed and subsequently lost, the validity of the sale will not be affected.

Given on the eighth of the Kalends of November, during the abovementioned Consulate.

11. The Same, and the Csesars, to Theagena.

Emancipation having taken place although the documents are no longer in existence, still, if it can be proved either by reliable witnesses or by unquestionable documentary evidence that the emancipation actually occurred, the truth cannot be affected by the loss of the

papers.

Given on the third of the Ides of November, during the abovementioned Consulate.

12. The Same, and the Csesars, to Dionysia.

Where you have been placed in possession of a tract of land by means of a donation, you are none the less entitled to it because no written instrument is said to have been executed for the purpose of conveying the title.

Given at Nicomedia, on the Ides of December, under the abovementioned Consulate.

13. The Same, and the Csesars, to Leontius.

The statement that documents have been lost, made in the presence of persons who are ignorant of the fact, is of no benefit for the establishment of the truth.

Given at Nicomedia, on the sixteenth of the Kalends of January, during the above-mentioned Consulate.

14. The Same, and the Csesars, to Severus, Count of the Spains.

Different documents which conflict with one another, and are produced by one and the same person, can have no effect whatever.

Given on the fourth of the Kalends of May, during the Consulate of the Caesars.

15. The Emperor Constantine to the People.

In the administration of justice, documentary evidence has the same force as the depositions of witnesses.

Given at Rome, during the Kalends of August, during the Consulate of Gallicanus and Bassus, 317.

16. The Emperor Justinian to Menna, Prsstorian Prefect.

We order that contracts of sale, exchange, or donation, registry of which is not necessary, gifts of earnest money, or those made for any other reason which are required to be in writing, and also such as relate to compromise, shall not have any force unless evidenced by written documents and confirmed by the signature of those who execute them; and if they have been drawn up by a notary, they must be completed by him, and finally acknowledged by the parties interested, so that, where these formalities have not been complied with, no one will be permitted to claim any right for himself growing out of a contract or compromise based upon a written memorandum (even though it be signed by one or both the parties), whether it has not yet been carried out, or is complete; in order that in transactions of this kind it cannot be said that the vendor was required to sell the property at a certain price; or that the contract of sale was perfected; or that the purchaser should be compelled to make payment.

We decree that this rule shall apply to instruments of this description, not only where they have already been reduced to writing, but also where they have not yet been completed; unless where a compromise has been made, or a judgment rendered, under which circumstances they cannot be revoked.

Only those documents are excepted from this rule which have already been drawn up and published, for We do not include these in the present law, but permit them to be subject to those formerly enacted. We also add that, hereafter, where earnest money has been given for the purpose of making a sale of any kind of property whatsoever, whether the contract is in writing or not, even though it may not have been expressly stated what disposition must be made of the earnest money in case the contract was not carried out, he who promised to sell the property, and then refuses to do so, shall be compelled to pay double the amount of the deposit; and he who agreed to purchase it, and refuses to do so, shall lose the sum which was given, and shall be denied the right to recover it.

17. The Same to Menna, Praetorian Prefect.

We order that judges, either in this Renowned City or in the provinces, in accordance with what We have already decreed, where witnesses reside in other places, may (if they think proper to do so) send the litigants or their attorneys there, in order that the deposi tions of the witnesses may be taken in the presence of one or the othei of the parties to the suit, and returned to them.

We also wish these rules to be observed in the case of those who, where documents have been introduced, demand that they be proved; so that if they ask for it, they may be permitted to have testimony taken elsewhere. If the judge should find this request to be just, he can issue a decree to that effect, so that afterwards, whether the document is proved or not, the matter may be sent back to the former judge.

Given on the eighth of the Ides of April, during the Consulate of Decius, 529.

Extract from Novel 90, Chaper V. Latin Text.

This proceeding may be demanded either before a judge or the defender of a city, and can take place from one province to another, or from one city to another, or from a city to a province; but the rule is only applicable to civil actions, for in criminal cases witnesses must be produced in court and subjected to torture, if the case requires it.

18. The Same to Demosthenes, Praetorian Prefect.

Where several persons have received receipts for rent or interest, and when any doubt arises with reference to them, the rights of their creditors become uncertain when the parties deny that they have these receipts; as where serfs dispute the ownership of their master, and unjustly claim their own freedom, or debtors, desiring to plead temporary prescription against their creditors, make similar denials. With a view to disposing of this difficulty, We order that if, in the above-mentioned cases or in any other private ones resembling them, anyone who gives a receipt should desire to have a copy with the signature of the person who received it, he will be entitled to do so, or to receive a counter-receipt; so that, if permission is granted him, he who obtained the receipt will be obliged to give a counter-receipt in return; and if the creditor neglects to do this, the rights of the iperson who did not receive the counter-receipt will not be prejudiced; for it is contrary to the rules of equity that what has been introduced for the benefit of anyone should redound to his injury.

Given on the twelfth of the Kalends of October, during the fifth Consulate of Decius.

19. The Same to Julian, Prsetorian Prefect.

It is clear that the comparison of notes and other instruments, which are not publicly executed, very frequently gives occasion to accusations of forgery, both in lawsuits and in contracts. Therefore, We order that no comparison of private papers shall be made, unless they bear the signature of three witnesses, and that, before they are accepted, either all three of them, or at least two, must acknowledge the genuineness of their signatures before a comparison of the instruments takes place, as only under such circumstances is a comparison of handwriting allowed; for, otherwise, We forbid such a comparison to be made, even though someone may produce a written instrument against himself; except where a comparison is necessary in the case of instruments originating in court, or in public documents, or in papers of the kind which We have mentioned.

We do not allow any comparison to be made, unless it has previously been stated under oath by the persons who are to make it that they do so without being induced by the hope of gain, or by enmity,

or by favor.

We order that this rule shall be observed in all the Imperial bureaus as well as in the tribunal of the eminent prefecture; in thai

of the commander of the army; and in those of all other judges who have been appointed in Our dominions. These provisions shall be complied with hereafter, for to annul any comparisons which have already been made would not be without danger.

Given on the thirteenth of the Kalends of April, during the Consulate of Lampadius and Orestes, 530.

Extract from Novel 49, Chapter II. Latin Text.

You very properly ask that an examination of the instruments which your adversary produces and makes use of be permitted; and any document which is produced in the Public Archives is also subject to public evidence of this kind.

Extract from Novel 73, Chapters Vill, and IX. Latin Text.

If, however, the contract was made in a city, and was for more than one pound of gold, it must, by all means, be proved by comparison of handwriting, for it alone is not sufficient evidence.

20. The Same to Julian, Prsetorian Prefect.

When anyone introduces a written instrument or some other paper, and proves its genuineness, and afterwards the person against whom the said paper or instrument was produced attempts to show that it was forged, in order that doubt may no longer exist as to whether he who introduced the paper can be compelled to again establish its genuineness, or whether the former evidence was sufficient, We order that when such a case occurs, he who asks that the paper be produced a second time must first make oath that he thinks he can prove that it is forged, to enable a petition of this kind to be considered. But what course must be pursued if he should make a demand of this kind, being well aware that the document was lost or burned, or had been destroyed in some other way, and he pretended to require its production, knowing the difficulty of doing this? After the plaintiff or the claimant has been sworn, and the accusation brought before a competent judge, the necessity will then be imposed upon the person who introduced the document.in question to introduce it again in court, in order that the accusation of forgery may be investigated. If, however, he should say that it is not possible for him to produce the paper, because he has been deprived of it by accident, he must then swear that he has not the said paper in his possession; that he has not given it to anyone; that it is not held by another with his consent; and that he has not been guilty of fraud to prevent its appearance, but, as the said document has actually been lost without his fault, its production by him is impossible.

If he takes an oath of this kind he shall be excused from the necessity of producing the paper, but if he refuses to take it, then the instrument shall be considered forged, and of no effect, so far as the party against whom it was produced is concerned, but shall be absolutely void. We do not, however, desire to subject to further

punishment persons who, under such circumstances, refuse to be sworn, as there are many who, influenced by too great reverence, are not even willing to swear to something which is true.

We grant the same opportunity to the other party until the action has been decided in court, for if it has already been terminated, and has not been suspended by appeal, it cannot be expected to be revived by means of the usual procedure; as it is sufficiently hard to authorize a complaint of this kind, lest cases may be protracted indefinitely, and matters which have already been settled by this means, may again be opened, and the opposite of what We have intended occur.1

Given on the tenth of the Kalends of March, during the Consulate of Lampadius and Orestes, 530.

1 No law of evidence, as we understand it, was known to the Roman jurists. The greatest latitude of statement was allowed; hearsay was admissible; proof was only regarded as conclusive where a fact was established by the testimony of two credible witnesses, or where a public document of indisputable authority was introduced. Presumptions were, under certain circumstances, considered to have much more effect than in our practice, especially when not confuted by the adverse party. Of legal presumptions the court took judicial notice.

Presumptions, which were often accepted in lieu of testimony, were of several kinds. The most important were the priesumptiones juris et de jure, which, being arbitrary legal rules, were absolute, and could not be disputed. Next came the prsesumptiones juris, by which something was held to be established as long as no contradictory evidence was adduced. The last, and those having least weight, were the priesumptiones facti, or inferences of fact, which arose from time to time during the proceedings, and whose application or rejection was entirely dependent upon the will of the court.

Competency to testify was, in some respects, governed by the same rule that prevails at the present time; in addition to this, however, minors under the age of fourteen years, anyone accused of perjury, or who had been adjudged a spendthrift, a convict, a person publicly denounced as infamous, and an adulteress, were declared to be absolutely incompetent. A particeps criminis, as being quasi infamous, was included in this category. All who had an interest in the matter to be decided were excluded, in accordance with the maxim: "Nullus idoneus testis in re sua intelligitur;" hence neither party to an action could give evidence, for fear his prospective benefit might prevail over his sense of integrity, unless the oath was tendered by his opponent, who was then held to have waived his privilege; and the general legal principle was considered no longer applicable to that particular case. This oath, to have any effect, must be demanded either by the adversary or the judge.

Consanguinity was also a bar, as well as the close intimacy of friends ("Amicos appellare debemus non levi notitia, conjunctos") ; a client could not testify against his patron, nor a slave against his master, nor an attorney against his constituent or principal, and deadly enemies were reciprocally excluded. The above-mentioned persons were denied the right because of the influence, or, in some cases, the duress, which was presumed to exist. The pecuniary circumstances of a proposed witness were carefully investigated, and if he were found to be very poor, his testimony, if not rejected, was considered to be practically worthless, on" account of his supposed liability to corruption. This inequitable rule was subsequently incorporated with all its rigor into the legal compilations of mediaeval Europe. Torture could only be employed against slaves in civil actions having reference to the descent and distribution of estates.

The onus probandi rested on the plaintiff, who was obliged to establish his claim by affirmative evidence, as prescribed by the rule, "Ei incumbit probatio qui dicit, non qui negat," a doctrine which has been adopted by all modern systems of

TITLE XXII.

WHAT HAS ACTUALLY BEEN DONE HAS MORE FORCE THAN WHAT HAS BEEN SIMULATED AND EXPRESSED

IN WORDS.

1. The Emperors Valerian and Gallienus to Rufinus.

In contracts, the truth of the matter should rather be considered than what is stated in writing.

jurisprudence. The defendant was likewise required to prove any allegations set out by him in his exceptio, or other pleadings.

The number of witnesses testifying to the same fact was held to be entitled to greater consideration than their character as individual members of the community. More attention was paid to the testimony of a man than to that of a woman; and the power of rank and wealth over comparative obscurity and indigence was, with manifest injustice, recognized by the Roman tribunals.

There was, before the reign of Justinian, no legal process by means of which witnesses could be compelled to appear, except in criminal cases, hence their attendance was purely voluntary.

Greater weight attached to all public records and properly authenticated documents duly executed by, or in the presence of the officials charged with that duty, than to others of any description; and of these which included instruments attested by notaries, courts were required to take judicial notice. A last will was considered a public document by the Roman jurisconsults.

A private instrument, to be legal, was required to be sworn to and signed by three witnesses. If they, or any of them, were dead, their signatures could be proved by their comparison with others of whose authenticity there could be no doubt. A personal document of such great age that the witnesses thereto, in the course of nature, must be presumed to be no longer living, might be accepted, if its genuineness could not otherwise be proved. Where a paper was lost or destroyed, no evidence of its contents could be given, unless its absence, or non-existence, was satisfactorily established under oath. If a large number of witnesses testified to the same fact, it was in the discretion of the judge to exclude as many of them as he desired. When the plaintiff swore to the damages to which he alleged he was entitled, the court could either accept his statement, or reduce the amount demanded. If he failed to prove his claim a non liquet, equivalent to a non-suit, was entered.

Among the Romans, documentary evidence was, under all circumstances, considered much preferable to oral evidence, on account of the relative uncertainty of the latter, and, as a rule, could not be contradicted by it. "Testes cum de fide tabularum nihil dicitur, adversus scripturam interrogari non possunt."

Hypothecary and pignorative contracts, promissory notes, and papers known to be the handwriting of parties to an action at law, occupied an inferior place, and were not entitled to the credit or importance enjoyed by those confirmed by public authority; and, where they conflicted with the latter, were required to be substantiated by indisputable and conclusive verbal testimony.

Copies of documents were admissible if their accuracy could be satisfactorily established, provided proof 'was adduced that the originals were not available. Three sworn witnesses were required for the attestation of conveyances of land, agreements, and similar instruments. A person was estopped by his own written deed, no matter what its character, provided its execution had been accompanied with the usual formalities, whether they involved merely an appearance and verbal acknowledgment before a public official, or the drawing up, sealing, and attestation of some document in the manner prescribed by law; and no testimony could be introduced to question its validity, unless it was shown that the instrument had been procured through fraudulent representations, or extorted by violence. Comparison of handwriting was permitted when well-founded suspicion arose as to the

2. The Emperors Diocletian and Maximian, and the Csesars, to Soterus.

Fictitious instruments, as, for instance, those which state that not the husband, but the wife, made the purchase, cannot alter the truth; hence the question of fact should be examined by the judge or the Governor of the province.

Given on the tenth of the Kalends of May, during the Consulate of the Csesars.

genuineness of the signature of a person who was dead, and witnesses of good reputation were prepared to establish its authenticity under oath. It was obligatory upon the plaintiff to furnish the defendant with a complete list of all the documentary evidence which he expected to introduce to prove his case.

The introduction of depositions was only allowed under circumstances of urgent necessity, as they were not made under oath and afforded no opportunity for cross-examination; and no list of interrogatories was submitted by the adverse party as at the present day. When the testimony of both sides was unsatisfactory and inconclusive, it was a well-recognized rule that the defendant was entitled to the benefit of the doubt. No one who had not attained his majority was qualified to testify in a criminal case. The unsupported evidence of a single witness was inadmissible to prove any fact.

A marked peculiarity of Roman judicial procedure was that certain oaths might be taken while the case was being tried, some of which were accepted as conclusive, so far as the question at issue was concerned. Either party to an action could tender the juramentum voluntariv/m to the other, who had the right to tender it back, and" if he did not do so, he was considered to have accepted it as true. Recourse was had to the juramentum in litem, when it was necessary to estimate the amount of damages sustained by the loss or destruction of property which, on this account, could not be produced in court, and the plaintiff was sworn as to its value. The juramentum necessarium sive suppletorium was administered by a magistrate to a litigant to supply the want of defective or incomplete evidence, when the request was made to do so, and the court was satisfied of its expediency.

Evidence of character, whether good or bad, was considered of extreme importance by the Roman jurisconsults. Contrary to the English rule, proof of previous misconduct, or the commission of crime could be introduced by the prosecution, without the question having been brought up by the accused. On the other hand, former good behavior and repute were always dwelt upon by counsel as almost conclusive confutation of the guilt of their clients. In making these statements, great reliance was placed upon the personal knowledge of the life of the defendant possessed by the court and jury, as was the case in early trials under the Common Law when the terms juror and testis were synonymous.

The great antiquity of the rules regulating the competency of witnesses which were incorporated into Roman jurisprudence is disclosed by an examination of the old Hindu laws:

"A Minor until Fifteen Years of Age, One single Person, a Woman, a Man of bad Principles, a Father, or an Enemy, may not be Witnesses."

"He who hath killed a Man, or who is guilty of Theft, of Adultery, or of false Abuse, or who, enticing a Man to himself, by Treachery or Deceit, deprives him of Life, and destroys his Effects, or whoever is a Juggler, and is constantly employed in Games of Dice and Chances, or whoever is a perpetual Wrangler, such Persons shall not be Witnesses." (Gentoo Code III, Vill.)

"Those must not be admitted who have a pecuniary interest; nor familiar friends; nor menial servants; nor enemies; nor men formerly perjured; nor persons grievously diseased; nor those, who have committed heinous offences.

"The king cannot be made a witness; nor cooks, and the like mean artificers; nor publick dancers and singers; nor a priest of deep learning in scripture; nor a student in theology; nor an anchoret secluded from all worldly connexions;

3. The Same, and the Csesars, to Maxima.

Where the purchase of a pledge has been made, not what was written, but what was done should be considered.

Given on the Kalends of May, during the Consulate of the Csesars.

4. The Same, and the Csesars, to Decius.

If anyone should cause it to be stated in writing that what he himself did was done by another, the act is of greater force than the document.

Given on the eighth of the Kalends of December, during the Consulate of the Caesars.

"Nor one wholly dependent; nor one of bad fame; nor one, who follows a cruel occupation; nor one, who acts openly against the law; nor a decrepit old man; nor a child; nor one man only, unless he be distinguished for virtue; nor a wretch of the lowest mixed class; nor one, who has lost the organs of sense;

"Nor one extremely grieved; nor one intoxicated; nor a madman; nor one tormented with hunger and thirst; nor one oppressed by fatigue; nor one excited by lust; nor one inflamed by wrath; nor one who has been convicted of theft." (Sir Wm. Jones, The Laws of Menu, Page 284.)

In Greece, as at Rome, slaves, either in the capacity of parties litigant or witnesses, were excluded from court.

"Servum hominem causam orare leges non sinunt. Neque testamonii dictio est:" (Terence, Phormio II, I.)

"No slaves shall appear as evidence." (Potter, Antiquities of Greece I, XXVI, Page 193.)

Interested parties were not allowed to testify; hearsay based on the statements of deceased or absent persons was admitted; and witnesses, after having been sworn, could not refuse to give their testimony, which was reduced to writing, "No one« shall be evidence for himself, either in judicial actions, or in rendering up accounts."

"There shall be no constraint for friends and acquaintances, if contrary to their wills, to bear witness one against another."

"Eye witnesses shall write down what they know, and read it." (Ibid., loc. cit.)

The rule fixing the number of witnesses required to establish a fact at Common Law is as old as Bracton. "Testium numerus si non adjicitur, duo sufficient." (De Legibus et Consuetudinibus Angliae V, 359.)

Many of the principles of the Civil Law relating to the nature and introduction of evidence were adopted by the old English jurists. Anyone who had been recreant, and in consequence branded with cowardice, was incompetent. "He that loseth liberum legem, becometh infamous, and can be no witnesse. Or if the witnesse be an infidell, or of non-sane memory, or not of discretion, or a partie interested or the like." (Coke, Institutes, I, I, I, 6. b.) As among the Romans, a defendant accused of a capital crime in England was formerly considered as practically outside the pale of the law, and hence not entitled to the aid of an attorney, or to the testimony of witnesses in his behalf.

Unlike the provision of Roman legislation, a single witness may be called in a legal proceeding in the English or American courts. Infamy is no longer a bar to a person's capacity to testify, but the credibility of his evidence is left to the jury. Many of the other ancient rules have been abrogated, among them those relating to age, sex, parties to the suit, and consanguinity.

The classification of presumptions bears a striking resemblance to that of the Civil Law. "Many times juries, together with other matter, are much induced by presumptions; wherefore there be three sorts, viz.: violent, probable, and light or temerary. Violenta priesumptio is manie times plena probatio; as if one be runne thorow the bodie with a sword in a house, whereof he instantly dieth, and a man is seene to come out of that house with a bloody sword, and no other

5. The Same, and the Csesars, to Victor.

If you should sign a false contract of sale, under the impression that it was a lease you had directed to be drawn up for you, and which the other party did not sign, but you did in good faith, there is no doubt that neither contract is valid, as in both instances consent was lacking.

Given on the thirteenth of the Kalends of January, during the Consulate of the Caesars.

man was at that time in the house, prsesumptio probabilis moveth little; but prie-sumptio lasvis sea temeraria moveth not at all."

The various judicial oaths of the Civil Law, juramentum in litem, juramentum suppletorium, and juramentum voluntarium, were incorporated into the jurisprudence of Scotland. "The oath in litem is admissible where the culpability of the defender is inferred by a presumption of law, without any express delict."

"The oath in supplement is the evidence of one acquainted with the facts, but subject to great bias. Being only admissible as in supplement of the other evidence, it must be corroborative of that evidence, in order to raise the proof from semiplena to plena."

"Reference to oath is not so much a species of evidence as a mode of supplying the want of evidence, and preventing unjust consequences, ubi non deficit jus sed probatio. It is accordingly settled that a party has not an absolute right to call for his opponent's oath; but that the court, in the exercise of its discretion, may refuse the reference, if they consider that it would not aid the justice of the case." (Dickson, A Treatise on the Law of Evidence in Scotland II, IV, I: V, III; VII, I; III, I, XV.)

The rules establishing the disability of witnesses on the ground of sex, infamy, dependence, and indigence—under which all were excluded who were not worth sixteen shillings and eight pence—have been abolished.

The juramentum, voluntarium, juramentum in litem, and the juramentum suppletorium constitute part of the French legal procedure, in which they are designated respectively, le serment deeisoire, le serment in litem, and le serment defere d'office. (Code Civil de France, Arts. 1357-1369.)

The first of these can be administered in any kind of controversy, but is only applicable to personal facts concerning him to whom it is tendered, which facts must be of such a conclusive character as to at once dispose of the question at issue, hence the name. The oath cannot be refused even on the ground that it will have a tendency to incriminate the person directed to take it.

The serment in litem is only admissible when the value of the property cannot be otherwise estimated. The serment defere d'office, usually administered to one of the litigants, is only intended as a source of information, when other testimony is incomplete.

In the French tribunals, all evidence, whether in the first place documentary or oral, is reduced to writing and then presented to the judge. The prolixity of witnesses is rather encouraged than restrained; opinion and hearsay, so rigorously excluded under the Anglo-Saxon practice, are interposed without objection or remonstrance; examination and cross-examination by attorneys are not permitted. Questions, when necessary, are asked by the magistrate who presides over the original judicial investigation, or enquete, and who is especially designated for that purpose. (Vide Bodington, An Outline of the French Law of Evidence, Pages 2, 73, 77, 79.)

Minors under fourteen years of age, insane persons, the blind and deaf, when the proof of facts demand eyesight or audition, persons directly interested in the action, ascendants and descendants, husband and wife, and those whose profession bind them to secrecy, are not permitted to testify before the Spanish tribunals. (Codigo Civil de Espana, Arts. 1244-1247.)

At present, the English and American rules of evidence probably coincide more nearly than those of any other branch of jurisprudence.—ED.

TITLE XXIII. CONCERNING LOANS FOR USE.

1. The Emperors Diocletian and Maximian to Sciola.

Those things which are destroyed by the exertions of superior force cannot be at the risk of the persons to whom the property was lent for use; but as you state that he to whom you lent an ox proposed to assume the risk of future damage and loss through a threatened incursion of the enemy, the Governor of the province shall compel him to carry out his agreement, if you can prove that he promised to indemnify you.

Given on the sixth of the Kalends of June, during the Consulate of the same Emperors.

2. The Same to Aulizanus.

As good faith requires the restitution of a female slave by the person who received her for temporary service, the result will be that your father-in-law must show before the Governor of the province why the female slave was delivered to him, in order that the party against whom you have filed your petition may be forced to comply with his contract.

Given on the day before the Nones of November, during the Consulate of the same Emperors.

3. The Same to Soteria.

With reference to the restoration of the property, which you gave to your husband to be encumbered in his behalf, you can, after the debt has been paid, bring the action of loan even against his heirs.

Given on the third of the Ides of April, during the Consulate of the same Emperors.

4. The Same, and the Ctesars, to Faustina.

The return of a loan cannot properly be refused under the pretext of a debt.

Given on the twelfth of the Kalends of December, during the same Consulate.

TITLE XXIV. CONCERNING THE ACTION OP PLEDGE.

1. The Emperor Alexander to Demetrius.

What has been obtained by the labor of the female slave, or from the rent of the house which you state is held in pledge, will disclose the amount of the indebtedness.

Given on the Kalends of October, during the Consulate of Antoninus, Consul for the fourth time, and Alexander, 223.

2. The Same to Victorinus.

A creditor who holds land in pledge is required to diminish the amount of the debt by the value of the crops which he has collected,

or should have collected; and if he injures the land, he will on this account be liable to the action of pledge.

Given on the sixth of the Ides of December, during the Consulate of Antoninus, Consul for the fourth time, and Alexander, 223.

3. The Same to Hermius and Maximilla.

The contract to which you refer, under whose terms, if the money due should not be paid within a certain time, permission is granted to sell the\ land pledged or hypothecated, does not deprive the debtor of the right to bring the action on pledge against his creditor.

Given on the twelfth of the Kalends of May, during the Consulate of Maximus, Consul for the second time, and JElianus, 224.

4. The Same to Dioscorida.

If the creditor, without his fault, has lost the silver given him in pledge, he is not required to make it good. If, however, he should be found guilty of negligence, even though it may not be clearly proved that he lost the silver, judgment shall be rendered against him for the amount of the interest of the debtor.

Given on the thirteenth of the Kalends of May, during the Consulate of Julian, Consul for the second time, and Crispinus, 225.

5. The Same to Trophina.

Whatever happens accidentally and cannot be provided against, as, for instance, an attack by robbers, does not furnish ground for a guarantee in a bona fide action, and therefore a creditor is not compelled to be responsible for property which has been lost in this way; nor will he be barred from bringing suit to recover the debt, unless it was agreed upon between the contracting parties that loss of the pledges would release the debtor.

Given on the Ides of April, during the. Consulate of Fuscus and

Dexter, 226.

6. The Emperor Gordian to Julian.

A creditor, who has received lands and houses in pledge or by way of hypothecation, is required to deduct from the amount of the indebtedness the damage he caused by cutting down trees, or demolishing buildings; and if through fraud or negligence he has rendered the property mentioned less valuable, he will be liable on this ground in the action on pledge, and will be required to restore everything to the condition in which it was at the time when the obligation

was contracted.

A creditor, however, is not forbidden to demand any necessary expenses incurred by him with reference to the property pledged. .

Given on the thirteenth of the Kalends of August, during the Consulate of Gordian, Consul for the second time, and Pompeianus, 242.

7. The Emperor Philip, and the Cassar Philip, to Saturninus. If neither blame nor negligence can be imputed to a creditor, he' will not be responsible for the loss of pledges; but if such a loss is

54

simulated, and, as you allege, the pledges are still in the possession of the adverse party, you can institute proceedings against him.

Given on the eighth of the Kalends of March, during the Consulate of Praesens and Albinus, 247.

8. The Emperors Diocletian and Maximian, and the C&sars, to Georgius.

There is no doubt that the pledge continues to be part of the property of the debtor, and hence if it is destroyed he must bear the loss. Therefore, as you state that the articles pledged were placed in warehouses, the result will be that, according to the general law that pledges are at the risk of the debtor (if the said warehouses are such as are ordinarily publicly used by others for the deposit of property), you will undoubtedly be entitled to a personal action to recover the entire debt.

Given at Milan, on the sixth of the Nones of May, during the Consulate of the above-mentioned Emperors.

9. The Same, and the Csesars, to Apollodora.

Neither creditors nor their successors can protect themselves by prescription based upon long time against debtors who demand property which has been pledged, after having paid the debt in full, or after having tendered, sealed up, and deposited the money for the creditors who refused to receive it. Therefore, understand that if you can show that this is the origin of the possession of the property by your adversary, you can recover it.

Moreover, in order that the creditor may be able to protect himself from the demand for the pledge, you will be required to prove the indebtedness; or if you hold the property pledged and claim it, he will be required to do the same thing; and the release of the pledge will not be difficult for you to obtain, either by payment of the money, or by tendering and formally depositing it.

Given on the Nones of May, during the Consulate of the Csesars.

10. The Same Emperors and Caesars to Ammianus.

The nature of the action on pledge shows that the property which has been encumbered should be returned as soon as the debt has been paid. In accordance with this rule, if you have pledged certain slaves, you can avail yourself of the same action; as the creditor cannot, at his will, appropriate the property of the debtor without an agreement to that effect, or an order of the Governor authorizing it to be done.

Given on the fifth of the Kalends of January, during the Consulate of the Caesars.

11. The Same Emperors and Csssars to Heriscus.

An account having been taken of the profits obtained by the creditor from property which has been pledged to him, and credited upon the debt, and the balance having been paid, or (if it was the credi-

tor's fault that this was not done), the amount due having been tendered, sealed up, and deposited, the pledges given as security shall be restored to the debtor, against whom prescription based upon long time can not be pleaded.

Given on the twelfth of the Kalends of December, during the Consulate of the Csesars.

TITLE XXV.

CONCERNING THE ACTIO INSTITORIA AND THE ACTIO EXERCITORIA.

1. The Emperor Antoninus to Hermes.

Your slave, by receiving a sum of money which had been loaned, renders you liable to the Actio institoria, when you have appointed him to discharge some duty, or conduct some business, and it is proved that permission was given by you for him to do this. The action, however, will not lie if it should be proved that the money was employed for the benefit of your property; but you will be compelled to make payment by means of the proceeding available for this purpose.

Given on the eighth of the Kalends of September, during the Consulate of the two Aspers, 213.

2. The Emperor Alexander to Callistus.

Although masters are only liable to the amount of the peculium of their slaves, in contracts made by the latter, still, there is no doubt that a master can be sued for the entire amount where the money has been employed for the benefit of his property, or the contract was made by the slave as agent, in an affair which he was appointed to transact.

Given on the third of the Kalends of May, during the Consulate of Alexander, Consul for the second time, and Marcellus, 227.

3. The Same to Martia.

The Actio institoria will lie in your favor against the person by whom, as you allege, a slave has been appointed to take charge of his counting-house, if you can prove that the money was deposited with the said slave, and not returned, in the course of the business with which he was entrusted.

Given on the Nones of May, under the Consulate of Agricola and Clementinus, 331.

4. The Emperors Diocletian and Maximian, and the Csssars, to Antigona.

If a woman should be appointed to command a ship, she will be liable in an Actio exercitoria for the contracts of him who appointed her, just as in the case of an Actio institoria.

Given on the thirteenth of the Kalends of November, during the Consulate of the Csesars.

5. The Same Emperors and Csesars to Gaius.

If you are sure you can prove that Domitian directed Demetri-anus to borrow a certain sum of money from you, you can bring suit against Domitian before a competent judge in the same way as in an Actio institoria.

Given on the fourth of the Kalends of November, during the Consulate of the Caesars.

6. The Same Emperors and Csesars to Onesima.

He who conforms to the will of the master when he makes a contract with his slave can legally hold the former responsible for the entire amount by an action resembling the Actio institoria.

Given on the fourteenth of the Kalends of December, during the Consulate of the Csesars.

TITLE XXVI.

WHEN BUSINESS is SAID TO HAVE BEEN TRANSACTED WITH ONE WHO is UNDER THE CONTROL OF ANOTHER, OR WITH REFERENCE TO PECULIUM; OR WHERE SOMETHING HAS BEEN DONE BY THE ORDER OF ANOTHER; OR WHERE ANYTHING is EMPLOYED FOR THE BENEFIT OF THE PROPERTY OF THE PERSON IN CONTROL.

1. The Emperors Severus and Antoninus to Mlius.

When a son under paternal control is appointed a guardian or curator, the action on guardianship, or of voluntary agency, or De peculia, or for money employed for the benefit of the property of another, should be brought against the father. Where a son is created a decurion with the consent of his father, and is afterwards appointed a guardian by magistrates, his father will be compelled to pay the entire debt, as this liability is understood to be incurred in the same way as that of other municipal charges.

Given on the seventh of the Ides of November, during the Consulate of Dexter, Consul for the second time, and Priscus, 197.

2. The Same to Annius.

It has been declared by the interpretation of the Perpetual Edict that where a contract having reference to property has been made with a son under paternal control, either with the consent of the latter, or with that of him to whose authority he was subject, whether the money was to be employed for the benefit of his own peculium or for the benefit of the property of his- father, and he should reject his father's estate, an action can only be brought against him for the amount that he is able to pay.

Given on the eighth of the Kalends of December, during the Consulate of Dexter, Consul for the second time, and Priscus, 197.

3. The Emperor Antoninus to Artemon.

If you lend money to the slave of Prisca, without his mistress directing this to be done, or ordering it, or consenting to it, still, if the amount was legally expended for the benefit of the property of his mistress, suit can be brought against her on that ground, and you can obtain what appears to be due to you in accordance with the forms of law.

Given on the third of the Kalends of July, during the Consulate of Lsetus and Cerealis, 216.

4. The Same to Lucius.

If you have obtained a loan of money under a contract of your father, and by his order, and you reject his estate, you will have no reason to apprehend that you will be sued by his creditors.

Given on the fifth of the Kalends of January, during the Consulate of Messala and Sabinus, 215.

5. The Emperor Alexander to Asclepiades.

Nothing prevents sons under paternal control, who are over twenty-five years of age, and have become sureties for others, from being liable in a proper action brought against them. If, however, suit is brought against you only to the amount of your peculium, avail yourself of all the defences to which you are entitled.

Given on the sixth of the Ides of December, during the Consulate of Maximus, Consul for the second time, and ^lianus, 224.

6. The Emperors Valerian and Gallienus, and the Cassar Valerian, to Matronus.

If your slave, having borrowed a sum of money without your permission, grants his creditor a right of habitation, in lieu of interest, your adversary can, on no legal ground, claim this privilege for himself, as the act of the slave did not render you liable; and, having entered upon your property, you will be protected against his violence by the authority of a competent judge.

Given on the twelfth of the Kalends of July, during the Consulate of ^milianus and Bassus, 260.

7. The Emperors Diocletian and Maximian, and the Cassars, to Crescens.

There is no doubt that anyone who has lent a sum of money to a slave belonging to another will, during the lifetime of the slave and within a year after his death, be entitled to bring the action De peculio against the master of the said slave; or if the sum was employed for the benefit of the property of the said master, to bring a praetorian action against him even a year after the death of the slave. Therefore, if the money has been employed for the benefit of the master's property, you can sue his heirs for the amount expended for that purpose. If, however, you are unable to prove that this is the case, the result will be that, if the slave is still living, you can sue his master

in the action De peculia; or if he is dead, or has been sold or manumitted, and the year has not expired, you can bring this action against the person having him in possession.

(1) Where, however, you made a contract with a freeman who transacted the business of the person whom you mentioned in your petition, and chose him as your debtor; understand that you have no right of action against his principal, unless the money was employed for the benefit of the property of the latter, or he ratified the contract.

Given at Byzantium, on the Nones of April, under the Consulate of the above-mentioned Emperors.

8. The Same Emperors and Czesars to Diogenes.

If you have acted as the mandator of your son, or a contract was made with him by your order while he was under your control, understand that you are liable for both principal and interest, and will be compelled to pay them, in order that the property pledged may be released. If, however, you became surety for the money lent, it is a well-established rule of law that you will be responsible under this obligation.

Given on the third of the Kalends of May, during the Consulate of the Caesars.

9. The Same Emperors and Csesars to Isidor.

If you became a debtor under a contract which had not an unlawful loan for its object, or if you became surety for your father, you will legally be liable for the indebtedness, whether you are under the control of your father, or whether, by his death, you have become independent. If you are the heir of your father, you will be liable in full; otherwise, for as much as you are able to pay in accordance with the terms of the Edict. If, however, you have become your own master by emancipation, you should understand that you are equally liable.

Given at Byzantium, on the sixth of the Ides of April, under the Consulate of the Csesars.

10. The Same, and the Csesars, to Diogenes and Aphrodisius.

When slaves, having the free administration of their peculium, sell mares with their colts, which form part of said peculium, their master will not have the power to rescind the contract. If, however, the said slaves, not having the free administration of their peculium, should sell property belonging to their master, without his knowledge, they cannot transfer to another the ownership which they do not possess, nor can they deliver lawful possession to purchasers who are aware of their servile condition. Hence, it is clearly not unreasonable that such purchasers cannot be benefited by prescription based upon long time; and therefore, having purchased movable property from a slave, they will also be liable in an action for theft.

Given on the fifth of the Nones of October, during the Consulate of the Csesars.

11. The Same, and the Csesars, to Attains.

Where anyone makes a contract with a female slave (whom it is established by law cannot legally be bound) against her master for the amount to which her peculium has been increased during the lifetime of the said slave, there is no doubt that an action should be granted within the available year after her death.

Given on the day before the Kalends of December, during the Consulate of the Csesars.

12. The Same Emperors and Csesars to Victor.

It has been established by the Perpetual Edict that a master cannot be bound by his slave, and that an action should be granted the creditors of the latter only to the extent of his peculium, after having deducted the amount which he naturally owes to his master; or, if it should be proved that any of the money was employed for the benefit of the master's property, an action can be granted them on this ground.

Given on the thirteenth of the Kalends of February, during the Consulate of the Casars.

13. The Emperors Honorius and Theodosius to John, Prsetorian Prefect.

It is clear that masters are liable under the Prsetorian action which is designated Quod jussu, if they direct their slaves or agents to count out a certain sum of money. Hence We order, by this law, which shall have the force of an Edict and be perpetual, that where anyone lends money to a slave, a serf, a tenant, an agent, or a steward, the masters or cultivators of the land will not be liable; and it is not proper that friendly letters, by which men frequently recommend a person who is absent, should cause money which was not asked for to be expended for the benefit of land, as a master cannot legally be liable unless money was especially furnished at his request.

We desire that any creditors who, without the order of the master and without having received sureties for that purpose, advance money to persons of this kind, shall lose what they have lent. Where, however, an agent, a slave, or the superintendent of land should be found not to owe any to his master on account of the property of which he had administered, We grant permission to a creditor to avail himself of a prsetorian action with reference to the peculium.

Given at Ravenna, on the fifth of the Ides of July, during the Consulate of Honorius, Consul for the tenth time, and Theodosius, Consul for the sixth time, 415.

TITLE XXVII.

BY MEANS OF WHAT PERSONS PROPERTY CAN BE ACQUIRED BY Us.

1. The Emperors Diocletian and Maximian to Marcella.

It is an undoubted rule of law that, with the exception of possession, nothing can be acquired for us by a free person who is not sub-

ject to the authority of another. Therefore, if an agent should make a contract, not in his own name, but in that of the person whose business he is transacting, by which, under certain circumstances, he reserves the right to demand the return of the property sold, and a stipulation is attached to the contract, no obligation is acquired by the master. Where, however, property has been delivered to slaves, it is acquired for their master.

Given on the Kalends of July, during the Consulate of the same Emperors.

2. The Emperor Justinian to Julian, Prsetorian Prefect.

Whenever a sum of money is counted out by one free person in the name of another, the right to a personal action will be acquired by him in whose name the money is lent by this act of counting it, but the right of hypothecation or pledge of property given to an agent will not be acquired by the principal parties to the contract; and for the purpose of disposing of this difference, We order that the right to the personal action, as well as that to the hypothecary action shall, by operation of law and without any assignment, vest in the principal party to the contract. For if the agent is required by law to assign his right of action to his principal, why should the assignment of this action appear to be superfluous in the beginning, and will not the principal party to the contract in the case of pledge or hypothecation in like manner acquire for himself the hypothecary action, the pledge, or the right to retain the same?

Given on the Kalends of November, during the fifth Consulate of Lampadius and Orestes, 530.

3. The Same to Julian, Prsetorian Prefect.

When two or more persons own a slave in common, and one of them orders him to make a stipulation for something in his name, for example for ten aurei, or for some other property, and the said slave mentions, not the name of the one who gives the order, but that of another of his masters, and stipulates in the name of the latter, the question arose among the ancient authorities, who would be entitled to the action, or the profit growing out of this transaction, he who gave the order, or the one whom the slave mentioned, or both? As all these opinions were, after much discussion, adopted by a large number of authorities, the better opinion seems to Us to be that of those who held that the stipulation should be considered as made by the person who ordered it to be done, and who asserts that he alone was entitled to the acquisition, rather than the views of the others which are stated on this point. For no indulgence should be shown to the wickedness of slaves, so that they, after treating the orders of their masters with contempt, may be permitted to enter into stipulations according to their own wishes, and thereby transfer to another master, who perhaps had corrupted them, the profit to which someone else was entitled. Nor ought it to be tolerated that an impious slave may think no obedience should be paid to his master, who had given

him the order, and that he was at liberty to confer an unexpected benefit upon another who, perhaps, had no knowledge of the transaction; for it was repeatedly stated by the ancients that the order of a master did not differ from an appointment, and ought to be obeyed when a slave was ordered by one of his masters to make a stipulation, without stating in whose name it should be done; for in this instance, the one who gave the order would be the only one to obtain the benefit. Where, however, he mentioned the name of another of his masters, the acquisition will be solely to his advantage, for it is much more important than his order.

Given on the fifteenth of the Kalends of December, during the fifth Consulate of Lampadius and Orestes, 530.

TITLE XXVIII. CONCERNING THE MACEDONIAN DECREE OP THE SENATE.

1. The Emperor Mlius Pertinax to Atilius.

If you can prove that for good reasons you believed the statements of a son under paternal control, to whom you lent money, and who stated that he was the head of a household, he shall be refused an exception.

Given on the tenth of the Kalends of April, during the Consulate of Falco and Clarus, 194.

2. The Emperors Severus and Antoninus to Sophia.

Whether Zenodorus, who was generally considered to be his own master, contracted with the consent of his father, or received a sum of money to be employed in matters with which the latter was charged, and afterwards, having become independent by means of a novation, or in some other manner, he assumed liability for the debt, it is reasonable that the Decree of the Senate should not be applicable.

Given on the fifth of the Kalends of March, during the Consulate of Saturninus and Gallus, 199.

3. The Same to Macrinus.

Where a son, subject to the authority of his father, having purchased something, promised to pay the price of the same with interest to the vendor, there is no doubt that the Decree of the Senate by which a son under paternal control is forbidden to pay any interest will not apply; for the origin of the obligation rather than the title of the action should be taken into consideration.

Given on the Ides of March, during the Consulate of Saturninus and Gallus, 199.

4. The Same to Cyrilla.

If you lent money to a son under paternal control with the permission of his father, the authority of the Decree of the Senate cannot be invoked. Hence the recovery of the pledge which formed part

of the property of the father will not be refused, especially where the son becomes his heir, provided no other creditor appears whose rights are preferable to yours under the terms of a contract, or in point of time.

Given on the twelfth of the Kalends of May, during the Consulate of Fabian and Mutian, 202.

5. The Emperor Alexander to Musa.

The authority of the Macedonian Decree of the Senate does not prevent a demand being made for money which was lent to a son under paternal control, for the purpose of prosecuting his studies, or in order to meet the necessary expenses of an embassy, which paternal affection would not have refused him. The action De peculia growing out of the contract of the son will lie, even after his death, against his father, where the time of the available year does not prevent it from being brought. If, indeed, the money is proved to have been loaned, by order of the father, it will not be necessary to inquire to what use it was put, but the action can be brought against the father without limitation of time, even after the death of the son.

Given on the day before the Kalends of May, during the Consulate of Agricola and Clementinus, 231.

6. The Emperor Philip and the Cassar Philip to Theopompus.

If your son, while under your control, should borrow money in violation to the Macedonian Decree of the Senate, the action De peculio can, under no circumstances, be legally brought against you on this account. Although the Decree of the Senate only mentions a son under paternal control, its provisions extend to grandsons and great-grandsons.

Given on the sixth of the Nones of March, during the Consulate of Philip and Titian, 246.

7. The Emperor Justinian to Julian, Praetorian Prefect.

If a son under paternal control should borrow money without the order, mandate, or consent of his father, and the latter should afterwards ratify the contract, We, with a view of disposing of the doubts entertained by the ancient jurists on this subject, do hereby order that, just as if the said son under paternal control had, in the beginning, borrowed the money with the consent or under the direction of his father, he shall be absolutely liable; so that even if his father afterwards ratifies his contract, it will still be valid, as it would be unjust to reject the paternal consent. For the ratification of the father is not unlike his mandate given in the first place, or his consent; as, in accordance with Our new law, every ratification has a retroactive effect, and confirms everything which was done from the beginning.

These rules are applicable to the transactions of private persons.

(1) Where, however, a son under paternal control, who is a soldier, borrows money without either the mandate, consent, approbation, or ratification of his father, the contract must stand; and it

makes no difference for what purpose the money was borrowed, or how it was expended, as, according to several principles of law, soldiers are considered to resemble men who are their own masters, and a soldier is always presumed not to have borrowed and expended any money except for some purpose connected with his military service. Given on the twelfth of the Kalends of August, during the fifth Consulate of Lampadius and Orestes, 530.

TITLE XXIX. CONCERNING THE VELLEIAN DECREE OF THE SENATE.

1. The Emperor Antoninus to Lucilla.

Relief is granted by the Decree of the Senate to women who become liable, or assume the obligations of others, when the contracting parties are not aware of the fact. If, however, having voluntarily assumed the obligation, they should pay money in behalf of others when they are not liable, they will have no right of recovery.

Given on the Nones of December, during the Consulate of Gentian and Bassus, 212.

2. The Same to Nepotiana.

You have in vain attempted to avail yourself of the exception authorized by the Decree of the Senate, enacted for the benefit of women who become sureties for others, as you yourself are the principal debtor; for the exception of the Decree of the Senate is only granted to a woman where she herself owes nothing as principal, but has become surety to a creditor for another debtor. If, however, she should obligate herself to the creditor of another person, or permit herself to be delegated for his debtor, she will not be entitled to the benefit of this Decree of the Senate.

Given on the third of the Ides of August, during the Consulate of Antoninus, Consul for the fourth time, and Balbinus, 214.

3. The Same to Servatus.

If you yourself borrowed a sum of money, and your mother, in violation of the Decree of the Senate, became your surety, she can defend herself by means of an exception.

Given on the third of the Ides of August, during the Consulate of Antoninus, Consul for the fourth time, and Balbinus, 214.

4. The Emperor Alexander to Alexandra.

The Decree of the Senate applies when a woman has assumed an obligation incurred by another, or when she becomes surety for him; or where someone has borrowed money, and she herself is the principal debtor in the beginning. This occurs whenever her own property is encumbered for the obligations of others. If, however, you, being at the time more than twenty-five years of age, sold your land

and paid the purchase-money for the benefit of your husband, the aid of the Decree of the Senate cannot be invoked.

Given on the sixth of the Kalends of January, during the Consulate of Maximus, Consul for the second time, and Julianus, 224.

5. The Same to Popilia.

If your property has been pledged by your husband without your consent, it will not, legally, be encumbered. Where, however, you have agreed to the obligation, and the creditor was aware of the fact, you can avail yourself of the aid of the Decree of the Senate. But if you permitted your husband to encumber your property, as if it was his own, with the intention of deceiving the creditor, relief cannot be granted you under the Decree of the Senate, which was enacted to protect the weakness, and not the duplicity of women.

Given on the fifteenth of the Kalends of July, during the Consulate of Julian, Consul for the second time, and Crispinus, 225.

6. The Same to Torquatus.

When a mother, while transacting the business of her daughters, gives security to their guardians by furnishing a surety, or delivering pledges, as she is considered, to a certain extent, as having attended to their affairs, neither she nor the surety furnished by her can take advantage of the Decree of the Senate, nor will she derive any benefit from the fact that her own property was pledged.

(1) When the guardian desires to excuse himself, and the mother interposes to prevent it, and promises him indemnity, she will by no means be prevented from availing herself of the aid of the Decree of the Senate.

(2) If, however, she should demand a guardian, and voluntarily assume responsibility for the guardianship, the authority of the law will prevent her from becoming liable.

Given on the sixth of the Ides of October, during the Consulate of Modestus and Probus, 229.

7. The Emperor Gordian to Vivian.

Where a creditor has knowingly received from a husband, as security for his own debt, land which belonged to his wife, even with her consent, he cannot, by selling the land, deprive the woman of ownership, on account of the protection afforded by the Decree of the Senate; and it would not be necessary for you, when you claim the property, to pay the price to the purchaser, if you have become your mother's heir.

Given on the twelfth of the Kalends of October, during the Consulate of Pius and Pontianus, 239.

8. The Same to Tripho.

If children of both sexes, who have been emancipated, jointly assume a debt of their father, although the daughters are exempted from the obligations of men by the exception of the Velleian Decree

of the Senate, the sons will, nevertheless, be liable to the extent to which they have bound themselves; and there is no doubt that the daughters having thus been exempted, the father can be sued for the same amount for which he would have been responsible if his daughters had not become bound for him. The pledges given by the father will undoubtedly be encumbered if they were received for the last obligation. If, however, they were obtained on account of the first obligation, they will only be liable in proportion to the amount returned to the father by the Actio restitutoria.

Given on the Nones of October, during the Consulate of Pius and Pontianus, 239.

9. The Same to Proculus.

Although a woman can make payment in behalf of another, still, if she should do so by virtue of an obligation which is not valid under the Decree of the Senate, and she is ignorant that she was entitled to the benefit of the Decree, she will have a right to recover the money.

Given on the Nones of July, under the Consulate of Gordian and Aviola, 240.

10. The Emperor Philip and the Csesar Philip to Triphona.

If your adversary entered into a business transaction with you but not with your husband, you can, under the pretext that an obligation of this kind is void, refuse to pay the balance of the rent which you agreed that you contracted for. If the owner leased the land, not to you but to your husband, and accepted you as surety for him, you can also defend yourself by pleading the benefit of the Decree of the Senate, which was enacted with reference to women becoming sureties.

Given on the eighteenth of the Kalends of September, during the Consulate of Peregrinus and Jiiimlianus, 245.

11. The Same to Ebora.

It is a well-established rule of law that, while marriage exists, the right of hypothecation or pledge can be granted to the husband.

Given on the eighth of the Kalends of October, during the Consulate of Peregrinus and J^milianus, 245.

12. The Emperors Valerian and Gallienus to Sepiduta.

If, desiring to endow your daughter, you have encumbered your property to your son-in-law, you are mistaken if you think that you can invoke the aid of the Decree of the Senate, for persons learned in the law have held that a case of this kind is not entitled to that privilege.

Given on the ninth of the Kalends of March, during the Consulate of Tuscus and Bassus, 339.

13. The Emperors Diocletian and Maximian to Condiana.

If money has actually been lent to you at interest by your creditor, whether it is alleged that the entire amount, or only a portion

of the same, has been employed for the benefit of your husband, you cannot avail yourself of the Decree of the Senate, even though your creditor may not have been ignorant of the cause of the contract.

Given on the third of the Kalends of September, during the Consulate of the same Emperors.

14. The Same Emperors and Csesars to Basilissa.

A woman cannot become surety in violation of the terms of the Velleian Decree of the Senate, and the law permits her sureties to avail themselves of the same exception. Therefore if your mother should not become the heir of her husband, she will be sufficiently protected by the remedy of the exception authorized by the Decree of the Senate.

Given at Byzantium, on the eighth of the Kalends of April, under the Consulate of the Caesars.

15. The Same, and the Csesars, to Agripimis.

If a woman, desiring to become surety for her husband contrary to the provisions of the Decree of the Senate, asks you to bind yourself for her as mandator, and suit is brought against you, you can defend yourself by means of the exception originating from this contract, and you will be released from liability.

Given on the eighteenth of the Kalends of June, during the Consulate of the Cassars.

16. The Same, and the Csesars, to Rufinus.

When a woman assumes the obligation of another, and relief is granted her by means of the exception of the Velleian Decree of the Senate, the action to establish him in his rights against his former debtors shall be granted the creditor.

Given on the seventeenth of the Kalends of February, during the Consulate of the Caesars.

17. The Same, and the Cassars, to Alexander and Others.

If your father borrowed money from Callistratus, and an instrument was drawn up which makes it appear that his wife had borrowed it, it is not necessary to have recourse to the exception granted by the Decree of the Senate, as the actual truth, rather than a fictitious transaction, will protect the woman.

Given on the third of the Ides of March, during the Consulate of the Caesars.

18. The Same, and the Csesars, to Zopicus.

Relief is granted to women who have assumed the obligations of others, whether they are old or of recent date, unless the creditor has, in some way or other, been deceived by the woman; for it has been established that the exception of the Decree of the Senate will not be applicable when a reply on the ground of fraud is filed.

Given at Antioch, on the fifth of the Ides of November, under the Consulate of the Cajsars.

19. The Same, and the Cassars, to Faustina,.

It is provided by the Perpetual Edict that the Decree of the Senate enacted with reference to the suretyship of women applies to such obligations as women have assumed in the first place, through the fraudulent acts of creditors; and if a creditor who intended to make a contract with another party should afterwards choose a woman, you can be defended by an exception against persons attempting to enforce their claims in accordance to what you allege.

Given at Nicomedia, on the eighteenth of the Kalends of January, during the Consulate of the Caesars.

20. The Same, and the Czesars, to Theodotian. There is no doubt that the heirs of a woman can also make use of the exception granted by the Decree of the Senate against her

creditors.

Given on the ninth of the Kalends of January, during the Consulate of the Caesars.

21. The Emperor Anastasius to Celer, Master of the Offices.

We order that women shall be permitted to voluntarily renounce the rights of hypothecation to which they are entitled on account of one or several contracts, or one of certain persons or things; and whatever is done in this manner shall, by Our authority, remain firm and irrevocable, so that if a renunciation of this kind is made for only one contract, as has been stated, or for several, or where the woman has given her consent with reference to one or several persons or things, which have been, or are to be made use of, this renunciation shall be confined to such persons or things as have been, or shall be agreed to, and not to any other contracts to which women have not given, or may not give their consent, and that permission shall be granted to oppose anyone making a contrary claim.

We decree by this carefully considered law that its provisions shall be applicable to all future contracts, matters, and controversies which have not been settled by compromise or final judgment, or disposed of in any other lawful manner.

Given on the Kalends of April, during the Consulate of Anatolius and Agapitus.

Extract from Novel 61, Chapter I. Latin Text.

Where a marriage-gift has been given by me or by anyone else for my benefit, and the property is immovable, I can neither alienate nor encumber it. Therefore, in a contract of this description, the consent of the woman is of no avail to prevent the action in rem, by which, after the marriage has been dissolved, she is entitled to recover property given her at the time of the betrothal, unless she has given consent a second time, when the term of two years has elapsed, and her husband has other property out of which her claim can be satisfied.

Leaving these two cases out of consideration, the rights of the woman cannot be prejudiced, no matter how often she gives her consent; and if the husband makes such an alienation, he will be liable with reference to his other property, since, so far as the woman is concerned, transactions of this kind are considered not to have been either entered into or written.

(1) There is much more reason for these provisions to apply to dowries, in order to prevent any movable property which composes them from being alienated or encumbered; for all the privileges granted in favor of dowries continue to exist in full force, whether the woman herself institutes proceedings, or someone else does so in her name.

22. The Emperor Justinian to Julian, Praetorian Prefect.

If a woman who has arrived at her majority subsequently furnishes security, or a bond, a pledge, or a surety should be given by her, We decree that the ancient inconsistencies in the law shall be abolished, and that, if within the term of two years to be computed after the first security has been furnished, she has given either a bond, a pledge or a surety in the same matter, her rights shall not be prejudiced, because, as the result of her weakness, she has for a second time exposed herself to loss.

If, however, she should do this after the lapse of two years, she herself shall be to blame, if, having been able to meditate frequently, and avoid what she had done, she did not do so, but voluntarily confirmed it; as, on account of the length of the time, she should be considered as not having bound herself for the obligation of another, but to have acted in her own behalf, and to have rendered herself liable under the second bond for the amount contained therein, as well as legally to have given the pledge or the surety.

Extract from Novel 134, Chapter Vill. Latin Text.

When a woman has given her consent to a written instrument evidencing a debt of her own husband, or has signed the same, and encumbered her individual property for herself, We order that an agreement of this kind shall be absolutely void, whether she did this only once or several times with reference to the same transaction, and whether the debt is a private or a public one; and that it shall be considered to have been neither agreed to, nor written, unless it is clearly proved that the money was expended for the benefit of the woman herself.

23. The Same to Julian, Praetorian Prefect.

For the purpose of removing the subtleties and difficulties of ancient jurisprudence, and desiring to abolish superfluous distinctions, We order that where a woman has offered herself as surety, and has received anything in the beginning or afterwards, in consideration of so doing, she shall, under all circumstances, be liable, and cannot invoke the aid of the Velleian Decree of the Senate, whether she has

incurred liability with or without an instrument in writing. If, indeed, she should state in the instrument itself that she had received something, and, on this account, had furnished security, and it should be ascertained that the said instrument had been publicly executed and attested by three witnesses, it must, by all means, be believed that she did receive money or other property, and she cannot have recourse to the privilege of the Velleian Decree of the Senate.

When, however, she became surety without any bond, or if the instrument was not drawn up in this manner, then, if the stipulator can show that she received either money or property, and in consideration of the same rendered herself liable, she shall be excluded from the relief of the Decree of the Senate. But if this should not be proved by him, the woman will then be entitled to relief, and the ancient right of action will be preserved in favor of the creditor against the person for whom the woman became surety.

(1) If anyone should give money or other property to a woman who was not qualified to become a surety, in order that she might obligate herself for him, she who actually received the said money or property shall not be permitted to have recourse to the authority of the Decree of the Senate, and the creditor is hereby authorized to proceed against her to collect whatever he can, and to sue the old debtor for the remainder, that is, for a part of the debt if he was able to collect something from the woman; or for the entire amount of it if she was in absolute want.

(2) In order that women may not wrongfully become sureties for others, We order that they cannot obligate themselves for any contract of this kind, unless by an instrument publicly executed and signed by three witnesses; for then they will only be bound where they comply with all the formalities provided by the ancient laws, or introduced by Imperial authority, which have reference to security furnished by women.

If, however, women should agree to become sureties in violation of this law, any document designed for this purpose, or any unwritten obligation shall be considered void, and as never drawn up or executed ; so that the aid of the Decree of the Senate may not be invoked, but the woman shall be absolutely released from all liability, just as if no transaction of this kind had ever taken place.

24. The Same to Julian, Prsetorian Prefect.

With a view to disposing of the doubts of the ancients, We decree that, if anyone should impose as a condition for the manumission of his slave that a woman should render herself liable for a certain sum of money, if the slave obtained his freedom, whether she bound herself as principal, or did so in behalf of the slave, We order that she shall without question legally be bound, and that the Velleian Decree of the Senate shall not apply to such a case; for it is sufficiently hard, and contrary to the principles of benevolence, for the owner of the slave, having placed confidence in the woman who either personally guaranteed the debt, or promised to pay it if the slave did

not, to give the slave his freedom and lose him, and not to receive what he was entitled to for his manumission.

25. The Same to the People of the City of Constantinople and of All the Provinces.

We decree, in general, that where anyone, either male or female, who is over the age of twenty-five years, has promised a dowry or bound himself or herself to give one for the benefit of any person whomsoever with whom a marriage can be legally contracted, they shall, by all means, be compelled to comply with their contract; for it ought not to be tolerated that, on account of some accidental circumstances, the women should not be endowed, and for this reason perhaps be rejected by her husband, and the marriage be dissolved; as We are well aware that the ancient lawgivers often softened the rigor of the rule in favor of dowries, and with good reason We promulgate this law. For, if anyone should voluntarily display liberality in the beginning, either he or she should fulfill his or her promises, so that what was by consent committed to writing in the first place, or was merely the subject of a verbal promise, may be afterwards complied with, even against the will of the parties, all the authority of the Velleian Decree of the Senate becoming inoperative in a case of this kind.

TITLE XXX. CONCERNING MONEY WHICH Is NOT COUNTED OUT.

1. The Emperors Severus and Antoninus to Hilarius.

If the sum of money was not counted out to you, and you allege that for this reason you have executed a bond for the payment of something which you did not receive, and you can prove that a pledge was given, you can bring an action in rem; for proceedings dependent upon the delivery of a pledge, where the money was not paid over, cannot be instituted, unless the genuineness of the debt is established. For the same reason, the truth must be shown, if your adversary should institute proceedings while you are in possession of the pledge.

Given on the Kalends of September, during the Consulate of Later-anus and Rufinus.

2. The Emperor Antoninus to Maturius.

If it is proved before the judge having cognizance of the case that you have received a smaller sum of money than you have given security to pay, he shall order you not to pay any more than you have received, together with the interest agreed upon in the stipulation.

3. The Same to Demetrius.

When suit is brought against you on your note, although an hypothecation may have been given, and you plead an exception on the ground of fraud, or because the money was not counted out to you, the plaintiff will be compelled to prove that it was paid, and if he does not do so, you will be released from liability.

4. The Same to Bassanus.

- As you acknowledge the genuineness of your obligation, and have even paid a part of the debt or the interest, you understand that it is too late for you to make complaint that the money was not counted out to you.

Extract from Novel 18, Chapter Vill. Latin Text.

When anyone denies his own writing on account of which suit was brought against him, as well as that the money was counted out to him, and loses his case, judgment shall be rendered against him for double damages, unless, the oath having been tendered him, he confesses judgment; for then he will not be punished, except by being compelled to pay the expenses incurred by the amount of proof which should be fixed by the oath of the plaintiff. If, however, after denying that the money was counted, he admits that he received it, the entire sum should, by all means, be collected, and he should not have credit for what he alleges he has already paid. But, on the other hand, if the plaintiff should deny his own handwriting produced by the defendant, the same penalty and oath should be imposed; and the same penalty should be inflicted upon a curator, if he raises any question as to an instrument in his own handwriting connected with the trust of which he has charge.

5. The Emperor Alexander to Haustianus.

If you have any legal defence against the claims of your adversary, you can make use of them; but you should not be ignorant of the fact that the exception on the ground of money not having been counted out will apply whenever suit is brought for a loan. When the amount is stated in the note, which is the evidence of the obligation, inquiry is not made whether it was counted out at the time when security was furnished, but whether there was a good consideration for the debt.

6. The Same to Justin.

You are wrong if you think that you are protected by an exception on the ground that the money was not counted out, when, as you acknowledge, you substituted yourself as the debtor of the person who was originally liable.

7. The Same to Julian and Ammianus.

If, when expecting to receive a loan, you gave security to your adversary for money which was not counted out, you can recover your obligation by means of a personal action, even if the plaintiff should not bring suit, or, if he does, you can avail yourself of an exception on the ground that the money was not counted.

8. The Same to Maternus.

When the person who signed the note dies within the time prescribed by law, without having filed any complaint, his heir will be

entitled to the remaining time to proceed either against the creditor or his heir. If, however, he instituted proceedings before his death, an exception on the ground that money was not counted out will lie, without limitation of time, either for or against his heir. But when he permitted the prescribed time to elapse without having filed any complaint, the heir of the debtor, even if he is a minor, will be compelled to pay the debt.

9. The Emperors Diocletian and Maximian to Zoilus.

As it is settled that no one can be forced to pay a larger sum than that which he received, if, a stipulation having been entered into, the creditor should not pay over the amount agreed upon, it is established that an exception in factum should be granted, provided the time during which a complaint of this kind can be made has not yet expired; or if the creditor, within the prescribed time, should comply with what was legally required of him, the ruler or Governor of the province, having been applied to, will not permit more to be collected from you as principal than you received.

10. The Same to Mezantius.

The statement of a person who contends that his debt was paid is not excluded by lapse of time. Nor can it be alleged against him that the right to make use of the exception on the ground that the money was not counted out, not having been taken advantage of within the prescribed time, is extinguished; as a great difference exists between one who states a fact and undertakes to establish it by evidence, and one who denies that the money was paid over, of which no proof is possible according to natural reasons; hence it becomes necessary for the plaintiff to establish the truth of his allegations.

11. The Same to Eutychianus.

If you have promised to pay to Palladius a certain sum of money by way of compromise, you cannot defend yourself by an exception on the ground that the money was not counted out.

12. The Same to Severianus.

The exception on the ground that the money was not paid will lie in favor of a mandator or a surety, just as in the case of a principal debtor.

13. The Emperor Justin to Theodore, Prsetorian Prefect.

Generally speaking, We decree that where security was given in writing for the payment of any sums of money whatsoever, on account of some preceding consideration, and where the promisor has explicitly stated what it was, he shall not be allowed to exact proof of the same from the stipulator, as he must acquiesce in his own admission; unless on the other hand he can, by clear evidence obtained from the instrument itself, show that the transaction was of a dif-

ferent character than that provided for therein; as We think that it is highly improper for anyone, in the same transaction, to dispute and resist with his own testimony what he has already openly acknowledged.

14. The Emperor Justinian to Menna, Prsetorian Prefect.

In written contracts by which money or any other property is either counted out or given to a person or his successor, who stated in writing that he has received the said money or other property, he cannot within five years plead the exception on the ground that the money was not counted out to him, as was formerly the rule; but he can only do so within the term of two continuous years, and, if this period has elapsed, no complaint based on the assertion that the money was not counted out can be interposed.

Those persons, however, who for some reasons especially set forth in the law are entitled to relief even after the said term of five years has elapsed, will hereafter have a right to enjoy the same privilege, even though the term of two years has been established instead of the former one of five.

(1) But as litigants may attempt to plead an exception of this kind against receipts or written instruments relating to the deposit of property or money, We have considered it to be just to abolish the power to do this in certain cases, and in others to limit it to a very short time. Therefore, We decree that an exception on the ground that the money was not counted out cannot, under any circumstances, be pleaded against an instrument showing that certain property or a sum of money was deposited; or against receipts given for public contributions (whether they were made out in acknowledgment of the entire amount or for only a portion of the same), as well as against other receipts drawn up after the completion of dotal instruments, in which it is stated that the dowry has been entirely, or only partly paid.

(2) With respect to other receipts made out by a creditor with reference to private debts, showing that a part on the principal or interest of the same has been paid; and that while settlement of the principal has been made, the contract for the payment of interest still remained in his hands, or promising the future return of the instrument evidencing the loan; or if a receipt relating to any other kind of a contract has been given in which the payment of money or the delivery of certain articles has been stated in writing, and setting forth that the money has been paid, or the other property has been delivered either wholly or in part; the exception on the ground of money not having been counted out can only be pleaded within thirty, days to be computed after the delivery of the receipt, so that, when they have elapsed, the said receipt shall be accepted by the judges as valid under all circumstances, nor shall the person who produced it be permitted (after the lapse of the above-mentioned thirty days), to state that the money has not been paid, or the other property delivered.

(3) The rule should be always observed that an oath cannot be tendered in cases where it is not allowed to plead an exception on the ground that the money was not counted out, either in the first place, or after the prescribed time has elapsed.

(4) He in whose favor an exception of this kind will lie shall be permitted, during the time above-mentioned in which the exception can be interposed, to state in writing his complaint based on the claim that the money was not counted out, or the property delivered by him who was alleged in the written document to have done so.

Or, if the party in question should happen to be absent from the place in which the contract was made, he can state his case in this Fair City before any ordinary judge, and in the provinces before the illustrious Governor of the same, or the defenders of the district; and in this manner obtain for himself the right to plead an exception without limitation of time.

If, however, he who was said in the instrument to have counted out the money, or to have delivered the property, conducts any administration either in this Fair City, or in the provinces, so that it may appear to be difficult to notify him, We grant permission to the person who desires to avail himself of the exception above-mentioned to go before any other judges either in this Fair City or in the provinces, and by means of them notify him against whom he desires to plead an exception of this kind that a complaint has been filed by him on the ground that the money was not paid over.

When there is no other civil or military official in the provinces, or for some reason it is difficult for him who opposes the above-mentioned complaint to appear and perform the acts provided for, We grant him permission to notify his creditor of the exception by means of the most reverend bishop and, in this manner, to interrupt the time prescribed by law. It is certain that these provisions with reference to an exception also apply to cases where the dowry has been counted out.

Given at Constantinople, on the Kalends of July, under the second Consulate of Our Lord Justinian.

Extract from Novel 100, Chapter I. Latin Text.

It is necessary for this complaint to be made in writing, and if anyone appears to resist it in court, the woman, or by all means the person who has promised the dowry, must be notified.

15. The Same to Menna^ Prietorian Prefect.

If the party, in whose favor the exception on the ground of money not having been counted out can be pleaded, fails to avail himself of the privilege, if he is present or absent, his creditors (whether they themselves are sued as having possession of his property, for the purpose of collecting the debts of the person entitled to this exception, either on the ground of dowry, or for any other reason; or whether they have brought suit against others in possession of the property) can, during the hearing of the case, interpose the excep-

tion against their adversary for the reason that the money was not counted out; nor will they be prevented from doing so because the principal debtor never availed himself of it. Therefore, in order that no prejudice may result to the principal debtor or to his surety, if the party who opposes the exception should be defeated, they can, afterwards, if they should be sued, protect themselves by the same exception within the time prescribed by law.

16. The Same to John, Praetorian Prefect.

It is an undoubted rule of law that the exception on the ground of money not having been counted out is applicable to all claims, either for the agreement for the payment of interest, or to other obligations in which mention is made of an oath. For what difference is there in an exception of this kind, whether the oath was or was not taken with reference to agreements for the payment of interest, or other written instruments against which an exception of this kind can be pleaded?

TITLE XXXI. CONCERNING SET-OFF.

1. The Emperor Antoninus to Dianensus.

The Senate decreed, and it has frequently been stated in rescripts, that there is ground for set-off in fiscal cases, where the same administration both owes and asserts the claim. This rule should be implicitly observed, in order to avoid confusion in different offices. Where, however, anything is proved to be due to you from the administration which you have mentioned, you shall immediately receive it.

2. The Same to Asclepiada.

As where something remains due on account of a judgment which has been paid, it cannot be recovered, so for the same reason it cannot be admitted to set-off. No one, however, doubts that anyone who is sued to enforce a judgment can demand a set-off of the money due to him from the other party.

3. The Emperor Alexander to Capita.

The judge having jurisdiction of the case shall order that what you allege is due to you from the government shall be set-off against the amount that you admit you are indebted to it, provided your indebtedness is not on account, or because of taxes, or money due for grain or oil belonging to the State, or tribute, or provisions; or you are not a debtor of the official having charge of the expenses of the government; or by reason of trusts for the benefit of a municipality.

4. The Same to Lucian.

If it is established that when two persons owe one another, set-off will take place by operation of law, instead of payment from the

time at which both parties began to be mutually indebted, so far as the amount of the two obligations agree; and interest will only be due for the excess of the indebtedness owing to one of them, where his claim has not been satisfied.

5. The Same to Honorata.

If it should be established that you are entitled to a trust out of the property of the person to whom you say you are indebted for a smaller sum, the equity of set-off excludes the computation of interest ; provided you prove that the claim which is due to you is larger than that which you owe.

6. The Same to Pollidens.

The documents by which it is provided that you have received what you deny has been delivered to you cannot bind you in opposition to the truth, and you may properly demand the justice of a set-off; for it is not equitable that you should be compelled to pay what it is established that you owe, before your demand for money lent has been answered; and you have still more ground to recover the property which you allege has been appropriated by your wife on account of divorce.

Given on the fifth of the Kalends of December, during the Consulate of Alexander, Consul for the third time, and Dio.

7. The Same to Euzosius.

Where the price of property sold is due to the vendor, the law of set-off will apply, for purchasers are not forbidden to oppose the set-off of the price, even against the Treasury.

8. The Emperor Gordian to Emeritus.

If your stepfather has become your debtor on account of crops taken from your land, and he brings suit against you for what has been left to you by your mother, judgment shall be rendered in favor of him who has the largest claim, and you will not unreasonably demand a set-off.

9. The Same to Eumenides.

Set-off cannot take place except with reference to what is due from the party against whom the action was brought.

10. The Emperors Diocletian and Maximian to Nicander.

As you allege that the land which was sold to you as free was, before the purchase, encumbered by a lien, and you have paid a certain sum to release it, if you should be sued for a debt before the Governor of the province, you can set off the amount which you paid, although it was not due.

11. The Same to Julian and Paulus.

If, having been compelled to do so by a magistrate, you appointed guardians for minors, and paid in their behalf a certain sum of money

due on account of a charge of the Chief Centurion of the Triarii, you are mistaken if you think that, if you should be sued by them, you cannot claim a set-off; no matter whether the sum which has been collected from you is as much as the guardians were liable for to their wards, or whether it is proved that you paid a larger sum on their account.

12. The Same to Cornelmnus.

If you have availed yourself of a set-off with reference to a debt, and pay the remainder, you can bring suit to recover your pledges, if you tender the amount and your creditors refuse to accept it, and, having sealed it up, you deposit it.

13. The Same, and the Csesars, to Bassus.

If you agreed with Mutian in writing that he should, by way of set-off, pay what you owed as public taxes, and that afterwards you would not demand what he owed you, and you yourself should pay the taxes referred to, you cannot recover the amount as not having been due, but you will have the right to collect the debt to which you were previously entitled.

14. The Emperor Justinian to John, Prsetorian Prefect.

We decree that set-offs shall take place by operation of law in all lawsuits, without making any distinction between real or personal actions.

(1) Hence We order that set-offs can be pleaded where the amount to be set off is clear, and not involved in doubt, but is susceptible of being easily determined; for it would be very unjust if, when the matter had been decided after many and various contests, the other party, who almost lost his case, could plead a set-off against a certain and unquestionable debt, and the hope of a judgment be excluded by subterfuges admitting of delay. Therefore judges must be careful not to admit set-offs too readily, or accept them with too much indulgence, but to adhere strictly to the rule; and if they find that they demand minute and protracted examination, they must reserve them for another decision; so that the present suit, which has almost entirely been disposed of, may be determined by a final judgment, with the exception of the action of deposit, in which, in accordance with the rule which We have already formulated, We have decided that there is no ground for set-off.

(2) The right of set-off is not granted to persons who are wrongfully in the possession of property belonging to others.1

1 Set-off did not exist at Common Law, but was borrowed from the jurisprudence of the Romans, to whom it was known as compensatio. In England, until the reign of George II, when a statute authorizing the employment of this method of extinguishing one obligation by means of another was enacted, a debt could only be permanently settled by its payment, or by a voluntary release from liability by the creditor. The Judicature Acts establish a distinction between a set-off and a counter-claim. "A counter-claim is different from a set-off for it is

TITLE XXXII. CONCERNING INTEREST.

1. The Emperor Antoninus Pius to Evocatus.

Where, after investigation, the agreement to pay interest is proved to have been legally made, even though it was not reduced to writing, it will still be due under the law.

2. The Emperors Severus and Antoninus to Lucius.

When the purchaser, to whom the possession of property has been delivered, does not tender the price to the vendor, even if he has placed the money on deposit, sealed up, he will be required by the rule of equity to pay interest.

3. The Same to Julian.

Although interest on money lent cannot be claimed without a stipulation to that effect having been made, still if it has been paid in accordance with the terms of an informal agreement, it cannot be recovered as not due, nor be credited upon the principal.

4. The Same to Honorius.

It has been established, and it is reasonable that interest can be demanded where a pledge is retained, even though no stipulation may

in the nature of a cross-action." (Wilson's Practice of the Supreme Court of Judicature IV, Page 51.)

Compensation, "debiti et crediti inter se contributio," was only available when the mutual obligations could be readily estimated at a pecuniary value; when they were both positively known to be due at the time; and when the objects through which the indebtedness was incurred were of the same nature. When an exception on this ground was pleaded, it had a retroactive effect, and became operative for the time when the right to employ it vested, and not from the date of the joinder of issue.

The privilege of compensation could not be exercised where suit was brought to recover property of which another illegally held possession, and thereby attempted to profit by his own wrong.

Under the English and American law, a party defendant is not permitted to take advantage of a set-off unless it is specially pleaded, and the facts upon which the counter-claim is founded enumerated in detail.

In the United States, set-off can only be employed in agreements for the payment of money, and when the amount of the reciprocal indebtedness is already known, or may be definitely ascertained. It is not applicable where an attempt is made by one party to extinguish an obligation incurred in a fiduciary capacity, by means of one for which another is individually responsible, or vice versa. As under the Civil Law, when one claim is larger than the other, judgment may be rendered for the amount in excess. Unliquidated damages are not susceptible of set-off, and it cannot be pleaded in actions for torts. Not only original judgments, but also such as have been assigned for valuable consideration, may be set off. This rule also applies to costs, whether the indebtedness sought to be cancelled arises from money borrowed, or court expenses or both. The failure of a defendant to avail himself of a valid set-off is not considered a waiver of his right, and he will still be entitled to collect his claim by suit, if he desires to do so; but if no good cause of action exists, advantage cannot be taken of the privilege. (Vide, Parsons, The Law of Contracts II, III, X.)—ED.

have been entered into, as pledges are liable for interest even under an informal agreement. This rule, however, does not apply to the case in which you are interested, for at the time of the contract it was agreed that a smaller rate of interest should be demanded, but afterwards, where the debtor promised to pay a higher one, the retention of the pledge could not be considered legal, as, at the time when the instruments were drawn up, it was not agreed that the pledge should be subject to this increase.

5. The Same, and the Csesars, to Sabinus and Others.

The exception based on an agreement is available against the creditor who demands a higher rate of interest under the terms of a stipulation, if it is proved that for some years he received interest at a lower rate; and, in accordance with this rule, your case can be defended against the municipal officials who bring suit on the note, if you can prove that the maternal aunt of your wards has always paid interest at five per cent, although she may have agreed to a higher rate.

6. The Emperor Antoninus to Antieneus.

If you have, in the presence of witnesses, tendered to your creditor the money due to her with the interest on the same, to secure the payment of which you gave her pledges, and, she having declined to accept it, you deposited the money sealed up, you will not be compelled to pay interest from the time when you made the tender. If, however, your creditor should be absent, you must tender the money in the presence of the Governor of the province.

7. The Same to Aristeus.

A creditor should prove his claim by the instruments evidencing the debt, and also show that he has stipulated for interest, if he can do so; for even if the interest has been voluntarily paid, this does not establish an obligation.

8. The Same to Theophorus.

Although when Bassa borrowed a sum of money she promised to pay interest at a certain rate to Menophanes, and if she failed to pay it within a certain time, she agreed to pay a higher rate (but one that was legal) ; still, if the creditor, after the time prescribed by the note, receives the same interest as formerly, and does not demand that interest at a higher rate be paid to him, and it can be proved by this that he did not refuse interest at the lower rate, it must be computed at the rate at which the creditor continued to collect it.

9. The Same to Probus.

It was not your fault that you did not pay interest at the lower rate within the prescribed time, because the sons of the creditor were unwilling to receive it through their guardians; and if you can prove in court that this was done, interest at a higher rate will not be

required of you for the time during which it appears that you were not to blame. If, however, you have deposited the principal, you will not be compelled to pay interest from the time when it appears that this was done.

10. The Same to Donatus.

Where the interest paid at different times amounts to double the principal, this will be of no advantage to the debtor; for it is only when the interest at the time of payment amounts to more than the principal that it cannot be collected.

11. The Same to PopUius.

When a creditor, who declines to receive money in payment of a debt to which he is legally entitled, collects the crops of lands which have been hypothecated to him, he diminishes the principal to the extent of the value of the said crops.

12. The Emperor Alexander to Tyrannus.

The excess value of wheat or barley, above what has been lent, must be surrendered even under an agreement without consideration.

13. The Same to Eustachia.

It is certain that an account must be taken of the interest in bona, fide actions as well as in those based on voluntary agency. If, however, the case has been terminated by a decision which awarded a smaller sum than that which was due, and interest was not added, and no appeal was taken, what has been decided cannot be revoked; nor can interest for the time which has elapsed after the case was decided be demanded under any law, unless this was provided for by the judgment.

14. The Same to Aurelius.

If your wife lent a sum of money with the understanding that she should live in the house of her debtor instead of paying interest, and she did so, as was agreed upon, and having leased the house, she did not collect the rent, the question cannot be raised that she could have collected more rent than the legal rate of interest amounted to. For although the house could have been leased for more than the principal, the contract for interest was not, for that reason, unlawful, but the house seemed to have been rented for less than it was worth.

15. The Emperor Gordian to Claudius.

You state that your wife borrowed the sum of a thousand aurei under the condition that if she did not pay it within a certain time she would pay fourfold the amount which she had borrowed; but the rule of law does not permit the condition of a contract of this kind to provide for the payment of a penalty in excess of the amount of legal interest.

16. The Same to Sulpitius.

As you say that you have received not grain, but money to be repaid with interest, under the condition that a certain amount of wheat should be delivered, instead of money, and that in case the grain was not delivered on the day agreed upon, you contend that you will be compelled to deliver an additional number of measures of grain, in fraud of the lawful amount of interest, you can avail yourself of any proper defence against this dishonest demand.

Extract from Novel 34, Chapter I. Latin Text.

Moreover, anyone who lends a farmer grain or money under the condition that he will receive for every measure the eighth part of a measure, or for every solidus one siliqua, as interest, must, by all means, return the land or anything else which he has received by way of pledge. If he should collect anything more than what is above stated he shall absolutely lose his claim.

17. The Emperor Philip to Euxena.

If your mother encumbered her land to her creditor under the condition that he could gather the crops instead of receiving interest; this agreement cannot be rescinded under the pretext that the value of the crops obtained amounted to more than the interest, because of the uncertainty what the value of the crops would be.

18. The Same to Castor.

In order to dispose of the differences of the ancient law, it has been decided after careful deliberation that interest which was not due can be recovered, even if it was not paid before the principal, and on this account could not be credited upon it, but was paid after the creditor had received the principal.

19. The Same to Hyrenia.

After issue has been joined, tender the principal of the debt with the legal interest to your creditors, and if they refuse to accept the money, deposit it sealed up in some public place, in order to avoid the payment of legal interest. In this instance, a public place must be understood to be either a sacred temple, or one in which a competent judge, after having been applied to, may decide that the money shall be deposited. When this has been accomplished, the debtor shall be released from liability, and the right of the creditor to the pledges abolished; as the Servian Action plainly states that pledges cannot be held if the money has been paid, or the creditor is to blame for this • not having been done.

This rule should also be observed in the transportation of money, for a praetorian action will lie in favor of the creditor for its collection, not against the debtor (unless he has received it), but against the depositary.

20. The Same to JElius.

Relief is granted to mandators and trustees by the Sacred Constitutions, which forbid interest to be collected on money lent beyond a certain rate, and you can avail yourself of them if you are sued either as mandators or trustees.

21. The Same to Chresimus.

If you agreed to pay interest and gave a pledge as security, and the money was counted out to you, and either afterwards, or before making payment, you did not indicate on what part of the debt you wished credit to be given, your creditor will have the right to credit the payment which you made upon the interest.

22. The Same to Carinus.

When pledges have been delivered, interest which could not have been collected without stipulations can be retained under the agreement; but as you state that there was no contract of this kind made, but that only a certain sum was agreed to be paid as a penalty, you perceive that, by the rule of law, nothing more can be collected, and that you will be compelled to surrender the pledges.

23. The Same to Jason.

Where oil, or any other products of the soil are lent, the uncertainty of their value allows an increase of interest to be added to the quantity.

24. The Same to Glaucia.

If your mother is of legal age, and has transacted your business, as she was obliged to use all proper diligence, she can be compelled to pay interest on your money which she is proved to have had charge of.

25. The Emperor Constantine to the People,

We order that legal interest can be paid or promised for gold, silver, and clothing, where the loan is evidenced by a note.

26. The Emperor Justinian to Menna, Prsetorian Prefect.

We order that those who have been barred in a principal, a personal, or an hypothecary action, by the prescription of thirty or forty years, cannot raise any question with reference to interest, crops, or any time which has expired, under the pretext that they desire interest to be paid to them only for the time not included in the thirty or forty years which have elapsed, on the ground that their rights of action arise each year. For the principal action no longer existing, it is entirely unnecessary for the judge to take cognizance of any question relating either to the interest or the crops.

(1) We considered it necessary to promulgate a new and general law regulating the amount of interest, as We think the ancient law on this subject to be severe and extremely burdensome. Therefore,

We order that illustrious persons, as well as those of higher rank, shall not be permitted to stipulate for interest exceeding the rate of four per cent, whether the contract be for a large or a small amount. Bankers, and those who conduct any lawful business, shall be limited in their stipulations to eight per cent. With reference to contracts for the transportation of coin, or for loans at interest of other articles than money, We order that it shall not be lawful to stipulate for, or to exceed the rate of twelve per cent, although this was permitted by the ancient laws. Other persons, however, can only stipulate for interest at six per cent, and this rate of interest can, under no circumstances, be exceeded in any of those cases in which interest is ordinarily collected without a stipulation; and no judge shall be permitted to increase the prescribed rate on account of any custom which may be observed in that part of the country.

If anyone should violate the provisions of this constitution, he shall not be entitled to any action to collect interest over and above the legal rate, and if he should receive it, he shall be compelled to credit it on the principal; and creditors are forbidden to deduct or retain any of the money lent at interest under the pretext of siliqute or sportulse, or for any other reason whatsoever. If anything -of this kind should be done, the amount of the original debt shall be diminished by the sum that the creditor has received, so that he shall be prohibited from collecting this portion of the debt, as well as the interest. With a view to preventing dishonest schemes of creditors who, being forbidden by this law to stipulate for higher interest, make use of other persons for this purpose, who are not prohibited from doing so, We order that if anything of this kind should be attempted, the interest shall be computed as would have been done if the person who made use of the other himself had concluded the stipulation, and in this instance We decree that the oath shall be tendered.

27. The Same to Menna, Prsetorian Prefect.

For the purpose of disposing of the improper interpretation which certain persons have applied to the law by which We have established the rate of interest, We order that those who have stipulated for a higher rate before the promulgation of that law shall reduce their claims in accordance with the one prescribed by it, from the time when the law was published; but that up to that date they shall have the right to collect interest in accordance with the tenor of the stipulation.

(1) We by no means permit more than double interest to be collected, not even where pledges have been given to the creditor to secure the debt, under which circumstances certain ancient laws authorized . more than double the interest to be collected.

We decree that this rule shall be observed in all bona fide contracts, and in all other cases in which interest can be collected.

28. The Same to Demosthenes, Prsetorian Prefect. It was provided by the ancient laws, but not explicitly enough, that interest on interest could not be collected from debtors; for if it was

permitted to add it to the principal and stipulate for interest on the entire amount, what difference would it make for the debtors from whom interest on interest was actually collected? Certainly, this difference does not exist in the things themselves, but only in the phraseology, and therefore We clearly provide by this law that no one shall be permitted to add interest to the principal, either for past or future time, or to stipulate for interest to be paid upon it. When, however, this law is obeyed, interest will always remain interest, and there will be no augmentation of other interest, and the only accrual will be what is derived from the original principal.

TITLE XXXIII. CONCERNING MARITIME LOANS.

1. The Emperors Diocletian and Maximian to Honoratus.

It is clear that money transported by sea, which is at the risk of the creditor, should be exempt from the law relating to interest only until the ship has arrived at her destination.

2. The Same to Chosimania.

As you state that you have lent money under the condition that it shall be repaid in the Imperial City of Rome, and allege that the uncertainty of the risk due to the perils of navigation has not been assumed by you, there is no doubt that you are not entitled to collect interest above the legal rate on the money loaned.

3. The Same to Junia.

As you state that you have negotiated a maritime loan under the condition that after the voyage, which your debtor stated that he was about to make to Africa, the ship having anchored in the harbor of the Salonitanians, he agreed to pay you the money, so that you would only bear the risk of the voyage to Africa, and that through the fault of your debtor the course of the vessel was not directed towards the place agreed upon, and, he having purchased unlawful merchandise, the cargo of the ship was confiscated by the Treasury, the rule of public law does not permit that you should bear the loss of the merchandise which is stated was not caused by a tempest, but was due to the inveterate avarice and unlawful boldness of your debtor.

4. The Same to Eucharistus.

The loss of money during its transport by sea, when it was not lent at the risk of the creditor, does not render the debtor liable before the ship arrives at her destination, but the debtor will not be released from the responsibility for loss by shipwreck, where no agreement of this kind was made.

TITLE XXXIV.

CONCERNING THE ACTION ON DEPOSIT, AND THE COUNTER

ACTION.

1. The Emperor Alexander to Mestenus.

Where, through an attack by robbers or some other accident, certain ornaments deposited with a person who was killed are lost, the heir of him who received the deposit will not be responsible, as he is only liable for fraud or gross negligence; unless it was otherwise agreed upon. If, however, under the pretext of robbery having been committed, or of some other accident, the property held by the heir, or of which he has fraudulently relinquished possession, is not returned, the action of deposit, as well as that for the production of property, and one for the recovery of the same, will lie.

2. The Emperor Gordian to Celsus.

In the action of deposit, as in other bona fide actions, interest is usually calculated from the day when the party is in default.

3. The Same to Austerus.

If you bring the action of deposit against him, you will not unreasonably demand that he pay you interest, for he should congratulate himself that you do not bring the action of theft, as anyone who knowingly and designedly, and without the consent of the owner, converts to his own use property which has been deposited with him, becomes guilty of the crime of theft.

4. The Same to Timocrates.

When anyone who has received money on deposit makes use of it, there is no doubt that he should pay interest. Where, however, he is sued in the action of deposit, judgment is only rendered for the amount of the principal, and you cannot bring another suit for the interest, as there are not two actions, one for the principal and the other for the interest, but only one; and where judgment has been rendered in it, a renewal of the action will be barred by the exception on the ground of res judicata.

5. The Emperors Valerian and Gallienus to Claudian.

As you allege that you have deposited certain documents with your adversary in order that you may receive payment of the remaining money due for rent, if you have complied with what was agreed upon, you can bring suit to recover the property sequestered. Even though the said documents should not be returned to you, if you have paid all that was due under the contract to the person from whom you rented the premises, you will be protected by the said payment.

6. The Emperors Diocletian and Maximian to Alexander.

He with whom you allege that the two parties to the compromise have deposited the evidence of the same, or other documents, must observe the condition under which he received them.

7. The Same to Atticus.

Your claim does not conform to the rules of law, for if you have charge of a sum of money, and lent it to others, the instrument by which you acknowledge that it is to be repaid to you is evidence against you, and you are guilty of dishonesty in refusing to make restitution to the person entitled to it.

8. The Same to Alexander.

If anyone who has received a deposit of money from you lends it either in your own name or that of someone else, it is perfectly clear that he must not only comply with his contract, but that his heirs will be liable to you. No action, however, will lie in your favor against the person who received the money, unless the actual sum is in existence, for then you can avail yourself of the action for recovery against the possessor.

9. The Same to Menophyllus and Others.

As an estate represents the person of the former owner, you can sue the heirs of the depositary before the Governor of the province for property which was deposited with him in good faith by a slave belonging to the estate, before you succeeded your father.

10. The Same, and the Caesars, to Septima.

Where anyone does not return a deposit, and is sued, and has judgment rendered against him in his own name, he will be compelled to make restitution, and runs the risk of being branded with infamy.

11. The Emperor Justinian to Demosthenes.

When anyone receives money or other property as a deposit, and refuses to surrender it to him who deposited it, he can be compelled by all legal means to return it immediately, and cannot plead any set-off, deduction, or exception of fraud, to avoid doing so, on the ground that he himself has certain personal, real or hypothecary causes of action against him who deposited the property, as he did not receive the deposit under the condition that he could retain it for what had not been paid, so that a contract entered into in good faith would end in perfidy.

Where, however, property was deposited by both parties with one another, the impediment of set-off does not arise in this case either, but the property or money deposited by each of them must be returned as soon as possible without the interposition of any obstacle, beginning with the one who first demands it, and afterwards his legal rights of action shall be restored to him unimpaired. This should take place (as has already been stated) when the deposit has been made by one of the parties, and a set-off is claimed by the other; so that all legal rights remaining unimpaired, the property or the money deposited may be returned in its original condition.

(1) When, however, notice in writing, which was not inspired by deceit or fraud, is sent by a third party to the depositary directing him

not to return the deposit, and the latter states this under oath, he who made the deposit, after having furnished good security that he will defend the case, shall be entitled to recover the property deposited without delay.

Extract from Novel 88, Chapter I. Latin Text.

It has, however, already been provided that no outside person can forbad a depositary to return the property, and if this is done, he who made the deposit, though technically in possession, can be sued by him who was responsible for the prohibition. But if the law should be violated, and any loss be sustained by the person who suffered violence, he who prohibited the return of the deposit shall be required to make it good, and shall also be liable for interest at four per cent from the time when issue was joined. He, also, who prevents a tenant from paying rent, or a public official from furnishing bread, shall be liable to the same penalty.

12. The Same to John, Praetorian Prefect.

For the purpose of abolishing a superfluous distinction adopted by the ancients, We decree that if anyone should deposit a certain weight of gold or silver, either manufactured or in bulk, and appoint several heirs, and one of them should receive from the depositary the share to which he was entitled, and another should fail to do so, whether he was prevented by some accidental circumstance and the depositary afterwards met with misfortune, or the latter lost the deposit without being guilty of fraud, the co-heir will not be permitted to proceed against his co-heir and indemnify himself out of his share for what he himself was unable to obtain; just as if what the said co-heir had received was owned in common; for there is no doubt that if a certain sum of money was deposited, and one of the co-heirs should receive his share, he has a right to it, and the other ought not to claim it.

It does not seem to Us that the one who has received his share of the property either in bulk, in ingots, or in money, should be liable, and his diligence pay the penalty for another's negligence; for if the other heir had taken advantage of the opportune time as his co-heir did, and both had received their shares, no ground would be left for subsequent alterations.

TITLE XXXV.

CONCERNING THE ACTION OF MANDATE, AND THE COUNTER ACTION.

1. The Emperors Severus and Antoninus to Leonidas.

You can avail yourself of the action on mandate for the collection of both principal and interest against the person whose business you transacted, when you have expended your own money in doing so, or have borrowed money from others for that purpose. You can also apply to the Governor of the province with reference to the salary promised you by your employer.

2. The Same to Marcellus.

As you state that your father paid a certain sum of money as surety, you are entitled to an action on mandate by which you cannot only recover the money, but also the pledges given as security for the obligation.

3. The Same to Germanus.

If your father directed you, being your own master, t6 sue his debtors, he himself could, if present, bring an action against them, just as if he had not employed you to do so. Therefore, if any proceedings should be instituted by him for this purpose in court, there is no reason to require them to be set aside.

4. The Emperor Alexander to Vulneratus.

Even if those who have appointed you their attorney to conduct their cases on appeal should be defeated, if you were not to blame for this, you can bring a counter action on mandate against them to recover the reasonable expenses which you incurred in the matter.

5. The Same to Gallianus.

If your sister's husband, whom you have appointed your attorney, is unwilling to demand for you the possession of the property, you should proceed against him; and you will probably gain your case if you can prove that you directed him to bring suit for the possession of the property, and he neglected to do so.

6. The Emperor Gordian to Socibius.

When anyone becomes surety for a debtor with his consent, the latter can be sued in an action on mandate after the money has been paid by the surety, or judgment rendered against him.

7. The Same to Aurelian.

Where, in order to carry out the written directions of the money-broker, you lent money to the person who delivered you his letter, you will not only have a right to bring a personal action for recovery against him who received the borrowed money from you, but also the action on mandate against him whose order you obeyed.

8. The Emperors Valerian and Gallienus, and the Csesar Valerian, to Lucius.

If the father of certain minors directed you to lend money to his slaves, to be employed for the benefit of his property, and if, in addition to this, you, under his direction, gave pledges as security, you can sue the minors in the action on mandate after the death of their father, and enforce the right attaching to the pledges, if payment should not be made.

9. The Emperors Diocletian and Maximian to Marcellus.

As you allege that your case has been endangered by the act of your attorney, an action on mandate will lie in your favor against him.

10. The Same to Papius.

If you have appeared either as surety or mandator for the party against whom you filed your petition, and judgment has not been rendered against you on this account, you cannot prove that he afterwards began to waste his property to such an extent as to give you just cause for apprehension, and that, in the beginning, you assumed the obligation in order to be able to sue him before payment was made; as it is certain that, by no rule of law, you can compel him to make payment before you yourself have satisfied the creditor.

Moreover, it is evident that where a trustee or a mandator, being entitled to an exception, lost his case through an unjust decision of the judge, and, contrary to good faith, neglected to take an appeal, he cannot bring the action on mandate.

11. The Same to Gaius.

An attorney will be liable not only for fraud but for negligence, both in cases where he has transacted business, and where he has undertaken to do so, and to be responsible not only for money which has been collected under the mandate, but also for any that had not been collected; and account should be taken of the expenses which he has incurred in good faith.

12. The Same to Firmus.

As you assert that you stated what should be done with reference to certain business which you wished to be transacted, it is proper that your attorney should comply with your directions in good faith. Therefore, if, contrary to the terms of the mandate, he sold the tract of land belonging to you, and you did not subsequently ratify the sale, you cannot be deprived of the ownership of the property.

13. The Same to Zosimus.

It is plainly stated by the law that an attorney is liable for fraud and every kind of negligence, but not for unforeseen accidents.

14. The Same to Hermianus.

If, in accordance with the mandate of Tripho and Felix, you purchased horses with your own money, or if, they having been delivered to you in payment by your own debtor, you voluntarily transferred them to one of the above-mentioned parties with the consent of both, good faith requires that they, having been sued in an action on mandate, should comply with their contracts.

15. The Same to Precatius.

A mandate is absolutely terminated by the death of the mandator.

16. The Same to Uranius.

Where money has been given to buy merchandise, and he who received it for that purpose abuses the confidence of his employer, he will be liable for any damage sustained by the latter.

17. The Same to Gorgonius.

A salary based upon an uncertain promise cannot be recovered by law.

18. The Same to Tuscianus.

Where payment has been made to the agent by someone who directed money to be lent, he can properly demand to be reimbursed what he paid by him in whose behalf he intervened, or his heirs, together with interest, after the party or parties have been in default..

19. The Same to Eugenius.

You cannot be compelled to pay interest above the legal rate of the price of property which you received for sale by virtue of a previous mandate; whether the interest was based on a stipulation or on default, even though pledges are proved to have been given.

20. The Same to Epagathus.

If you have purchased a right of action contrary to law, you will in vain demand compliance with such a prohibited agreement; but if you have gratuitously accepted a mandate, you can legally ask that the bona fide expenses incurred be refunded to you.

21. The Emperor Constantine to Volusian, Praetorian Prefect.

In cases of mandate, not only the money which is the especial object of the action on mandate, but also the risk of loss of reputation is at stake; for anyone who is the owner, and has control of his own property, does not transact all his business, but the greater portion of it, according to his own will. The affairs of others must, however, be attended to with the greatest care, and nothing connected with their administration which is neglected or improperly done is free from blame.

22. The Emperor Anastasius to Eustaehius, Prsetorian Prefect.

By two different reports which have been made to Us, We have ascertained that certain individuals, being desirous of obtaining the property and fortunes of others, have exerted themselves to have rights of action assigned to them by third parties, and in this way litigants are subjected to many annoyances; and as it is certain that, so far as undoubted obligations are concerned, men are more desirous of claiming their own rights than of transferring them to others, We order by this law that hereafter attempts of this kind shall be prohibited.

There is no doubt that those should be considered the purchasers of the rights of action of others who desire assignments of this kind to be made to them, so that if anyone, after having paid money, should obtain such an assignment, he shall only be permitted to bring the actions which he has purchased to the extent of the amount of money which he has paid, even though the term "sale" has been inserted in the instrument evidencing the assignment; with the exception, however, of such assignments of rights of action referring to an estate

which are usually made between heirs, and those which either a creditor or a party in possession of the property of another has received, either in the discharge of a debt, or on account of the protection and care of property which has been entrusted to him, as well as those made between legatees or beneficiaries of a trust, to whom either debts, rights of action, or other property has been left, for these things are often necessary.

The purchaser of a lawsuit does not come under this rule (as has been previously stated), but is one who acquires the rights of action of another by the payment of money. Where, however, an assignment is made as a donation, all persons are hereby informed that in such a case there is no ground for the application of this rule, but that the ancient laws must be observed; so that not only the assignments for the causes excepted and enumerated above, but also such as have been made, or are to be made, may acquire all the force of rights of action assigned without any restriction.

23. The Emperor Justinian to John, Prsetorian Prefect.

A constitution which abounded in humanity and benevolence was promulgated by the most just Emperor Anastasius, of Divine memory, to the effect that no one should become liable for the debt of another by an assignment made to him, and that nothing more could be recovered from a debtor than what he had paid to the party making the assignment, except in certain cases which are distinctly specified in this same law. As, however, those engaged in acquiring lawsuits are not inclined to observe this beneficent regulation, but devise means to evade it by transferring a certain part of the debt which was sold to another creditor afterwards, and assigning the remaining portion as a donation, We, for the purpose of generally confirming the Constitution of Anastasius, do hereby decree that it shall not be lawful for any person to dispose of any portion of a debt by a sale, and then transfer the remainder as a donation; but if the party in question desires to absolutely donate the entire debt, and to transfer the rights of action as a donation, he shall not receive money secretly and with clandestine artifice, in order to publicly effect the pretended donation, but he shall make it at all times absolutely and without any pretense, for We do not prohibit assignments of this kind.

(1) When, however, anyone attempts to perform some act secretly and receives money, and sells a part of the rights of action, and pretends to donate the remainder either to the person who has purchased the other part of the same, or to someone else who has been introduced for that purpose (as We have learned is frequently done), We absolutely annul all corrupt schemes of this kind, so that the purchaser, cannot receive more than he himself has actually paid under the contract; but that all over and above this amount which was transferred by a fictitious donation cannot be collected by either party, so that neither he who assigned the rights of action nor he to whom they were transferred shall obtain any profit or reward, or will be entitled to bring any action either against the debtor or his property.

(2) If, however, any person should pretend to have made a donation of the entire debt, and should receive something secretly as a consideration, in this instance he can only collect what he is proved to have lent, and when this has been paid by the debtor, neither the latter nor his property can be molested by virtue of this pretended donation.

(3) This salutary remedy was provided by Anastasius during his reign, for the benefit of debtors, but, notwithstanding this justice, there were men who were shrewd enough to think it could be evaded. But lest We may appear to countenance an enactment too severe for the benevolence of our times, We decree that the present law shall only be applicable to future cases, and that everything which has been devised against the Constitution of Anastasius shall hereafter be annulled by this Our Law.

TITLE XXXVI.

CONCERNING A SLAVE WHO HAS DIRECTED A STRANGER TO PURCHASE HIM.

1. The Emperors Diocletian and Maximian, and the Csesars, to Dionyna.

If a slave should request a stranger to purchase him, even though it may not be believed that a right of action on mandate will arise on account of the act of the slave (because a freeman cannot give such a mandate), nor on account of the master, as the act of anyone who orders another to purchase something from himself is void; still, for the excellent reason that this is not done in order that a right of action on mandate may arise, but that such an action will lie on account of the mandate contained in another contract, it has been decided that an obligation of this kind is acquired by the master. Therefore, if, without the knowledge of your master, you'direct someone to purchase you, and you furnish money out of your peculium for this purpose, and it is paid by the purchaser, you can, by no means, acquire freedom by an act of this kind. For if you, being a female slave, have not been either delivered or manumitted, it is settled that your master will have the right to avail himself of the counter actions of mandate and purchase, to recover the price. It is, in fact, left to his choice either to recover you his slave, or the price for which you were sold, for as the money was paid out of the peculium, which belonged to him, it could not release the purchaser from liability for the obligation.

TITLE XXXVII. CONCERNING THE ACTION OF PARTNERSHIP.

1. The Emperors Diocletian and Maximian, and the Csesars, to Aurelius.

It has been decided that a partnership can be contracted where one of the parties furnished money and the other labor.

2. The Same Emperors and Csesars to Pantonius.

-As you allege that you and your patron have purchased a field together, if both you and he have been placed in possession, the rule of law requires that the ownership of said land shall belong to you conjointly. However, as you say that the price as well as all the expenses have been paid by you, and that your partner has not contributed his. share, you can, by an action of partnership, recover whatever he should have paid on this account.

3. The Same Emperors and Csesars to Victorinus.

As good faith should prevail in partnership contracts, it is demanded by the rules of equity that the profits should be equally divided between the partners; and if the Governor of the province should find that your father belonged to a partnership organized for the working of salt-pits, and died before having received his share of the common profits, he will order that portion of them to which you are actually entitled to be paid to you.

4. The Same Emperors and Csesars to Celer.

If it was agreed between you and Favia that a division of all the property to which you are entitled under the law of partnership, or under a stipulation for compromise, should be made equally between you, the division will be valid; and it makes no difference whether the person obligated executed a will, or died intestate.

5. The Same Emperors and Csesars to Theodore.

We decree that a partnership shall last as long as the consent of the parties to its continuance exists. Hence, if you have acquired a right of action on partnership, you will not be prevented from bringing it before a judge having jurisdiction.

6. The Emperor Justinian to John, Prsetorian Prefect.

It was doubted among the ancients whether a partnership could be formed under a condition, for instance, that the partnership should be formed if Such-and-Such a person should become consul. In order that hereafter no doubt may arise on this point, as was the case in former times, We decree that a partnership cannot only be formed absolutely, but also conditionally, for the wishes of persons who make legal contracts should by all means be considered.

7. The Same to John, Prsetorian Prefect.

For the purpose of removing the doubts of the ancient authorities, We decree that the curator of an insane person shall have power to dissolve a partnership of which the insane person is a member, and renounce all connections with his partners, if he should see fit to do so. And We grant him lawful authority, just as in all other contracts, and permit him in a case of this kind to provide in a proper manner for the benefit of the said insane person.

TITLE XXXVIII.

«

CONCERNING THE CONTRACT OF PURCHASE AND SALE.

1. The Emperors Valerian and Gallienus to Paulus. Sales which are made in some other place than that in which the property is situated are not, for this reason, considered void.

2. The Emperors Diocletian and Maximian to Avitus.

It is evident that consent is required for purchase and sale, and that an insane person is not capable of consent. There is no doubt, however, that insane persons, who are more than twenty-five years of age, can make sales and any other contracts during their lucid intervals.

3. The Same to Valeria.

When a fictitious contract of sale is made in order to effect a donation, it will be of no force or effect. If you have placed anyone in possession of property under the pretext of a sale, but really as a donation, in consideration that he will support you, such a donation, when perfected, cannot readily be rescinded, and it is proper for you to comply with the condition which you stated was imposed when you donated your property.

4. The Same to Lucian.

You say that you purchased from the heir of the donor the property which she gave you, but you should be aware that your title to the same cannot be doubled; hence you have made your purchase in vain, as you had already become the owner by gift and delivery, and could obtain no additional advantage, unless it is proved that the title did not vest in you by virtue of the donation. And if, as you allege, all the property of the donor was given and delivered to you, a sale made by the son of his mother's property can be maintained, even if the donation was perfected, as the son could set this aside by filing a complaint that the will was inofficious.

5. The Same to Gratia.

As a guardian himself is forbidden to purchase openly and in good faith any of the property of his ward which can be sold, there is much more reason why his wife should not be permitted to do so.

6. The Same to Lucretius.

If Gaudentius transferred the ownership of a slave to your mother by a sale, and without fraud, her rights are in no way prejudiced for the reason that marriage and divorce are alleged to have afterwards taken place between them. Therefore you will not be prevented from bringing an action to recover the slave, if you prove that you have succeeded your mother.

7. The Same to Piso.

If your mother falsely asserts that she received as a donation a female slave whom she herself had previously bought from her second

husband, the pretense of this simulated donation can neither confirm her ownership nor deprive her of it.

8. The Same to Diogenes.

If you have actually sold your vineyard, and not given it away, and the purchase-money has not been counted out to you, you will be entitled to an action to recover the price of the same, but not one to recover any articles which you may have donated.

9. The Same to Severus.

A purchase or a sale made without a price is void. If, however, the price has not been paid, but possession has been delivered to the purchaser, a contract of this kind is not considered invalid; and therefore the person who made the purchase is none the less entitled to possession because he refuses to pay the price which he had agreed to give. When, however, delivery follows the sale of a tract of land made by way of donation, as no action will lie for the recovery of the price, the donation is perfected.

10. The Same to Georgius.

If your mother bought her own land, believing that it was a part of the estate of your father, as the purchase of one's own property will not stand, and you allege that this one is fictitious, an agreement of this kind cannot change the truth, or prejudice your mother's rights.

11. The Same to Paterius.

The prayer of the petitioner to be permitted to purchase or sell property against the consent of the party in possession of the same is not founded on just grounds.

12. The Same to Paternus.

A purchase is none the less complete for the reason that the purchaser did not receive a surety, or that an instrument showing that the property was unoccupied, was not drawn up; for anyone who takes possession with the consent of the vendor is legally the possessor. Where, however, it is proved that the price has not been paid, it can be demanded; for the desire of one of the parties to withdraw from the contract, although manifested immediately after it has been entered into, will not rescind it if it was executed with the consent of all concerned.

13. The Same to Julian.

The obligation of a contract for purchase or sale, which is drawn up under the condition that it will be dependent upon the will of the vendor or purchaser, is void, because it does not necessarily bind the contracting parties. Therefore neither the owner nor anyone else can be compelled to sell his own property under an agreement of this kind.

14. The Emperors Valentinian, Theodosius, and Arcadius to Fabian, Prefect of Illyria and Italy.

Near relatives were formerly permitted to exclude strangers from a purchase, so that persons could not voluntarily dispose of property which they desired to sell; but, for the reason that this seemed to cause serious injury (which was veiled by a vain pretext of honesty) by compelling men to alienate their property against their wishes, the former law being abolished, everyone can now, according to his own inclination, either seek or accept a purchaser, unless the law especially prohibits certain persons from doing so.

Given on the sixth of the Kalends of June, during the Consulate of Tatian and Symmachus, 391.

15. The Emperor Justinian to Julian, Prtetorian Prefect.

A serious doubt arose among the ancient authorities with reference to contracts of sale, where anyone made a purchase under the condition that the property should be sold for the price at which another would say that it was worth. We, intending to dispose of this doubt, do hereby decree that when an agreement of this kind, namely, that the sale shall be for the price that a third party may put upon the property is entered into, the sale shall be void, if made under such a condition; and when he who was mentioned states the price, and it is paid in accordance with his estimate, the sale shall take effect, whether the contract was reduced to writing or not; for where an agreement of this kind is reduced to writing, it will, in accordance with the provisions of Our Laws, be in all respects complete and absolute.

If, however, the person referred to should be unwilling or unable to fix the price, then the sale will be void, no price having been determined upon; and that neither oneiromancy nor divination shall, under any circumstances, hereafter be resorted to, to ascertain whether the contracting parties who made such an agreement selected any certain person, or relied upon the judgment of a reputable citizen; for the reason that it is impossible to place any confidence in such expedients, and We abolish them by the present law.

We decree that this rule shall also apply to leases of the same character.

TITLE XXXIX.

CONCERNING THE INHERITANCE OR SALE OF RIGHTS OP

ACTION.

1. The Emperors Severus and Antoninus to Geminius.

It is absolutely certain that where an estate is sold in the name of the Treasury, the purchaser is liable for the debts, and the Treasury is not liable to the creditors of the estate.

2. The Emperor Antoninus to Florian.

The rule of law requires that you answer the creditors of the estate, as well as the legatees or beneficiaries of trusts who may bring

actions against you; and that, on the other hand, you, in your turn, can proceed against the person to whom you sold the estate. It will, however, be too late to ask him to furnish you security, as this was not included in the contract at the time when the estate was sold. For even though someone made the purchase under the condition that he would satisfy the creditors of the estate, still, if he is unwilling, he cannot be compelled to accept actions brought on account of the estate.

3. The Emperor Alexander to Timotheus.

The sale of a claim can be made, even without the knowledge or consent of the party against whom suit is brought.

Given on the fifth of the Ides of February, during the Consulate of Maximus, Consul for the second time, and .ZElianus.

4. The Same to Diogenes.

He who is not yet certain of the value of the estate, but, having been persuaded by the purchaser, sold it for a small sum of money, cannot be sued in a bona fide proceeding, and compelled to deliver the property, or assign his rights of action, for he can also legally bring suit to recover the property. , 5. The Same to Onesimus.

The purchaser of an estate, after the rights of action have been transferred to him, must make use of the same ones which the person whose place he occupies was entitled to; even though it was agreed that the praetorian rights of action against the debtors of the estate should be assigned to the purchaser.

6. The Same to Pomponius.

Anyone who has sold you an estate still remains the owner of the same until he delivers you the property, and hence by selling it to others he can transfer the ownership. But as he has broken the faith of the contract, if he should be sued in an action on purchase, he can be compelled to indemnify you for any loss which you may have sustained.

7. The Emperors Diocletian and Maximian to Manassa.

After it was settled that the contracts of debtors could be given in pledge, it seemed to be the rule that equitable actions could be granted to the creditor himself who made the demand (as has already been decided) after the sale of the claim.

8. The Same Emperors and Csesars to Julian.

By the sale of the claim the ownership of the property encumbered does not pass to the purchaser, but he either is appointed an attorney in his own behalf, or an equitable action, as in the case of a' creditor, is granted in accordance with what has already been established.

9. The Emperor Justinian to John, Praetorian Prefect.

It is a certain and unquestionable rule of law that anyone who has purchased a real action can avail himself of his right, just as he who

has purchased a personal action can do, and that he will be permitted to proceed legally in his own name. For as the designation is a general one, and is applicable to both real and personal actions, and among the ancient authorities was used to indicate both, there is no reason why any distinction should be made between praetorian actions of this kind.

TITLE XL.

WHAT PROPERTY CANNOT BE SOLD, AND WHAT PERSONS ARE FORBIDDEN TO SELL OR PURCHASE IT.

1. The Emperors Gratian, Valentinian, and Theodosius to Faustus, Count of the Sacred Largesses.

No private person shall have the right to dye either silk or wool with the colors called blatta, oxyblatta, or hyacinthina, or sell it after it has been dyed. If anyone should sell wool dyed with the colors aforesaid, he is hereby notified that he will incur the risk of losing his property and his life.

2. The Same to Toriobandus, Duke of Mesopotamia.

We order, as has already been decreed, that all barbarians, excepting the Count of Commerce, shall be deprived of the right to purchase silk.

3. The Emperors Arcadius and Honorius to the Senate and the People.

For the reason that grain destined for the public is said to be sometimes sold on various coasts, the vendors and purchasers of such merchandise are hereby informed that they are liable to capital punishment, and that commercial contracts of this kind made with a view to defrauding the public are prohibited.

4. The Emperors Honorius and Theodosius to Faustus, Praetorian Prefect.

In order to prevent the grain intended for Our most devoted army from being appropriated for the benefit of others, We order by this law that anyone who shall engage in this kind of traffic, if he is of high rank, shall be proscribed, and incur the loss of all his property, and that persons of inferior station shall suffer capital punishment.

TITLE XLI. WHAT PROPERTY SHOULD NOT BE EXPORTED.

1. The Emperors Valens and Gratian to Theodore, General of the Army.

No one shall have authority to transport to the country of the barbarians either wine, oil, or other liquids, either for the purpose of consumption or for commercial purposes.

2. The Emperor Martian to Aulus, Prsetorian Prefect.

Let no one presume to sell to barbarians of any race whatsoever, who have come to this City with an embassy, or on any other errand, or in any other city or place, cuirasses, shields, bows, arrows, double-edged swords, or ordinary swords; nor shall any darts or any other weapons made of iron, or the unfinished material for the same be sold to them by any person; for it is injurious to the Roman Empire, and resembles treason for barbarians, who should be deprived of them, to be furnished with weapons in order that they may become more formidable. Therefore, if anyone should in any place sell to foreign barbarians any kind of arms which have been forbidden by Our laws, We decree that his entire property shall immediately be confiscated, and that he shall suffer the penalty of death.

TITLE XLII. CONCERNING EUNUCHS.

1. The Emperor Constantine to Aurelius, Duke of Mesopotamia.

If anyone, after the promulgation of this law, should make any eunuchs in the Roman Empire, he shall be punished with death; and the slave, as well as the place where the crime was committed with the knowledge of his master, even though the latter may feign ignorance, shall be confiscated.

2. The Emperor Leo to Vivian, Prsetorian Prefect.

We order that the ownership of men of the Roman race, who have been made eunuchs either in a barbarous country or on Roman soil, can, under no circumstances, be transferred to anyone; and that the severest penalty shall be inflicted upon those who have dared to commit such an offence, including the notary who drew up the instrument of sale or of any other kind of alienation; and he who received the octava, or anything else by way of tax, shall be subjected to the same penalty. We, however, grant authority to all traders to buy or sell, wherever they please, eunuchs of barbarous nations who have been made such outside the boundaries of Our Empire.

TITLE XLIII. CONCERNING FATHERS WHO HAVE SOLD THEIR CHILDREN.

1. The Emperors Diocletian and Maximian to Papiniana.

It is a plain rule of law that children cannot be alienated by their parents, either through sale, donation, pledge, or in any other way, even under the pretext of the ignorance of the person who receives them.

2. The Emperor Constantine to the People of the Provinces. If any heartless person, induced by extreme poverty and want, should sell either his son or daughter for the purpose of obtaining

means wherewith to live, in a case of this kind the sale shall only be valid where the purchaser had a right to the service of the person sold, and he who made the sale, or the one to whom the child was alienated, shall have the right to restore it to its freeborn condition, provided he tenders its value to the owner, or furnishes him another slave in its stead.

TITLE XLIV. CONCERNING THE RESCISSION OF A SALE.

1. The Emperor Alexander to Maro.

If your father, having been compelled by force, should sell his house, the sale will not be valid, because it was not made in good faith, and a purchase made in bad faith is void. Therefore, having applied in your own name to the Governor of the province, he will interpose his authority, above all if you state that you are prepared to refund to the purchaser the price which was paid.

2. The Emperors Diocletian and Maximian to Lupus.

If either you or your father should sell property for less than it is worth, and you refund the price to the purchasers, it is only just that you should recover the land which was sold by judicial authority; or, if the purchaser should prefer to do so, you should receive what is lacking of a fair price. A lower price is understood to be one which does not amount to half of the true value of the property.

3. The Same to Martiana.

Good faith does not permit a person, at any time, to repudiate a contract of sale or purchase made in accordance with law against the consent of either party, even by virtue of an Imperial rescript. It has frequently been decided that Our Treasury can make use of this right.

4. The Same to Eudoxius.

For the purpose of rescinding a sale, and proving bad faith, it is not sufficient for you to state that the land in question has been sold for less than half the amount for which it was purchased.

5. The Same to Rufus.

If, after application has been made to the Governor of the province, he should decide that you made the sale of your land because you were deceived by the fraudulent representations of your adversary, and being aware that fraud is contrary to the good faith especially required in contracts of this kind, he must order the sale to be rescinded. If, however, it was perfected by a person more than twenty-five years of age, you understand that when this was done by common consent, the sale cannot be set aside.

6. The Same to Gratian.

The reason for which you desire a sale made by common consent to be rescinded is not a proper one; for although you offer double the

price to the purchaser, still, if he is unwilling, he cannot be compelled to rescind the sale.

7. The Same to Mucarolus and Other Soldiers.

It is to your interest that the sales legally made should always remain valid. For if it is readily permitted to rescind a sale, whenever an offer to refund the purchase-money is made, the result will be that if you should buy anything either from Our Treasury, or from a private person, with the fruit of your labors, you can be sued under the same law which you now ask to have a right to avail yourself of.

8. The Same to Evodia.

If your son should, with your consent, sell a tract of land belonging to you, and fraud resulting from cunning and treachery should be proved, or the fear of death, or if some threat of bodily injury should be disclosed, the sale shall not be considered valid. The sole reason which you give for rescinding the sale, namely, that the property was disposed of for a little less than its true value, is not sufficient. If, indeed, you bear in mind the nature of the contract of sale, and that the purchaser desiring to buy for a lower price, and the vendor desiring to sell for a higher one, have come to terms after much contention, the vendor, receding little by little from what he at first demanded, and the purchaser adding little by little to what he at first offered, until they finally agree upon the price, you will at once perceive that neither the good faith which protects contracts of purchase and sale nor any other reason will suffer an agreement concluded with mutual consent to be rescinded, because either immediately, or after the amount paid has been discussed in court, if less than half of the just price was not paid at the time of the sale, the purchaser had reserved the right to return the property on condition that the money was refunded.

Given on the Kalends of December, during the Consulate of the Caesars.

9. The Same to Domitius.

A contract is not considered to be void where the price of the property was not counted out in money, but payment was made in cattle, with the consent of the vendor.

10. The Same to Severus.

The fraud of the purchaser is established by the nature of the act, and not by the amount of the sum which was paid. - If fraud is proved to have taken place, the vendor will not have a right to bring an action to recover the property against the person to whom the purchaser transferred the ownership, but he will be entitled to one for complete restitution from him with whom he made the contract.

11. The Same to Magna.

The vendor can make a complaint for fraud committed by the purchaser, which was concealed from him at the time of the execution

of the contract, and which he afterwards ascertained, but not when he was aware of what was being done at the time, and gave his consent to it. Therefore, as you allege that your father agreed to what was mentioned in the bill of sale, namely, that a higher price should be paid than it was originally agreed that the property should be sold for, he will, in vain, complain of having been swindled on this ground. (1) Where, indeed, it is proved that the price agreed upon was not paid, or if it was provided, through an error of fact, that another debt should be set off against it, a demand can legally be made for its. payment.

12. The Same to Antiochus.

The sale of the land in question is none the less valid because you allege that you disposed of it because you had a pressing need for the money in order to satisfy a public claim, and did not sell it for less than it was worth. Therefore, while abstaining from any unlawful demands, you had better demand the price, if it has not been paid in full.

13. The Same Emperors and Cs&sars to Nica.

If you, when you were more than twenty-five years of age, sold a tract of land, good faith does not permit the sale to be rescinded by you for the sole reason that your father-in-law notified the purchaser not to buy it.

14. The Same Emperors and Caesars to Basilica.

Estates having been sold upon condition that the person who brought them should pay what the vendor owed to the State, and payment having been made by the latter, he can bring suit for the amount to which he is entitled, but the contract shall not be declared void for the reason that the purchaser did not comply with his agreement.

15. The Emperors Gratian, Valentinian, and Theodosius to Hypa-tius, Prsetorian Prefect.

If anyone who has attained his majority should sell some lands situated in a distant country, he • cannot recover the property sold under the pretext that it was disposed of for a little less than its real value, and he will not be permitted to cause delay by objections which are without foundation, as, for instance, to allege that the value of the property was not known to him, as he should have previously made himself familiar with the value, the advantages, and the profits of the same.

Given on the sixth of the Kalends of May, during the Consulship of Merobaudus, Consul for the second time, and Saturninus.

16. The Emperors Valentinian, Theodosius, and Arcadius to Ma-gillus, Vicegerent of Africa.

If the necessity imposed by public liabilities compels anyone oppressed by the weight of his debts to relinquish his property, the

nature of the same and the amount of the income derived from it shall be estimated in order that there may be no ground for fraud under the pretext of a public sale, so that, it having been sold at too low a price, the collector of taxes will obtain more from the favor which he grants than the debtor will from the money which he receives. Those shall afterwards hold the property by a perpetual title, legally obtained by the sale, who paid to the Treasury as much as would have been given by a private person; for it is extremely unjust that where the property of another is sold as a favor, the Treasury should obtain but little, and the debtor lose everything.

17. The Emperors Arcadius and Honorius to Messala.

Those who, in order to avoid public charges to which they are liable, take to flight, or secretly make fraudulent contracts, are hereby notified that such schemes will not benefit them to any extent, and that if the purchaser is aware of their flight he shall be fined a sum equal to the price which he paid.

Given on the twelfth of the Kalends of September, during the fifth Consulate of Theodore, 399.

18. The Emperors Arcadius, Honorius, and Theodosius to Nes-torius, Count of Private Affairs.

The Palatines are hereby informed that authority is refused them to purchase clothing, gold, silver, or slaves, whenever they are sold by Our subjects, under penalty of losing the price which they paid.

TITLE XLV.

WHEN IT is PERMITTED TO REFUSE TO COMPLY WITH A CONTRACT OF SALE.

1. The Emperor Gordian to Rufinus.

When a contract of purchase and sale has not yet begun to be carried into effect, it can be rescinded with the acquiescence of both parties, for what has been agreed to by common consent can be dissolved in the same way. However, after delivery has been made, mere consent will not rescind a sale, unless a contract similar to the first one is drawn up, which retroactively puts an end to the transaction.

2. The Emperors Diocletian and Maximian to Felix.

It is established that a purchase and sale which has not begun to be executed can be rescinded by an agreement, and the consent of the-parties. Therefore, if gold has been given by way of earnest money, you can recover it in accordance with the terms of the agreement. Where, however, you have paid part of the price, you will rather be entitled to an action to recover whatever the vendor is required to furnish you under the contract of sale than the amount of the price which he paid.

TITLE XLVI.

WHERE A SALE is MADE ON ACCOUNT OF PUBLIC CONTRIBUTIONS.

1. The Emperor Antoninus to Maternus.

A sale should not be revoked on account of the non-payment of taxes, whether the former owner tenders the purchase-money, or a creditor interposes his right of hypothecation or pledge, as the claim, for the taxes is preferred, and all the property of the party in default is liable to it on the ground of priority.

2. The Emperors Diocletian and Maximian to Plotius.

If you have purchased lands taken from their owners on account of the non-payment of any taxes or of some balance due which were sold with the observance of the legal formalities, in good faith, and for a fair price with the permission of the Governor, by persons responsible for the collection of taxes, a sale made on account of public claims of this kind cannot be set aside. Where, however, the sale did not take place by the authority of the Governor previously obtained, the laws do not consider it to be valid, and therefore what was illegally done should be revoked in such a way that the payment of the taxes may, under all circumstances, be secured. All these things should be done in the presence of the person who you allege is the purchaser.

3. The Emperor Constantine to the Governor Faustus.

If anyone should buy at public sale a tract of land, a slave, or any other property, on account of default of the payment of taxes, or because of the seizure of clothing, gold, or silver which was due and payable annually and the debtor has been summoned and interrogated in court with reference to his failure to pay, We order that the sale shall be perpetually confirmed. If, however, the party interested is a minor, it is necessary that some person who can make a lawful defence should be present at the sale, and it makes no difference whether what was due was to be collected by Our attorney, or the Governor of the province.

Given on the day before the Ides of December, during the Consulate of Felicianus and Titian, 337.

TITLE XLVII.

LAND CANNOT BE PURCHASED WITHOUT THE PAYMENT OF TAXES OR BALANCES WHICH ARE DUE.

1. The Emperor Alexander to Capito.

An action will not lie in your favor against your stepmother and your father under an agreement which you allege was entered into between them by which she gave a tract of land as dowry, and agreed to pay the taxes to which it was liable, and this is the case even if the

agreement is proved to have contained a stipulation. If, however, the land has been appraised, in order, as was stated in the instrument, that it might be given by way of dowry, the action on sale will not lie, although the agreement may be enforced.

Given on the Nones of December, during the third Consulate of the same Emperor, Consul for the third time, and Dio, 230.

2. The Emperor Constantine to Marcellus.

While examining the question of public contributions with reference to provisions, We have ascertained that the principal reason why the tax due is not paid is because certain persons, taking advantage of the temporary necessities of others, purchase lands under the condition of not paying any taxes which might be due on them to the Treasury, and possessed them free from all encumbrance; therefore it has been decided that if it should be proved that anyone had made a contract of this kind, and had obtained possession under this condition, he shall not only be liable for the ordinary taxes on the land which was purchased, but also for all these remaining unpaid, and as the person who bought it is required to pay the taxes thereon, no one shall be permitted to purchase or sell any property free from tax.

Given at Agrippina, on the Kalends of July, during the Consulate of Constantine, Consul for the fifth time, and Licinius, 319.

Extract from Novel 17, Chapter Vill, Section 1.

The vendor can, however, assume the payment of any taxes, if, after examination made before delivery, the purchaser should be found to be insolvent, for then the vendor will be compelled to acknowledge that the transfer was made at his risk, so far as the payment of taxes to the Treasury is concerned.

3. The Emperor Julian to Secundus, Prsetorian Prefect.

All persons shall be liable for the public taxes imposed upon the land in their possession, and they can obtain no advantage from agreements to the contrary, where either the vendor or the donor himself desires to assume the payment of the taxes under the terms of an unlawful contract, even if the name of the new owner has not yet been placed upon the tax register, but that of the former proprietor of the land still remains, the parties themselves having been guilty of dissimulation in order that those not in possession might be compelled to pay instead of the actual possessors.

Given at Antioch on the fourteenth of the Kalends of March, during the Consulate of Julian, Consul for the fourth time, and Sallust, 363.

TITLE XLVIII.

CONCERNING THE RISKS AND ADVANTAGES ATTACHING TO PROPERTY SOLD.

1. The Emperor Alexander to Apollonius.

After a sale has been perfected, every advantage and disadvantage which can affect the property disposed of will concern the purchaser,

for the vendor, on his part, is only liable for what may cause eviction, and originated during the time preceding the sale; hence if he is notified to appear at a proceeding of this kind, judgment will be rendered against him in the presence of the purchaser.

2. The Same to Julian.

As it is proper that wine-jars should be sold at a fixed price, before they have been delivered, and while the sale was as yet imperfect, the risk of having the wine changed will not be assumed by the purchaser, provided he was not in default in causing it to be measured. As, however, you allege that all the wine deposited in the warehouses was sold without having been measured, and the keys delivered to the purchaser, any loss which ensued from its having been changed after the sale was concluded must be assumed by the latter.

These rules not only apply to wine, but also oil, grain, and other articles of this kind which have been sold and have become deteriorated or entirely destroyed.

3. The Same to Diaphania.

It is an established rule of law that the fraud of the vendor cannot injure a bona fide purchaser.

4. The Emperor Gordian to Silurus.

When an agreement as to the price was made in a verbal contract between purchaser and vendor, and the vendor did not delay in delivering the property sold, there is no doubt that it will be at the risk of the purchaser.

5. The Emperors Diocletian and Maximian to Leontius.

As you state that the property sold was consumed by fire, and there was no condition which suspended the sale, you were not liable for the articles destroyed.

6. The Same to Cerulus.

The loss by death of the female slave who was sold must be borne by the purchaser, and not by the vendor, even if it occurred before the slave was delivered, provided the vendor was not in default; and as the slave did not die on account of some already existing defect the purchaser cannot legally refuse to pay the price.

TITLE XLIX.

CONCERNING THE ACTIONS OF PURCHASE AND SALE. 1. The Emperor Antoninus to Deliana.

Bring an action of sale against the person to whom you sold the land, for you are not entitled to one in rem against the purchaser, who is personally liable to you.

2. The Emperors Valerian and Gallienus, and the Csssar Valerian to Domitian.

You can bring the action of sale against your adversary for the purpose of recovering the balance of the price. You cannot be opposed by having a set-off pleaded against you, as if you were indebted to one another; and if you should prove that, in a bona fide contract (on account of which persons over the age of twenty-five obtain relief through a judge on the ground that fraud has been committed), you have been led into a plausible error, or have been defrauded by your adversary, and have acknowledged a debt which, in fact, was not due.

You can also recover by the same action any crops which were gathered before the sale was contracted, and which were not included in it, but which you allege were appropriated by the purchaser.

3. The Emperors Diocletian and Maximian to Serpodorus.

A personal action in favor of the contracting parties is the only one which can be brought under an agreement where earnest money has been given.

4. The Same to Mutian.

If the delivery of the property sold did not, through the obstinacy of the vendor, take place in accordance with the terms of the contract, the Governor of the province must see that judgment is rendered against him to the extent of the interest which the purchaser had in having the sale concluded.

5. The Same to Decima.

The Governor of a province shall compel the purchaser to restore to you a part of the price with the interest if, after having obtained possession of the property, he has gathered the crops, and this rule is established because he has gathered them in favor of minority, even though the purchaser may not have been in default.

6. The Same to Neractus.

The action of sale (unless it was otherwise agreed in the beginning) will not readily lie to rescind a sale which has been perfected, but it can be brought for the purpose of collecting the purchase-money.

7. The Same to Diodorus.

If you sold certain slaves and received the price out of their peculium, which, in fact, belonged to you without knowing from whence it was derived, the result will be that you can bring suit to recover the price, as the payment of money belonging to the vendor does not release-the purchaser from liability.

8. The Same to Eusebius.

If your father should sell a portion of his land, but does not place the purchaser in possession, it is certain that he will retain all his rights to said land; and even if the purchaser has paid the tax, as

where delivery has been made, he will still do so, for when a simulated act takes place it cannot alter the truth. Wherefore, if after application has been made to the Governor of the province, he should find that neither your father nor his successors had placed either the purchaser or his heirs in possession of any part of the property, he will have no hesitation in deciding that no transfer was made. But if he should learn that you have been sued in an action on purchase to compel you to place the purchaser in possession, he must then ascertain whether the price has been paid, and if this has not been done, he will see that the property is restored to you.

9. The Same to Antipatra.

If it should be stated by the vendor (either knowingly or ignorant-ly) that the tax on the land sold was less than it was afterwards found to be, suit can be brought against him for the amount which the purchaser would have been compelled to add to the price, if he had been aware of this in the first place. Where, however, he was aware of the actual amount of the tax which was due, he will have no right of action against the vendor.

10. The Same to Attains.

As you state that the vendor did not deliver you the meat at the time agreed upon, contrary to the terms of the contract, you can sue him before the Governor of the province in the action of purchase for the amount of the interest that you had in having the meat furnished you.

11. The Same to Bucarpia.

Where a vendor has manumitted a female slave delivered to you under a contract of sale, he cannot bestow freedom upon a slave which belonged to another. If, however, he manumitted the slave after the sale and before delivery, being still her owner in accordance with law, he will not be prevented from making her a Roman citizen, and you will be entitled to a personal action against him for breach of contract.

12. The Same to Crispinus.

As any loss caused by having wine changed after it has been actually purchased is at the risk of the purchaser, so he will also be entitled to any advantage derived from an increase in price. For this reason the terms of a contract must be observed when wine of a certain kind and quantity is sold, and if it should not be delivered, an action will lie, not for the price, but for the amount of the interest which the purchaser had in having it delivered.

13. The Same to Alexander.

After a contract has been legally concluded, it is settled that the profits of the property will belong to the purchaser, just as he must be responsible for any encumbrance upon it. The vendor can also, by authority of the judge, collect not only the price, but also the interest on the same, if it shall be established that the purchaser is in default.

14. The Same to Rufinus.

The purchaser of slaves can properly demand that a guarantee be furnished for their delivery, and against their flight, as well as for their health and that they are not wanderers, or liable to be surrendered by way of reparation for damages.

15. The Same to Antonius.

A purchaser cannot collect any more than the amount of wheat sold to him, as stated in the contract, where the vendor is not in default in the delivery.

16. The Same to Cyrillus.

It is well known that after a sale has been perfected, the young of cattle should be delivered by the purchaser, and the vendor should be reimbursed his expenses, if they have been incurred in good faith.

17. The Same to Hermianus and Lupus.

When you allege that you have been violently expelled by Nero from lands to which you deny he is entitled, you show that you have no right of action against him, for you have obtained possession of the land by sale; and therefore you must be aware that you should institute proceedings against him by means of an interdict, or by the Actio permissa.

TITLE L.

WHERE ANYONE HAS PURCHASED PROPERTY FOR ANOTHER,

OR FOR HIMSELF IN THE NAME OF ANOTHER, OR WITH

MONEY BELONGING TO ANOTHER.

1. The Emperor Antoninus to Secundinus.

If lands or slaves have been bought with your father's "money, and you assert that, nevertheless, the purchases were made in your mother's name, you should not be ignorant that by delivery your mother will become the owner of the property. It is evident that if you think you have a right to collect the price paid for said property, because it has been counted out by your mother, you must sue her in a civil action.

2. The Emperor Alexander to Septima and Others.

If, after your emancipation, your father should deliver to you certain lands which he purchased in your name when you were under his control, or if you had been in possession of said lands with his con-, sent, you will acquire the ownership of the same.

3. The Same to Patrimus.

If the slaves whom you mention have, as you state, been purchased in your name and in that of your brothers to whom you have succeeded, and have been delivered to you, although in the bill of sale it is stated

that your mother paid the money for them, you will not be prevented from recovering them in the ordinary course of law.

4. The Emperors Valerian and Gallienus, and the Csesar Valeria/n, to Cyrillus.

Although you inserted the name of your mother-in-law in the bill of sale, still, if while in possession, you became the owner of the property, you will have no need to apprehend any annoyance from her on this account, even though she may have the written contract.

5. The Emperors Diocletian and Maximian to Verus.

You say that, after having purchased a tract of land with your own money, you only inserted the name of your wife in the contract of sale, and she, taking advantage of the said contract which had been entrusted to her, claimed the ownership of the land contrary to good faith. The Governor of the province, in the exercise of his authority, must provide that the donation of said property by your wife, who is not the owner of the same, to her daughter, will not prejudice your right of ownership, and when you prove the truth of the statements in your petition, he will see that possession is restored to you, after having made an estimate of the value of the crops.

6. The Same to Dionysius.

It makes a great deal of difference whether you counted out the money when your wife made the purchase, and possession was delivered to her, or whether the contract was made in your name, and you subsequently caused that of your wife to be inserted in the bill of sale. For if your wife purchased the property in her own name, and it was delivered to her, you will have no right to it, and you will only be entitled to an action against her for the amount by which you have become poorer, and she has become richer.

When, however, you yourself purchased the property, and possession was delivered to you, and the name of your wife was only inserted in the instrument of sale, what has actually been done is preferable to what has merely been stated in writing.

But if in the beginning you, while transacting the business of your wife, made the purchase in her name, you did not acquire the right of action on purchase against her, as you did not intend to and could not have done so; and therefore so far as the question involving ownership is concerned, the position of him to whom possession has been delivered by the owner of the property is preferable.

7. The Same to Gerontius.

As you state that you have bought oil through persons who are transacting your business, but, after the price was paid, the vendor violated his agreement, you have certainly acquired a right of action growing out of the purchase, through the contract of those legally subject to your authority; and the action can either be brought by you or by anyone whom you may direct.

If, however, persons who were their own masters made this contract in accordance with your mandate, they themselves have acquired the right of action on purchase, and therefore you must appear before a competent judge either by them or by those to whom they gave the mandate, and he will see that your claim is satisfied in accordance with the good faith which is ordinarily observed in contracts of this description.

8. The Same to Valentina.

Anyone who has made a purchase with money belonging to another will acquire the right of action on purchase for himself, and not for him to whom the money belongs, together with the ownership of the property, if possession was delivered to him. Therefore, as you state that your cousin bought property with money owned in common by you both, you will do well to sue him to recover your money, but you will not be entitled to an action in rem against him for the property purchased.

9. The Same to Rufina.

There is nothing to prevent the ownership of property from being transferred to another than the person who has counted out the money, with the consent of both of the contracting parties, or, indeed, with only that of the vendor; and for this reason it is perfectly clear that an agreement of this kind can be made between persons who are absent, through the agency of a third party, as for instance, a messenger, or even by means of a letter.

TITLE LI.

CONCERNING THE PROHIBITED ALIENATION AND HYPOTHECATION OF THE PROPERTY OP OTHERS.

1. The Emperor Alexander to Cantianus.

If it should be proved before the Governor of the province that Julian, without any right, sold your slaves to persons who knew that they did not belong to him, he must order the purchasers to restore your slaves to you. If, however, they were ignorant that this was the case, and the slaves were delivered to them, the Governor shall order Julian to pay you the price of said slaves.

2. The Emperor Gordian to Gratia.

If you did not give your consent to the sale of your property by your husband, although you sealed with your own signet the instrument of sale which was fraudulent, a swindle of this kind will afford no security to the purchaser, and he can, by no means, avail himself of the rights of usucaption, or prescription based upon long time.

3. The Emperors Diocletian and Maximian to Valerian. A vendor who succeeds by hereditary right is not permitted to rescind a sale which was legally made and perfected, and recover the

ownership of the property; but if she makes a claim in her own right, you can protect yourself by means of an exception on the ground of fraud, if you prefer this method; or, in case of eviction, if you do not wish to make use of the above-mentioned defence, you can bring suit for the value of your interest in the matter.

4. The Same to Affabilus.

When your mother gave the slaves of your father, who had leased a tract of land of Philip, to the latter for the payment of debts, and the slaves were obtained by you through inheritance, she could not deprive you of anything. Therefore, if you are more than twenty-five years of age, and did not ratify the transaction, and the lessor did not sell the slaves as being encumbered to himself by the right of pledge, you can bring an action to recover them after tendering the amount of the indebtedness.

5. The Same to JEgrus.

If after your emancipation your father sold a tract of land belonging to you without your consent, and you did not become his heir, and were not protected by possession based upon long time, the Governor of the province will cause the land to be returned to you, if you institute proceedings for that purpose.

6. The Same to Rufus.

No one has been able to injure you by selling property which did not belong to him, and upon which he had no lien, and which he had no authority to dispose of.

7. The Emperor Justinian to John, Prietorian Prefect.

We decree that when the law forbids an alienation to be made, or this is done by a testator, or in compliance with an agreement between contracting parties, not only the alienation of ownership and the emancipation of slaves, but also the transfer of the usufruct, or the hypothecation or encumbrance of the property by way of pledge shall be absolutely prohibited. In like manner, We decree that servitudes cannot be imposed upon the property, or emphyteutical contracts executed except in cases where the authority of the constitutions, the will of the testator, or the tenor of the agreement which forbade the alienation permits something of this kind to be done.

TITLE LII. CONCERNING THE ALIENATION OF PROPERTY OWNED IN

COMMON.

1. The Emperor Antoninus to Apollodorus.

If the purchaser of the land which you allege was sold by the coheirs of your paternal uncle cannot avail himself of the privilege of usucaption, or of prescription founded upon long-continued silence,

the right of action in rem will remain unimpaired, so far as your share is concerned. If, however, the law has given the purchaser security, you have a perfect right to sue those who consented to an unlawful sale of your portion of the property.

2. The Same to Terentianus.

It makes a great deal of difference whether your co-heirs have sold property held in common, or whether the Treasury, which owned a part of the same, sold the whole of it on account of the peculiar privilege which it enjoyed; for if the sale was made by the Treasury, the law does not permit the good faith of it to be impugned. Where, however, the co-heirs sold the entire property, although the purchaser, having been delegated by them, may have paid a part of the price to the Treasury, and entered into an agreement to pay the balance, still, the sale cannot prevent you from obtaining your share.

3. The Emperors Diocletian and Maximian to Eusebius.

You have been incorrectly informed that the undivided share of an estate which is held in common can only be sold to one of the jomt-owners and not to a stranger, before judgment has been rendered in a suit for partition.

4. The Same to the Soldier Ulpian.

Your brother had no right to alienate your share of the property, especially while you were in the army, but it is not in conformity with military dignity to demand that your share of it should be restored to you upon tendering the price.

5. The Same and the Csesars to Olympianus.

If you, being more than twenty-five years of age at the time, sold an estate as yours, not knowing that it was jointly owned by you and your brothers, although no written instrument was drawn up as evidence of the sale, and no special agreement was made, you will be obliged to pay to the purchaser the amount of his interest, if the shares belonging to the others should be evicted.

TITLE LIII.

THOSE WHO HAVE CHARGE OF THE AFFAIRS OF OTHERS ARE NOT FORBIDDEN TO ALIENATE THEIR OWN PROPERTY.

1. The Emperors Severus and Antoninus to Publica.

Guardians or curators are not forbidden to alienate their own property, even though they may have been legally declared indebted on account of their administration. Therefore, your curator was able to encumber his property with the lien upon it to Our Treasury, which he could also have done to a private person.

TITLE LIV.

CONCERNING AGREEMENTS ENTERED INTO BETWEEN VENDOR AND PURCHASER.

1. The Emperor Antoninus to Diotima.

If you sold your estate under the condition that if the price should should not be paid within a certain time, the purchaser would forfeit the earnest money, and the ownership revert to you, the terms of the contract must be observed.

2. The Emperor Alexander to Charisius.

If your parents sold a tract of land under the condition that if they themselves, or their heirs, should indefinitely, or within a designated time, tender to the purchaser the price of the property he would restore it; and if you are ready to comply with the above-mentioned condition, and the heir of the purchaser refuses to fulfill the contract, the Actio prsescriptis verbis, or the action on sale, shall be granted you; and an account shall be rendered you of the amount of the crops taken from the land which have come into the hands of your adversary, after the price was tendered in compliance with the terms of the agreement.

3. The Same to the Soldier Felix.

If anyone should sell an estate on condition that if the balance of the purchase-money was not paid within a certain time the property would revert to him, as he did not deliver possession under a precarious title, he cannot bring an action to recover the land, but he can bring one on account of the sale.

4. The Same to Julian.

He cannot avail himself of the condition under which a sale was made who, after the day fixed for the payment of the purchase-money has arrived, does not choose to bring an action to recover the property, but prefers to bring one to collect the interest on the price.

5. The Emperor Gordian to Longinus.

When, at the time of the sale, you agreed that, if the person to whom you sold the property should pay you interest on the price if it was not paid at the time appointed, you will be correct in thinking that, after having made application to the Governor of the province, you can compel its payment by the purchaser; but if you did not make such an agreement in the beginning, having begun suit, you will only legally be entitled to interest from the time when the buyer was in default, and you can proceed not only against the debtor himself, but also against anyone who has given security for the purchase.

6. The Emperors Cams, Carinus, and Numerian to Rimulus.

You having stated that in consideration of a certain matter agreed upon between you, you transferred your land to another for a very

low price, you cannot be defrauded by this agreement; as, when the promise is not fulfilled, it is proper that the ownership of the property should revert to you. Therefore, having applied to a competent judge, he will take measures to have the land which you mention returned to you with its crops without delay; and especially if the other party has been repaid the money which you received from him, he cannot be considered to have sustained any loss.

7. The Emperors Diocletian and Maximian to Museus.

If the person to whom he alludes purchased anything from you, and it was agreed that if a certain sum of money was not paid within a specified time the transaction should be void; you cannot legally demand, under Our Rescript, that this agreement be set aside. If, however, the purchaser withdraws, in order that he may retain the ownership of the property by law, you can protect your rights by the remedy of notice, sealing up of the money, and depositing it, which has been established to prevent fraud.

8. The Same Emperors and Csesars to Auxanon.

It is certain that the agreement made between the purchaser and the vendor at the time of the contract must be inviolably observed, provided it was not annulled by a subsequent agreement.

9. The Emperor Justinian to John, Prsetoricm Prefect.

If someone in a contract of sale or alienation should agree that the new owner should not, under any circumstances, be permitted to erect a monument in the place which was sold, or transferred to him in any other way, or be deprived of any right to which men are ordinarily entitled, We order that an agreement of this kind shall be observed in accordance with Our law, and remain inviolate; although a doubt arose on this point among the ancients, for it is a matter of grave concern that the purchaser should become the neighbor of a person whom he did not wish to be such, and still more, if the latter had been expressly forbidden to reside near him. For when neither a vendor, nor anyone else who alienates property, permits his right to be transferred, except under such a condition, how can it be tolerated that he should suffer annoyance on account of a different interpretation of the contract?

TITLE LV.

WHERE A SLAVE is SOLD FOR THE PURPOSE OF BEING SENT OUT OF THE COUNTRY.

1. The Emperors Severus and Antoninus to Petronia.

Slaves who have been sold under the condition of their being sent out of the country, or if this is not done, that they should be confiscated, can obtain their freedom from the purchaser, or anyone who succeeds to his place, before the terms of the contract are violated.

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They can, however, be claimed by the Treasury after their manumission, and are liable under the same condition to be reduced to perpetual servitude if they should be found in those cities from which they are excluded by the contracting parties. The power of confiscation is, however, not refused before their manumission.

2. The Same to Nedienus.

When, however, you have provided that you shall have the right of seizure of a slave, you can avail yourself of it; but if you omitted to do this, and stipulated for a penalty, and the slave should be confiscated by the Treasury, you will be entitled to the action based on the stipulation. In every instance, however, inquiry should be made whether the slave came into the prohibited place with the consent of his master.

3. The Emperor Alexander to Nonius.

In a case where a female slave was sold to be sent out of the country, and this was not done, but while residing in the same city with the purchaser, the latter manumitted her, she could not become free contrary to the condition of the sale; and therefore if you apply to My attorney he will perform his duty.

4. The Same to Papias.

I am annoyed because you allege that you have been sold by slaves whose master you were, under the condition that you should not remain in the country, and you state that you have been manumitted by him to whom your first master sold you. For this reason a competent judge will examine the person who you say is present, and if the truth of the accusation is established, he must punish the detestable crime with the penalty of death. Your status, however, will be that of a slave after manumission, if you establish the truth of the accusation which you make.

5. The Same to Seraphianus.

A slave who has been sold by his master on condition of his removal from a city cannot reside in the City of Rome. Where, however, the condition applies to a certain province, he will be allowed to reside in Italy. Therefore, if you can prove that the condition agreed upon was violated, you can avail yourself of the right to which, for this reason, you are entitled.

TITLE LVI.

WHERE A SLAVE HAS BEEN SOLD ON CONDITION THAT HE SHOULD NOT BE PROSTITUTED.

1. The Emperor Alexander to Socrates.

Our friend, the Prefect of the City, will grant the power of arrest to anyone who is entitled to it, in accordance with the Constitution

of the Divine Hadrian, where a slave has been sold under the condition that he or she should not be prostituted, and this has been done. If the Prefect should ascertain that the vendor, in violation of the condition which he himself prescribed, permitted the woman to obtain dishonorable gain in this manner, as she is entitled to freedom by the Constitution of the same Emperor, she should be brought before the Prsetor having jurisdiction of cases involving liberty, and he shall order proceedings to be instituted for that purpose at once; for the force of the condition after it has once been made is not lost because the ownership of the slave may have passed through several purchasers to the first one who prostituted her, without prescribing a similar condition.

2. The Same to Severus, Przetorian Prefect.

It is necessary for the woman, whom you allege was sold under the condition that she should not be prostituted, and in case this took place, she was to become free, to be legally produced before the tribunal; and if any controversy should arise with reference to the agreement (under which, if it is genuine and the condition has been fulfilled, the woman will be entitled to her freedom), the case shall proceed before the magistrate having jurisdiction of the same. This condition, however, although it may not have been inserted in the bill of sale, will be valid, if it is proved to have been made in a letter, or even if it has not been reduced to writing.

3. The Same to Aurelius.

A female slave, who has been sold under the condition that she does not make a shameful commerce of her body, must not prostitute herself in a tavern under the pretext of serving therein, in order to avoid a fraudulent evasion of the condition prescribed.

TITLE LVII.

WHERE A SLAVE HAS BEEN ALIENATED UNDER THE CONDITION THAT HE WILL OR WILL NOT BE MANUMITTED.

1. The Emperor Alexander to Patricenstis.

If Patroclus, after he donated you to Hermia under the condition that if you served her as a slave for sixteen continuous years, she would grant you your freedom, and you would then become a Roman citizen, provided Patroclus did not afterwards change his mind, or even if he died that you would be free; as it has been established that this condition not only applies to slaves who are sold, but also to such as are donated, you should be manumitted. The title to you having once been transferred to Hermia, Patroclus could not afterwards sell you to another; and therefore you should not contend that freedom which you have already obtained by the constitution ought to be granted you, but you should defend what you already have obtained.

2. The Same to the Freedman Eutychianus.

If Chrestes sold his slave, who is also his natural son, on condition that the purchaser should manumit him, even though this may not have been done, he will become free in accordance with the Constitution of the Divine Marcus and Commodus, addressed to Aufidius.

3. The Same to Fulginius.

If Justa sold Saturninus a slave girl named Firma, who was at that time seven years of age, under the condition that she should be free when she reached the age of twenty-five years, although in the agreement relating to her freedom, executed by the purchaser, this was not inserted, but it was merely stated, "that she should become free;" still, in this instance, there is ground for the application of the Constitution of the Divine Marcus and Commodus, included in the collection of laws entitled Semesters. Therefore, when Firma reaches her twenty-fifth year, she will become free, and it cannot be pleaded in opposition to this that she was manumitted in her twenty-seventh year, because she was already free under the terms of the constitution. Therefore, a child born of you and her, who was conceived after the twenty-fifth year of its mother, is freeborn.

4. The Emperor Gordian to Jocunda.

If anyone received a sum of money under the condition that he would grant you your freedom within a specified time, and he delayed in complying with his promise to liberate you, it is clear that you will be free from the .moment when freedom should have been conferred upon you, and it was not done; and therefore, it is certain that any children born to you ought to be considered freeborn.

5. The Same to Martian.

Slaves, whose sale was made under the condition that they should not obtain their freedom, cannot do so even if they are manumitted; for a condition which attaches to a slave cannot be changed by the act of anyone who purchases him subject to it; nor can a penalty legally be exacted for non-compliance with the condition (if one was prescribed). Hence the person who imposed this condition in making the sale cannot call you beforve the Attorney of the Treasury, as it should not interfere with a private contract, and the letters which have been sent to you do not prove that you violated the condition, if you yourself did not manumit the slave.

6. The Emperors Diocletian and Maximian, and the Csesars, to Rufinus.

If you sold a young girl under the condition that she should be manumitted, and that, if this was not done, the purchaser must pay a hundred aurei, and the contract is not complied with, it is established that the slave shall, nevertheless, obtain the freedom which should have been granted her, nor can the money be lawfully collected, as in the case of the violation of a contract, since it has been decided, for

excellent reasons, that where the vendor did not subsequently change his mind, compliance with the condition was not necessary for the purpose of manumission.

TITLE LVIII. CONCERNING ^DILIAN ACTIONS.

1. The Emperor Antoninus to Decensius.

If someone, not in good faith, but with the intention of committing fraud, should sell you a slave who is in the habit of running away, or one with some other defect, without your being aware of it, and the said slave takes to flight, a competent judge (as has already been established) shall order that the vendor shall not only be liable for the price of the slave, but shall also make good any damage which you may have sustained on his account.

2. The Emperor Gordian to Penthilius.

As you state that a slave whom you purchased some time since ran away a year ago, I cannot permit you on this account to hold the vendor responsible; as it is a plain rule of law that the Actio redhibitoria cannot be brought after six months, or the one Quanta minoris after a year.1

3. The Emperors Diocletian and Maximian to Mutian.

The purchaser must bear the loss of the slave if he becomes a fugitive after the sale, and it is not proved that he ran away from his former master. If, however, the vendor should rashly guarantee that a slave had no vice, and that he would not have any hereafter, although this appears to be impossible, still there is no doubt that an action can be brought in accordance with the terms of the contract, made either before or at the time of the sale; for subsequent accidents are at the risk of the purchaser, not of the vendor. But as you state that the slave whom you purchased returned to the person who sold him, a competent judge, after having taken all the circumstances into consideration, will render a decision in accordance with the nature of the facts.

4. The Same to Falsus.

When anyone purchases a tract of land under the condition that if he should be displeased with it, it should be considered as not sold,

1 The Actio quanti minoris differed from the Actio redhibitoria in that the latter was intended to effect an absolute rescission of the contract, involving a return of the property sold with the profit of the same, as well as the collection . of damages resulting from any defects known by the vendor to have been in existence, which, when the sale was negotiated, would have been sufficiently serious to have interfered with it; while, under the Actio quanti minoris only the amount of the decrease in value caused by such defects could be recovered, by compelling that much of the purchase-money to be refunded. There was nothing to prevent this suit from being repeatedly brought with reference to the same transaction, where the defects were not all discernible at the same time.—ED.

it is clear that it having been returned as sold under a condition, the Actio redhibitoria will lie against the vendor.

The same rule shall be observed where the land is pestilential, that is to say, where it contains dangerous or poisonous herbs, and the purchaser was ignorant of this when it was sold, for it is established that in this case, also, the above-mentioned action can be brought.

5. The Emperors Gratian, Valentinian, and Theodosius to Nephri-dms.

Although a bona fide contract may have been made for a slave, and the latter may have been delivered, and the price paid, still, the right of recovery is granted to the person who purchased him if he can produce the slave, whom he alleges has taken to flight.

This rule should not only be observed with reference to barbarian slaves, but also concerning such as are natives of the provinces.

Given at Constantinople, on the third of the Kalends of July, during the Consulate of Honorius, Consul for the ninth time, and Evodius, Consul for the fifth time.

TITLE LIX.

CONCERNING MONOPOLIES, UNLAWFUL AGREEMENTS OF MERCHANTS, THE ARTIFICERS OR CONTRACTORS, AND THE ILLEGAL AND PROHIBITED PRACTICES OF BATH PROPRIETORS.

1. The Emperdr Zeno to Constantine, Prsetorian Prefect.

We order that no one shall be so bold as to monopolize the sale of clothing of any kind, or of fish, combs, copper utensils, or anything else having reference to the nourishment or the common use of mankind, no matter of what material it may be composed, whether he does so by his own authority, or under that of a Rescript already promulgated, or which may hereafter be promulgated, or of a pragmatic sanction, or of any Imperial Annotation; and let no one conspire, or agree in any unlawful assembly, that any kind of merchandise which is an object of commerce shall not be sold for less than is agreed upon by the parties in question.

Builders of houses or contractors, and artificers of other different trades, as well as proprietors of baths, are absolutely forbidden from entering into agreements with one another, providing that where one of them is engaged to perform some work it cannot be done by another, or that one shall interfere to prevent another who has been employed to do it. Permission is hereby given to anyone to complete work which is unfinished and abandoned by another, without fearing to be subjected to expense by the latter, and to denounce all crimes of this kind without fear, and without being subjected to expense in court.

Moreover, if anyone should venture to practice monopoly, he shall be deprived of all his property, and sentenced to perpetual exile. Again, We decree that those who are at the head of other professions, and

hereafter venture to fix the prices of their merchandise, or bind themselves by any illegal contracts of this kind, shall be punished by a fine of forty pounds of gold, and that your tribunal shall be condemned to pay a fine of fifty pounds of gold if it should happen that, either through venality, dissimulation, or some other vice, the provisions of Our most salutary Constitution with reference to prohibited monopolies and forbidden agreements of corporate bodies should not be executed.1

1 Moslem law considers the hoarding of provisions for the purpose of raising the price a most heinous offence. Mohammed said, "Whosoever keepeth back grain forty days, in order to increase its price, is at variance with God, and God is at variance with him." "It is abominable to monopolize the necessaries of life, and food for cattle, in a city where such monopoly is likely to prove detrimental." (The Hedaya IV, XLIV, VI.)

In England, all measures tending to produce a scarcity of merchandise or labor by means of a monopoly was held to be in violation of the fundamental laws of the Kingdom. By the Stat. 21, Jac. I, Cap. 3, it was provided that:

"I. All Monopolies, and all Commissions of or for the sole buying, selling, making, working or using of any thing within the King's Dominions, or any other Monopolies, or of Power, Liberty, or Faculty to dispense with any others, or to give Licence or Tolleration to do, use or exercise any thing against the Tenor of any Law or Statute, or to give or make any Warrant for such Dispensation, Licence, or Tolleration, or to agree or compound for any Penalty or Forfeiture limited by any Statute, or for any Grant or Promise of any Benefit or Profit of any such Penalty, Forfeiture or Sum of Money, before Judgment thereupon had; and all Proclamations, Inhibitions, Restraints, Warrants of Assistances, and other matters and things whatsoever any way tending to the erecting, strengthening or countenancing thereof, are contrary to the Laws of the Realm, and shall be void and of none effect.

"II. All the matters and things aforesaid shall be examined, heard, tried and

• determined by the Common Laws of the Realm, and not otherwise; And all Persons are prohibited to use, exercise or put them in use."

The penalty was treble damages and double costs. Coke, in his commentaries on this Statute, discusses the evil in concise and forcible terms. (Institutes III, 85, Page 181.)

Agreements for interference with the distribution of commodities of various kinds, the control of them for speculative purposes, hoarding the necessaries of life, or diminishing their production, is punished by the laws of the United States with a fine not exceeding ten thousand dollars, or imprisonment for not more than two years, or both. (Barnes1 Federal Code, Sec. 10188.)

The Spanish Penal Code prescribes a penalty of from one month and one day to six months for conspiracy to raise, lower, or regulate the conditions of labor; and, when false rumors are spread to affect the price of articles of commerce, in addition to imprisonment, a fine of from five hundred to five thousand

•pesetas is imposed. "Los que se coligaren con el fin de encarecer 6 abaratar abusivamente el precio del trabajo 6 regular sus condiciones, serdn castigados, siempre que la coligacion hubiere comenzado a ejecutarse, con la, pena de arresto mayor."

"Esta pena se impondra en su grado 'maxima a los Jefes y promovedores de la coligacion y a los que para asegurar su exito emplearen violencias 6 amenazas, a no ser que por ellas merecieren mayor pena." (Codigo Penal de Espana, Arts. 556, 557.)

Monopoly of the necessaries of life is punished in Portugal with a fine, and imprisonment of from one to six months; conspiracy to> suspend, hinder, or raise the price of labor accompanied by threats, with imprisonment of from one to two years. "Os que tiverem promovido a colligagao ou a dirigirem, e bem assim os que usarem de violencia ou ameaga para assegurar a execucao, serdo punidos com a prisao de um a dois annos." (Codigo Penal Portuguez II, XI, I.)

TITLE LX. CONCERNING FAIRS AND MARKETS.

1. The Emperors Valens and Valentinian to Probus, Prsetorian Prefect.

Persons who either by Our authority, or through the indulgence of Our predecessors enjoy the privilege of holding markets or fairs, obtain the benefit of rescripts to the extent that suit cannot be brought against them either on account of their business or their slaves, while the fairs or markets are being held; nor can they be compelled by any individual to pay a certain price for the places which they temporarily occupy; nor can they, under the pretext of a private debt, be subjected to any annoyance while they are there.

TITLE LXI.

CONCERNING DUTIES ON MERCHANDISE, AND OFFENCES TO WHICH THEY ARE SUBJECT.

1. The Emperors Severus and Antoninus to Victorinus.

If you were legally manumitted before any question of the violation of the customs laws was raised, it is not just that you should be deprived of your status on this account.

2. The Same to Linuus.

An offence of this kind cannot be punished if it is alleged to have been committed five years ago, provided suit has not been brought for the property within that time; nor can the price of it be demanded under such circumstances, if it does not exist, and has not been fraudulently suppressed.

3. The Same to the Soldier Ingenuus.

We have consulted the welfare of all Our soldiers in not rendering them liable to the penalty for defrauding the customs by not making

The penalty prescribed by Italian law for the fraudulent diminution of provisions or their increase in price through fraudulent representations is imprisonment for from one to five years, and a fine of from five hundred to five thousand lire ($100 to $1000).

"Chiunque, con false notizie o altri mezzi fraudolenti, produce la deficienza, o il rincaro di sostanze alimentari, e punito con la reclusione da uno a cinque anni e con la multa da lire cinquecento a cinquemila." (Codice Penale del Regna d'ltalia, Art. 326.)

An attempt to either raise or lower wages by means of force, fraud, or threats in Prance subjects the culprit to a fine of from sixteen to three thousand francs, and imprisonment of from six days to three years. "Sera puni d'un emprisonne-ment de six jours a trois ans et d'une amende de 16 francs a 3000 francs, ou de I'une de ces deux peines seulement, quiconque, a I'aide de violences, voies de fait, menaces ou manoeuvres frauduleuses, aura a/mene ou maintenu, tente d'amener ou de maintenir une cessation concertee de travail, dans le but de forcer la hausse ou la baisse des salaires ou de porter atteinte au libre exercice de I'industrie ou du travail." (Code Penal de France, Art. 414.)—ED.

declarations. Therefore, dismissing any fear of this kind, if it is apparent that you owe any duties, pay them.

4. The Emperor Constantine to Rufus.

In farming out the collection of taxes, he shall have the preference who offers the highest bid, and the lease shall be made for not less than a term of three years; nor shall the time prescribed for collection be subject to interruption in any way. The said term having expired, it will be necessary again to farm out the right to the highest bidder, in like manner, at auction.

Given on the tenth of the Kalends of July, during the Consulate of the Csesar-Crispus, Consul for the second time, and Constantine, 321.

5. The Same to Menander.

No tax shall be collected by officials appointed for that purpose from residents in the provinces, on property employed for their own use, or on that of the Treasury, or on such as is used for cultivating the soil. We, however, subject all other property, exclusive of that above mentioned, or which is employed in trade, to the ordinary dues and charges; and the penalty of death is pronounced against the receivers of taxes, municipal employees, and other persons whose avarice tempts them to disobey this law.

6. The Emperors Valens and Valentinian to Florentinus, Count of the Sacred Largesses.

The same rule should be observed with reference to the property of persons in private life, so far as public duties are concerned. We mention this because some individuals produce rescripts by which they assert that they are released from the payment of taxes or duties on merchandise which it is customary to pay to the Treasury. Hence, if any private person should attempt to avail himself of a rescript of this kind, it shall be considered void, for the payment of duties is not unimportant, and should be made equally by all those who have charge of the sale or the transport of merchandise, with the exception of shipmasters, when they are proved to be transporting their own property.

7. The Same and Gratian to Arckelaus, Count of the East.

No one shall, under any circumstances, be permitted to pay less than one-eighth in the settlement of duties on merchandise, which is the usual amount fixed for all those who desire to engage in commerce, and no exception should be made in the case of soldiers.

8. The Emperors Gratian, Valentinian, and Theodosius to Palla-dius, Count of the Sacred Largesses.

Collectors of customs shall receive from the ambassadors of nations tributary to Our Empire, duties on merchandise, which they bring from their own country into this; but such merchandise as they are permitted by law to remove from Roman soil to their own country, they have a right to take away immune from payment, and free.

9. The Same to the Same Count of the Sacred Largesses.

We forbid any privilege to be exercised with reference to duties in Egypt and Augustanica, and We do not permit anyone to rashly claim the right to the transport of animals, which is only authorized when the ordinary duties are paid.

10. The Emperors Arcadius and Honoring to Rufinus, Praetorian Prefect.

We order that, whatever duties on merchandise municipalities may have established for their own advantage and that of their curise in order to defray expenses, whether this has been done for the benefit of the curise, or has been designed for some other use of the said municipalities, shall be confirmed, and remain in force for all time; and that no annoyance need be apprehended from persons petitioning against the collection of said duties.

11. The Same to Lampadius, Prtetorian Prefect.

If anyone, without the authority of the public lessees of saltpits, should purchase salt, or attempt to sell it, whether he acts upon his own responsibility, or is provided with one of Our Rescripts; this salt, together with the price paid for the same, shall be adjudged to the said lessees.

12. The Emperors Honorius and Theodosius to Cuso, Count of the Sacred Largesses.

We decree that where anything granted by pragmatic sanctions or Imperial Annotations, against the collection of taxes, has been bestowed as a favor, it shall be of no force or effect.

13. The Emperors Theodosius and Valentinian to Flavian, Prse-torian Prefect.

With the exception of those duties on merchandise which have always formed a part of Our Imperial patrimony, all duties shall be reserved for the cities of the Empire, after the expenses required for public necessities have been deducted. As the former rule was that two-thirds of these imposts should be paid into Our Treasury, We now order that the remaining third shall be at the disposal of the different cities and municipalities, that they may learn that these duties have been established more for their advantage than for that of others; therefore, the enjoyment of the portion designated shall be permitted to these cities so that they will have full power to farm them out to the extent of their interest in the same.

TITLE LXII. NEW DUTIES ON MERCHANDISE CANNOT BE ESTABLISHED.

1. The Emperor Severus and Antoninus to Vietorinus.

The collection of new duties should not be rashly permitted, but if your city is so poor that extraordinary means must be taken to

relieve it, state to the Governor of the province what you have set forth in your petition. He, after having diligently examined the matter with a view to the common welfare, shall write to Us what he has ascertained, and We will decide your case as We think best.

2. The Same to Callistianus.

New duties on merchandise cannot be established by the ordinance of a municipality.

3. The Emperors Gallienus and Valerian to Tuscits and Others.

New duties are not usually established by Emperors without reflection, and therefore a competent judge will forbid anything to be collected which is illegally demanded, and if what has been collected has been extorted contrary to law, he must order it to be returned.

4. The Emperor Constantine to Felix, Prsetorian Prefect.

If complaint of the greed of farmers of the Revenue should be made by the subjects of Our provinces, and it is proved that they have violated the ancient custom, as well as Our regulations, those who are guilty of so serious a crime shall be punished with perpetual exile.

The supervision of this employment is hereby conferred upon you and your successors.

TITLE LXIII. CONCERNING COMMERCE AND MERCHANTS.

1. The Emperors Valens and Valentinian to Julian, Count of the East.

Merchants who are attached to Our palace, as well as those forming part of the households of nobles, are admonished to acknowledge any claims which they owe (as honesty demands), in order that their example may be followed by all those who obtain profit from trade.

Given at Constantinople, on the fifteenth of the Kalends of May, during the Consulate of the Divine Jovian, and Varronian, 364.

2. The Emperors Gratian, Valentinian, and Theodosius to Tatian, Count of the Sacred Largesses.

Not only shall no gold be furnished to barbarians, but even if any should be found in their possession they must be deprived of it by artifice. If, however, gold should hereafter be given to barbarians by traders, in payment for slaves or other merchandise, they shall not be fined, but shall suffer death; and when a judge does not punish such a crime after he has discovered it, or conceals it, he shall be punished as an accomplice.

3. The Emperors Honorius and Theodosius to Theodore, Prsetorian Prefect.

We forbid persons of noble birth, or those who are conspicuous through the honors they enjoy, or are wealthy, to carry on any trade

which is injurious to cities, in order that the power to purchase and sell may be rendered more easy between plebeians and merchants.

4. The Same to Anthemim, Prsetorian Prefect.

Not only merchants who owe allegiance to Our government, but also those who are subject to the King of the Persians, must not hold markets beyond the places agreed upon at the time of the treaty concluded with the above-mentioned nation, in order to prevent the secrets of either kingdom from being disclosed (which is improper). Therefore, no subject of Our Empire shall hereafter presume to travel for the purpose of selling merchandise beyond Nisibis, Callini-cum, and Artaxata, nor think that he can exchange merchandise anywhere beyond the above-mentioned cities. All persons are hereby notified that if one makes a contract under such circumstances, any merchandise which has been either sold or purchased beyond said cities shall be confiscated by Our Treasury, and, in addition to this, the price which was paid, or any articles given in exchange shall be surrendered, and the offender sentenced to the penalty of perpetual exile.

Judges, and their subordinates also, shall be condemned to pay thirty pounds of gold for every contract entered into beyond the abovementioned limits, whenever any Romans or Persians have passed the said frontier to the forbidden ground, for the purpose of trade; with the exception of those envoys of the Persians who have at some time been despatched to Us and have brought merchandise to be exchanged, to whom, for the sake of humanity and on account of their character as ambassadors, We do not refuse the privilege of trading beyond the prescribed limits; unless, under the pretext of belonging to an embassy, and having remained for a long time in some province, they do not return to their own country; for, as they engage in trade, the penalty of this law will not unreasonably be imposed upon them, as well as upon those with whom they have contracted or resided.

5. The Same to ZEtius, Praetorian Prefect.

With a view to disposing of any attempt or claim to increase it, the membership of the association of merchants is hereby fixed at five hundred and sixty-three, and none shall be added to it, nor the number be altered; nor shall anyone have authority to substitute another in the place of a member who dies, but those who have died shall be replaced by others selected by your tribunal from the same class to which the deceased belonged, in the presence of the corporate body; and no privilege shall be granted to anyone of the members to exceed the above-mentioned number.

6. The Same to Maximus, Count of the Sacred Lar'gesses.

If those who have been convicted of having gone beyond the cities named in the ancient laws, or of having entertained foreign merchants for the purpose of trade, without the consent of the Count of Commerce; they cannot escape the confiscation of their property

and the penalty of perpetual exile. Therefore, all persons, whether they are in private life, hold some civil office, or belong to the army, are informed that they must absolutely abstain from any rash behavior of this kind, or be subjected to the punishments above mentioned.

TITLE LXIV.

CONCERNING THE EXCHANGE OF PROPERTY AND THE ACTIO PK^SCRIPTIS VERBIS.

1. The Emperor Gordian to Therasa.

If your paternal uncle had land for sale, and your father gave him another tract by way of price, although the value was not appraised, and you state that what you purchased was evicted, not on account of the injustice of the judge, but through your father's negligence, it is not unreasonable for you to ask to recover the amount of your interest by the action on purchase, if you have succeeded to the rights of your father. Where, however, the land was not for sale, but an exchange was made, and what you received from the other party was evicted, you can reasonably demand the tract given in exchange, for it should be returned if you desire this to be done.

2. The Emperors Diocletian and Maximian to Primitiva. It is a well-known rule of law that an exchange made of property in good faith such as you mention is equivalent to a sale.

3. The Same Emperors and Csesars to Leontius.

It is established that no one will obtain a right of action by virtue of a contract for exchange, where nothing was done, unless the stipulation based upon the obligation created by the words acquires one for the parties.

4. The Sam.e Emperors and Csesars to the Same Leontius.

As you state in your petition that a contract for exchange was made between you and another person, and the land which, was given by you has been sold, you are advised that you will not be entitled to any action against the purchaser, as he has received the title to the property from him to whom you do not deny that you transferred it by way of exchange.

If, however, a stipulation has been added to the contract, you will not be prevented from suing the creditors of the person with whom you made it. But where no stipulation was added, you will be entitled to bring the Actio prasscriptis verbis, so that either the terms of the contract may be observed in your behalf, or that what you gave in exchange for the land of the other party may be restored to you, as the contract was not executed.

5. The Same Emperors and Caesars to Theodolana.

As you allege that your father conveyed a certain tract of land to the person against whom you filed your petition, on condition that he

would receive a certain house in exchange, he having appeared before the Governor of the province, the latter will order the other party to comply with his agreement, for if he should find that the consideration for the conveyance of the land was not transferred, he shall order that whatever was given conditionally shall be restored to you.

6. The Same Emperors and Csesars to Protogencs.

The authority of the law shows that where property has been delivered under a certain condition, the uncertain civil action prse-scriptis verbis should be granted, if the condition is not complied with.

7. The Same Emperors and Csesars to Timotheus.

It has long since been decided that a sale cannot take place by giving property instead of money. Therefore, as you assert that you have delivered a certain amount of grain to Callimacus and Acamatus, under the condition that they would furnish you a specified quantity of oil, if no stipulation was made, and they do not fulfill the contract, you can bring a personal action to recover the amount of grain which you gave, on the ground that the contract was not carried out, if you desire to do so.

8. The Same Emperors and Cassars to Paulina.

Property having been given to Candidus in consideration that he would furnish you every month or every year with what was agreed upon, as an agreement of this kind cannot be considered to be one without consideration, because the condition has been fortified by the delivery of the property, you will be entitled to the Actio prtescriptis verbis to compel the fulfillment of the contract in accordance with your demand.

TITLE LXV. CONCERNING LEASING AND HIRING.

1. The Emperor Antoninus to Agrippina.

The owner of a warehouse is not liable to the lessee for the exertion of superior force, or the breaking in of robbers. Where, however, neither of these things take place, if any property which has been deposited in the warehouses should be destroyed, the owner must indemnify the lessee for the loss of the same.

2. The Same to Epictetus.

If you bring an action on lease against persons by whom you have been employed in the construction of a building, you will recover by this action, which is one of good faith, whatever is due to you, with interest.

3. The Same to Callimorphonia.

If you have paid to the owner the entire amount of the rent of a house, which you say that you have leased, you cannot be ejected

against your consent, unless the owner can prove that the building is required for his own use, or he desires to repair it, or you have not acted as you should have done with reference to the property leased.

4. The Emperor Alexander to Sabinus.

Certain rules are founded on the Rescripts of the Emperor Antoninus Pius, namely, that the owners of warehouses which have been broken into shall be compelled to produce before the persons making complaint the guards who were placed over the said warehouses, and if they do so, they shall not incur any further responsibility; and you, having applied to the Governor of the province, can cause this to be done.

Where, however, circumstances demand the infliction of a more severe penalty, the magistrate must send the culprit to Domitius Ulpian, Prastorian Prefect, and My relative. If the owners of the warehouses specifically promised that they themselves would guard them, they themselves should be produced.

5. The Same to Petroma.

It is a certain rule of law that property which tenants, with the consent of their masters, have brought upon leased land, will be liable by the right of pledge to the owners of the said land. When, however, a house is leased, it is not necessary for the owner to know that articles have been brought into it, in order to subject them to the right of pledge.

6. The Same to Victorinus.

No one is prevented from leasing to another property which he himself has rented for his own enjoyment, if nothing to the contrary has been agreed upon.

7. The Same to Terentianus.

If Henries leased the collection of taxes for the continuous term of five years, and you became his surety; and, after the said term has elapsed, he renews the lease, and is considered solvent, and you have not consented, but have requested the return of your bond, a competent judge will understand that you must not be rendered liable for any time subsequent to the term of five years.

8. The Same to Higinius.

If you have leased a tract of land for a certain quantity of something to be furnished every year, although this may not have been stated in the lease (as the custom of the country demanded), so that if, on account of the effect of bad weather or some other accident, loss should result, you will be responsible; and if it is proved that any barren years were not compensated by the abundance of others, you will, in accordance with good faith, be justified in asking to be released from your promise, and the judge who decides the appeal must observe this rule.

9. The Same to Fuscus.

It is not necessary for the purchaser of land to permit the tenant to whom the former owner leased it to remain until his lease has expired, unless he bought the property under this condition. If, however, it is proved by any agreement that he did consent that the tenant should remain until the expiration of his lease, even though this may not have been reduced to writing, he will be compelled by an action of good faith to comply with the contract which he made.

10. The Emperor Gordian to Pomponius.

You are departing from the truth, if you assume that the heirs of a lessee do not succeed him in a lease; for, whether the lease is perpetual or temporary, it descends to the heirs, and where it is temporary, the heir is bound by the provisions of the contract for the unexpired part of the term.

11. The Emperor Philip to Theodora.

It has frequently been stated in Rescripts that lessees or their heirs, after the expiration of their terms, cannot be compelled to remain against their consent.

12. The Same to Nica.

With reference to the damage committed by robbers against the property which you have leased, you have no reason to demand indemnification by the owner of said property, whom you do not accuse of being guilty of any offence.

13. The Emperors Valerian and Gallienus, and the Csesar Valerian, to Heraclida.

If a lease has been divided so that each party has a share, some of you cannot be sued by the others. If, however, all the lessees have bound themselves to the lessor, he should not be deprived of the right of proceeding against any one of the lessees whom he may select. You, however, will have the power to tender what is due to the lessor, so that you yourselves can demand that the obligations, for which you have been sued by the others under the terms of the said lease, shall be transferred to you.

14. The Same Emperors and Csesars, to Julian and Others.

If those who were employed by you to purchase wheat and barley for public subsistence, after having received the money, failed to carry out their contracts, you can bring the action on hiring against them.

15. The Same Emperors and Csesars to Euphrosina.

If you have been ejected from the land by the lessee, as you can bring suit against him under the lease, you can also exact and retain from the lessor the penalty which it was agreed upon should be paid if the terms of the lease were violated.

16. The Same Emperors and Csesars to Timotheus.

The provisions of a lease must be observed, and no more than was agreed upon can be demanded as rent. If, however, the term for which the land was leased has expired, and the lessee remains in possession, it is considered that the lease and the obligation of pledge are both renewed by tacit consent.

17. The Emperors Diocletian and Maximian to Hosalius.

The Governor of the province shall see that what is due as rent is paid without delay, and he is aware that as an action on leasing and hiring is one of good faith, it admits of the collection of legal interest when there is any delay.

18. The Same to Amnus.

The Governor of the province shall order any crops collected during the time following that when the locusts by their ravages caused sterility to be returned to you, if it is established that you are entitled to them in accordance with the custom of former times.

19. The Same to Valerius.

The terms of a contract with reference to leasing and hiring shall, by all means, be observed, where nothing contrary to the custom of the country has been expressly provided. If, however, certain persons, in opposition to the provisions of the contract and the custom of the country, have remitted the payment of rent, this cannot prejudice the rights of the others.

20. The Same to Carpophorus.

Anyone who leases his own property, thinking that it belongs to another, does not transfer the ownership of the same, but makes a lease which is void.

21. The Same Emperors and C&sars to Antonia.

If, for a certain quantity of oil, you have leased the crops of your land for a year, you cannot withdraw from the contract, if it was made in good faith, for the reason that someone else offered you a larger quantity of oil.

22. The Same Emperors and Ctesars to Papinianus.

If those against whom you have filed your petition leased their services to you for a certain time, a competent judge, after proper cause is shown, shall order the agreement to be observed, so far as good faith demands.

23. The Same Emperors and Csesars to Priscus.

In order to establish the proof of ownership of property, or to defend the title to the same, it will not be sufficient to plead that a lease was made to him who subsequently claimed it, as the ignorance or

mistake of the owner does not confer consent; but if the latter should be defeated in the end, the contract of the lease is held never to have existed, for no one can legally transfer his own property to himself.

24. The Same Emperors and Cazsars to Antoninus.

A contract of leasing and hiring is considered valid, even if no instrument evidencing it has been drawn up; in accordance with which you cannot sue the wife of the lessor, even though the lease may not have been reduced to writing. However, with reference to the subsequent time during which you allege that the woman has been your lessee, after having proved the statements in your petition, notify her to pay you the rent in full.

25. The Same and the Caesars to Epagathus.

When anyone has received a field, or any other property whatsoever under a lease, he should first restore possession of it, and then litigate as to the ownership of the same.

26. The Same Emperors and Cassars to Oplo and Hermogenes.

If you have complied with the provisions of the lease, any instrument drawn up with reference to the same loses its effect. Where, however, anything of yours remains upon the land, or has been forcibly removed therefrom, the Governor of the province shall order it to be returned to you.

27. The Same Emperors and Cassars to Nero.

If the owner of land has promised to pay you, as stipulator, any expenses you may have incurred under the lease in behalf of the tenants, a competent judge will order you to be reimbursed. When, however, the agreement was made without a stipulation, you are informed that a right of action does not arise from a contract without consideration.

28. The Same Emperors and Ctesars to the Same Nero.

In contracts of leasing and hiring it is established that the lessor can bring suit on the ground of fraud or want of care, but not for unavoidable accident.

29. The Same Emperors and Csesars to Julian.

As you allege that the lessor destroyed buildings which he received in good condition, the Governor of the province shall order the said buildings to be restored by his heirs in accordance with the contract made between you.

30. The Emperors Theodosius and Valerian to Florentius, Prs&-torian Prefect.

A decurion cannot be the attorney, the lessee, the surety, or the mandator of a lessor, and, moreover, We decree that no obligation arising from a contract of this kind shall bind either the lessee or lessor.

31. The Emperor Leo to Aspar, Officer of the Army.

We forbid our soldiers to become either the lessees of the property of others, or the attorneys, sureties, or mandators of lessees, lest, by neglecting the practice of arms, they may devote themselves to rural labors, and, on account of their being in military service, may become a menace to their neighbors. Therefore, let them devote themselves with arms, and not to private matters, so that, always being with their companies and their standards, they may be able to protect the government, by which they are supported, from all the calamities of war.

32. The Emperor Zeno to Adamantius, Prsetorian Prefect.

No one who has rented a house, a shop, or a farm shall, after his lease has expired, be permitted to bring suit against a person who has leased the same property on the same terms, with the consent of its owner, on the ground that the lease is unlawful, or attempt to injure him thereby, but every facility shall be afforded the owners of property to lease their houses, their lands, or their shops to anyone they wish, and those who have leased them shall, by all means, be protected from any annoyance of this kind; unless contracts especially entered into in writing with the owners, or with those who afterwards leased the property, and which were drawn up according to law, should justify them in instituting proceedings.

Where, however, anyone in private life thinks that he has a right to raise a controversy of this kind forbidden by Our Sacred Constitutions, after having been severely whipped, he shall suffer the penalty of exile, and if a public official does so, he shall be fined ten pounds of gold.

33. The Same to Sebastian, Praetorian Prefect.

If lessees of the property of others, or those who have precarious possession of the same, or their heirs, do not surrender it when the owners desire to recover it, but wait until final judgment has been rendered against them, they shall not only be compelled to return the land which was leased, but also to pay the successful party a sum equal to its value, as in the case of one who seizes the property of another.

34. The Emperor Justinian to the Senate.

Although it is well known that former Emperors have promulgated many decrees with regard to soldiers who lease the lands or houses of others; still, because the subject has been so neglected, and soldiers, not being mindful of the limits prescribed by Our Sacred Constitutions, venture to employ themselves in base occupations of this kind, and having abandoned the public welfare and their victorious standards, are only too eager to rent the property of others, and not to manifest the power of their arms against the enemy, but to turn them against their neighbors, and even against the unfortunate tenants whom they have undertaken to protect, We have considered it necessary to publish this most Sacred Constitution for the purpose of thoroughly and completely correcting this abuse.

Hence We order that all who are serving in the army, whether they are of age or minors (and We designate as soldiers not only those who, enrolled in the military service, and serving under distinguished commanders, but also such as are included in the eleven faithful divisions called scholse, as well as those who have received the name of "confederates," and are commanded by different subordinate officers), shall hereafter absolutely abstain from leasing the property of others; and they are hereby notified that, under a contract of this kind, from the very beginning, they will forfeit their rank and privileges without the performance of any other act, and without any sentence being passed upon them; and that they cannot be restored to their former positions either through the indulgence of the Emperor, or by the consent or permission of any military magistrate, to whose command they are subject; in order that they may not think that by leasing the property of others they will not lose their reputation, and from soldiers become civilians, and from being honored become infamous; and that they shall be compelled to restore, without delay or procrastination, whatever they may have received from the public, if they have made a contract of this kind which We have absolutely forbidden. Those who, after the promulgation of this law, permit their property to be leased to persons of this kind, are also notified that, having by their efforts, violated Our law, they shall not be permitted to collect anything; so that, as in the case of a person who attempts to seize the property of another, anyone who selects a soldier as his agent shall be deprived of any profit which may be due to him.

Moreover, all persons shall have a right to bring an accusation under this law before a competent judge, and he who, under such circumstances, appears as an informer shall be understood to be more worthy of praise than blame. The penalty which We have decreed shall be enforced in future cases against soldiers who have violated Our law and those persons who have allowed them to rent their property.

TITLE LXVI. CONCERNING THE LAW OF EMPHYTEUSIS.

1. The Emperor Zeno to Sebastian, Praetorian Prefect.

The right of emphyteusis should not be classed with those conferred by lease or alienation, but We have decreed that it shall constitute a third species of contract, separate from and without resemblance to either of those previously mentioned, and shall have its own nature and definition, and be a just and valid agreement by which everything that was consented to between the contracting parties in all cases, even in those which are accidental, shall, if reduced to writing, remain under all circumstances, firm and inviolable; so that if no provision has been made for the occurrence of accidents, and if, through some unforeseen event which may arise, the property which was the subject of the emphyteusis should be destroyed, the loss will be borne, not by the emphyteuta, who had nothing left, but by the owner of the

property who, for the reason that it was the result of a fatality, must be responsible for it, as the contract contained nothing with reference to the liability of the other party. When, however, the damage is trifling, and only affected a portion of the property, or the substance of the latter was uninjured, the emphyteuta should not hesitate to assume the loss himself.

2. The Emperor Justinian to Demosthenes, Prsetoricm Prefect.

With reference to emphyteutical contracts, We decree that if any agreements should be inserted in them, they shall be observed with all the other provisions, and even in the case of the ejection for non-compliance of the person who undertook to carry them out, this shall still apply if he does not produce receipts to show that the rent or public taxes on the land have been paid. Where, however, nothing was agreed on this point, and he did not pay to the owner either the rent or the taxes for the entire term of three years, or produce receipts for the same, and the latter should desire to do so, he can eject him from the land, and the former cannot oppose him on the ground of improvements made by him or of such ameliorations as are designated emponemata, or by demanding a penalty; but, if the owner prefers, he can be unconditionally ejected, even though the former may allege that he has never been annoyed by what is assigned as the reason for his expulsion; for no one should wait for an agreement or notice, but should appear in person of his own accord, and spontaneously discharge his indebtedness, in accordance with what has been provided in general terms by one of Our former laws.

However, in order that the owner of the land may not under this pretext make use of his power to expel his tenants, and refuse to receive the rent, and thus, by means of an artifice of this kind, the term of three years having expired, he who received the emphyteusis be deprived of his right, We grant him permission to tender the rent in the presence of witnesses, and having sealed it up, and deposited it, as prescribed by law, to entertain no fear of ejection.

3. The Same to Julian, Prsetorian Prefect.

As a doubt arose whether the emphyteuta should obtain the consent of the owner of the land to alienate his improvements which are called by the Greek word empomenata, and whether he was required also to obtain his consent to transfer his emphyteutical right to another, We decree that when an emphyteutical instrument contains any provisions on this point they shall be observed. If, however, no contract of this kind was made, or the instrument containing the emphyteutical contract has been lost, the emphyteuta can under no circumstances be permitted to sell his improvements, or transfer his rights under the emphyteusis to others, without the consent of the owner of the land. But lest owners, taking advantage of this opportunity, may not permit their emphyteutas to receive the cost of the improvements which they made, but deceive them, and in this manner the advantage to which the emphyteuta is entitled will be lost, We

decree that notice shall be given to the owner in which the statement is made of the price which he could obtain from another, and if the owner should prefer to pay it himself, and give as much as the emphy-teuta could actually obtain from a third party, the owner himself should by all means be preferred in making the sale.

When, however, the term of two months has elapsed after he was notified, and the owner refuses to do this, permission is granted to the emphyteuta to sell his improvements to anyone whom he wishes, without the consent of the owner, provided he disposes of them to such persons as are not usually forbidden by emphyteutical contracts to make such purchases.

Where improvements are sold to others in the manner above stated, the owner shall be required to accept the new emphyteuta, as, where the former one prefers to transfer his right to persons who are not prohibited from receiving it, but to those to whom it is permitted to do so, and are solvent according to the emphyteutical law, the owners cannot oppose it, but must permit the new emphyteuta to enter into possession, not by someone to whom they have farmed it out, or by an attorney, but by themselves, or by their letters, or (if they cannot, or are unwilling to do so) by their declaration made in this City before the illustrious Superintendent of Taxes, or by an attestation made in the province, in the presence of notaries, and before the Governors or defenders of the same.

And in order to prevent owners tempted by avarice from extorting a large sum of money on this account (which We have ascertained has been done up to the present time), they shall not, in consideration of their signature or their declarations, be permitted to receive more than the fiftieth part of the price, or of the appraisement of the land which is transferred to the other party.

When the owner of the property absolutely refuses to accept the new emphyteuta or purchaser of the improvements, and he neglects to do this within two months after notice has been served upon him, the emphyteuta shall be permitted to transfer to others, either his right or his improvements, even against the consent of the owner. If, however, the emphyteuta should conduct himself otherwise than is prescribed by Our Constitution, he shall forfeit his emphyteutical right.

THE CODE OF OUR LORD AND MOST HOLY EMPEROR JUSTINIAN.

SECOND EDITION. BOOK V.

TITLE I.

CONCERNING BETROTHALS, BETROTHAL PLEDGES, AND MARRIAGE BROKERS.

1. The Emperors Diocletian and Maximian, and the Csesars, to Annonaria.

She who has already been betrothed to one man is not forbidden to repudiate her contract, and marry another.

2. The Emperor Constcmtius, and, the Csesar Constans, to Cozlius Probinus, Prefect of the City.

If a man should, while residing in the same province agree to marry a girl and fail to do so within the term of two years, and the girl, after the expiration of the said time, should afterwards form an union with another, she will not be guilty of fraud who, by contracting marriage, did not any longer suffer her vows to be treated with contempt.1

3. The Emperors Gratian, Valentinian, and Theodosius to Eutro-ffius, Prsetorian Prefect.

If, after the pledges of betrothal have been given, either of the parties should die, We order the gifts to be returned, unless the deceased person had already given cause for not celebrating the marriage.

1 No right of action for damages based on breach of promise of marriage was recognized by the Civil Law, and it is also unknown to the European nations whose jurisprudence is derived from it. This remedy, which affords such favorable opportunities for the exercise of private blackmail and professional rapacity, is of English origin. Unauthorized by the Common Law, it only obtained a foothold in the English courts about the middle of the seventeenth century, and when first brought to judicial notice, eminent jurists asserted that there was no precedent for such a proceeding. This was probably due to the fact that, by the Canon Law, a solemn promise to marry is practically equivalent to actual matrimony.

In Scotland, where the intervention of neither priest nor magistrate is essential, and the parties may merely declare their consent in the presence of witnesses, an informal promise of marriage, followed by copulation, renders them husband and wife without any further ceremony. (Vide Erskine, Principles of the Law of Scotland, I, VI, 2.)

The abuse of the laws authorizing suits for breach of promise is far more flagrant in the United States than elsewhere.—ED.

4. The Emperors Honorius and Theodosius to Marianus, Prsetorian Prefect.

When a father makes a contract with reference to the marriage of his daughter, and is not able to carry it out on account of his death, whatever is proved to have been agreed to by the betrothed parties shall remain inviolate, and any compromise shown to have been made for the benefit of a minor by a guardian.or curator shall be of no force or effect; for it would be extremely unjust for the decision of a guardian or a curator which was perhaps purchased, to be adopted in opposition to the wish of a father; especially as the greater number of women are even found to favor opinions contrary to their own interests.

Given on the third of the Nones of November, during the Consulate of Honorius, Consul for the thirteenth time, and Theodosius, Consul for the tenth time, 422.

5. The Emperors Leo and Anthemius to Erythrius, Prsetorian Prefect.

A woman, who is her own mistress, is liable for double the amount of the betrothal gift, that is to say, for what she received and as much again; but no more than that, if, at the time she had completed her twenty-fifth year, or had obtained indulgence on account of her age which was proved in a competent court. She will be liable for the simple amount, that is to say, for only what she received, if she was a minor, whether she was a virgin or a widow, and had received the pledge of betrothal herself, or by her guardian or curator, or anyone else.

It is, however, established that when either a father or a mother of lawful age has either jointly or severally received a betrothal gift for their daughter, or a grandfather or a great-grandfather has received it for a granddaughter or a great-granddaughter, he shall be liable for double the amount.

We order that these rules shall be observed if the intended marriage has not been prevented, on account of the person, or his or her condition, or any other cause prohibited by the laws or general constitutions; for then We order that the betrothal gift shall be returned as having been given without a cause, just as if nothing had been done.

(1) We also add to this that, even when the intended marriage is not prohibited by law, if, after the pledge has been given, the girl refuses to marry her betrothed on account of his being of low character, or a spendthrift; or because of his shameless conduct; or for the reason that he belongs to a different religion or sect; or because he is a man incapable of performing the sexual act (from which the hope of offspring arises) ; or on account of some other just excuse; or if, indeed, it should be proved that before the betrothal gift was made, the woman herself, or her parents knew these facts; they themselves will be to blame. If, however, not being aware of them, they accepted the betrothal gift, or if, after it was given, some good reason arose to

induce them to change their minds, after returning the gift, they shall be free from any penalty.

We decree that all these rules shall likewise be observed with ref-. erence to men who are betrothed, whether they have received or bestowed such gifts, and that the penalty of quadruple damages, which was mentioned in former laws by which the amount of the betrothal gift was prescribed, shall be abolished; unless something with reference to the said quadruple damages should be especially agreed upon by the common consent of the contracting parties.

Where anything providing for a penalty exceeding that prescribed by the terms of this law has been inserted in the stipulation, it shall be void, so far as both parties are concerned, as when marriage is contracted absolute freedom should exist.

Given on the Kalends of July, during the Consulate of Martian and Zeno, 469.

TITLE II.

WHERE THE GOVERNOR OF A PROVINCE OR ANY OP His SUBORDINATES GIVE BETROTHAL PLEDGES.

1. The Emperors Gratian, Valentinian, and Theodosius to Eutro-pius, Prsetorian Prefect.

When anyone placed in a public position, and invested with the administration of a province, who is able to inspire fear in parents, guardians, curators, or the parties themselves that are about to contract matrimony, bestows betrothal gifts, We order that if, hereafter, either the parents or the parties themselves should change their minds, they shall not only be released from the restraints of the law, but also be free from the prescribed penalty, and, moreover, shall profit by the gifts bestowed, if they do not think that they should be returned.

We desire that this law shall not only include public officials, but also their children, grandchildren, relatives, and subordinates; that is to say, that it shall apply to their counsellors and attendants, whom the said public officials employ in the matter. We do not forbid the marriage to take place after the functionary has relinquished his office, when the betrothed parties consent that the obligation for the articles donated during the term of the persons of whom We have spoken shall continue to exist.

Given at Thessalonica, on the fifteenth of the Kalends of July, under the Consulate of Gratian, Consul for the fifth time, and Theodosius, 280.

TITLE III.

CONCERNING ANTENUPTIAL DONATIONS, OR THOSE GIVEN ON ACCOUNT OF MARRIAGE AND BETROTHALS.

1. The Emperors Severus and Antoninus to Metrodorus. It makes a great deal of difference whether the property that a prospective husband donates to his future wife is delivered to her,

and is afterwards received by him as dowry; or whether by giving it he intended to increase the dowry, so that he might appear to have received a larger sum than actually came into his hands.

In the first instance, the gift is not prohibited by law, and the property given by way of donation is included in the dowry, and can be recovered by the action of dowry. In the latter instance, however, the donation has no legal effect, and what has been given as part of the dowry cannot be recovered.

2. The Emperor Alexander to Attains.

If you prove before the Governor of the province that you have given presents to the parents of Eutychia, in order to be able to marry her, he will order that unless Eutychia marries you what you have given shall be returned to you.

3. The Same to Marcella.

Where a promise has already been made by your brother on account of his betrothal, even if it is included in the stipulation, it still cannot be enforced, as the wife deceived her husband with reference to the dowry. Therefore you can properly interpose an exception on the ground of bad faith against an action brought under the stipulation.

4. The Emperor Gordian to Marcellus.

Anything which is given to a betrothed woman by her intended husband, under the condition that she shall acquire the ownership of the property when the marriage takes place, is without any effect.

5. The Emperors Valerian and Gallienus to Theodora.

You cannot legally recover anything which the person who pretended to be unmarried promised you as his betrothed, and who at the time that he asked you to marry him had another wife at home, as you are not his betrothed, for the reason that he already had a wife.

6. The Emperor Aurelian to "Donata.

As you state that a simple donation was made to you on the day of your marriage, and as it seems to be doubtful whether it was given by your betrothed or your husband, a distinction must be made; for if the gift was received in your own house, it will be considered as an ante-nuptial donation. If, however, your betrothed gave it in his house, it can be revoked, for you then were his wife.

7. The Emperors Cams, Carinus, and Numerian to Luciana.

If, when ante-nuptial gifts are made, it is agreed, and the agreement is reduced to writing, that if anything should happen to prevent one of the contracting parties from carrying out his or her intention, and the marriage from taking place, then whatever was given shall be returned to whoever gave it, or to his heir; he who obtains the estate of the person from whom the girl received the gifts under the abovementioned condition can recover the same by law.

8. The Emperors Diocletian and Maximian to Euphrosina.

Where anyone, over the age of twenty-five years, before marriage, has (even previous to the betrothal) given to his intended wife a tract of land, and she has been placed in possession of the same, it is a positive and clear rule of law that he cannot alienate it afterwards under any title, if he lives; or leave it by will, if he dies.

9. The Same Emperors and Ctesars to Julian.

As you acknowledge that you have given a present to the betrothed of your son, such a perfected donation which your consent and the authority of the law have ratified cannot be rescinded by Our Rescript.

10. The Same Emperors and Csesars to Dionysius.

If the betrothed of your daughter gave her a slave, and you, by way of liberality, presented her with beasts of burden, and the marriage did not take place, and he, contrary to the provisions of the law, took away what he gave, a reciprocal restitution of what was donated on both sides will not take place, but an action for the recovery of what he unlawfully removed will lie.

11. The Same Emperors and Csesars to Nea.

If your betrothed, as a mark of his generosity, gave you property which belonged to him, the donation does not become void for the reason that he was afterwards killed by the enemy.

12. The Same Emperors and Czesars to Timothea and Cleotina.

If your mother has given certain lands to the betrothed or husband of her daughter without stating any condition as to their recovery, and has placed him in the possession of the same, and the marriage should be dissolved by divorce, the donation, being perfect, will not be annulled.

13. The Same Emperors and Csesars to Alexander.

The creditors of a husband cannot sue his betrothed to obtain the property given to her by way of donation, unless they can prove that it was previously encumbered to them.

14. The Same, and the Csesars, to Aurelia.

If the betrothed of your daughter gave her some slaves, with the consent of her mother, they having been received as dowry without any appraisement, and he should die after marriage, the mother, who was also the heir of the deceased husband, will not make proper restitution by offering their value in their stead.

15. The Emperor Constantine to Maximus, Urban Prefect.

As the opinion of the ancients, which declared that donations made to a betrothed woman were valid, even if the marriage was not cele-

brated, is displeasing to Us, We order that anything legally given by way of donation to betrothed persons by one another shall be subject to the following rule, namely, that whether it was given in consideration of marriage or not, or whether the parties are under the control of their parents or independent, the gift shall be considered as having been given in consideration of future marriage, if it is bestowed with the consent of their parents; and if, indeed, the man or his parents are unwilling to consent to the marriage, whatever has been donated by him cannot be recovered if it has been delivered, and if any of the property should be in the hands of the donor, it shall be transferred to the betrothed woman, and her heirs, without any attempt at evasion. Where, however, the betrothed woman, or the person under whose control she is, is responsible for the marriage not being contracted, then the gift shall be returned to the betrothed man himself, or to his heirs, without any deduction, by means of a personal action for recovery, or by an equitable action in rem.

This rule must also be observed where the donation is made by the woman to her betrothed.

Given at Rome, on the sixth of the Kalends of September, during the Consulate of Constantine, Consul for the fifth time, and Licinius, 319.

16. The Same to Tiberianus, Vicegerent of the Spains.

If, after a donation has been made by a man to his betrothed, and the kiss has taken place, one of the parties should happen to die before the marriage, We order that half of the property which was given shall belong to the survivor, and the other half to the heirs of the deceased, no matter to what degree they may belong, or under what right they may succeed; so that the donation may appear to stand so far as half of it is concerned, and be annulled with reference to the other half. If the kiss did not take place, and either of the parties should die, the donation shall be wholly void, and be returned to the donor and his heirs. Whether the kiss took place or not, if either of the parties should die before the marriage, and anything was given to the man by way of donation (which rarely happens) it shall be entirely annulled, and the ownership of the property bestowed shall be transferred to the woman who donated it, or to her successors.1

Given on the thirteenth of the Kalends of May, during the Consulate of Nepotian and Pacatus, 336.

17. The Emperors Theodosius and Valentinian to Hierus, Prse-torian Prefect.

The interests of female minors are very properly provided for, when they are deprived of the assistance of their fathers, by confirming donations made before marriage, where the acknowledgment of the parties has been omitted.

1 Among the Romans, the kiss given to the prospective bride was, as appears from the text, an essential part of the ceremony of betrothal; and survives in that now usually bestowed immediately after the marriage has been solemnized.—ED.

Given at Constantinople, on the tenth of the Kalends of Marc'h, during the Consulate of Taurus and Felix, 428.

18. The Emperor Zeno to Sebastian, Prsstorian Prefect.

If a father, after having had children by a former marriage, should marry a second time, or not, he cannot be compelled to leave any part of an ante-nuptial donation to the children of his first wife, which either he himself, or someone else gave to the said wife the mother of their common children; as a mother cannot be compelled to preserve anything for any children by her first marriage (after she has contracted a second one) out of the dowry which she gave to their father, or that any other person gave him in her behalf, and with all the more reason if she did not take a second husband.

19. The Emperor Justinian to Archelaus, Prsetorian Prefect.

If, during marriage, the wife, or anyone else in her name, should form the design to increase her dowry, it shall still be permitted the husband, or anyone else in his behalf, to increase the antenuptial donation to the extent that the dowry is augmented; and it cannot be objected to generosity of this kind that it was forbidden at the time of the marriage, for indulgence should be granted to the common consent of the parties, for fear that if the power of increasing the donation is refused, the increase of the dowry may be interfered with.

We order that the same rule shall also apply to those marriages in which it sometimes happens that no ante-nuptial donation is given, but that the woman only offers a dowry to her husband; so that when she increases her dowry, the husband shall likewise be permitted to increase his donation to his wife, to the same extent that the dowry is known to be increased, if the parties have consented to the return or retention of the increased dowry or donation; whether this has been done in compliance with the agreements prescribed by the ancients, or with those at present established, which, having reference to the ante-nuptial donation and the constitution of the dowry, were entered into at the commencement of the marriage.

Again, the rights of hypothecation, which arise from the increase of the dowry or donation, acquire their force from the date when the said hypothecation was contracted, and should not be referred to the time of the former dowry, or to that of the ante-nuptial donation.

If, however, on the other hand, both the husband and wife should agree to diminish the dowry and the ante-nuptial donation, they shall be permitted to diminish the latter in the same way that the diminution of the dowry is effected, and any agreements entered into with reference to the diminution of both shall be understood to be valid and legal, except, for instance, in those cases in which either the husband, having children by a former marriage, marries again, or the wife in like manner, while children by a former marriage are living, Unites herself to a second husband; for in this second marriage, whether the husband or the wife, or both of them are concerned (if this should happen), We decree that any diminution of the dowry or

the ante-nuptial donation shall be prohibited, in order to avoid any advantage being taken of children by a former marriage.

Extract from Novel 97, Chapter VII. Latin Text.

Now, however, if one party makes an increase the other must also do so, and if the husband is not prevented by his debts, the increase can be made of any kind of property whatsoever. But if he is in debt, in order to avoid any suspicion of fraud against his creditors, all his immovable property will be liable for the increase of the dowry, for if the woman, while owning real estate, should give movable property to increase her dowry, she cannot avail herself of her privilege against other creditors with reference to this portion of it.

20. The Emperor Justinian to John, Prsetorian Prefect.

As many complaints have been made to Us against husbands who, for the purpose of deceiving their wives, have made them donations which from ancient times have been designated ante-nuptial, but have neglected to have them recorded in order that they may remain imperfect, and they themselves enjoy the advantages of the dowry, while their wives are left without any remedy, so far as the antenuptial donation is concerned, We order that this abuse shall be corrected by changing the name of the gift, which shall hereafter be called not an ante-nuptial donation, but a donation on account of marriage.

Therefore, as a woman is allowed to give a dowry to her husband during marriage, why should the husband only be permitted to give a donation to his wife before marriage? Can this difference be considered reasonable, since, because of the weakness of the sex it is better to come to the relief of wives than of husbands? For as the dowry can only be given on account of marriage, and none can be held to exist without it, and marriage can even be celebrated without a dowry, so, in the case of gifts donated by husbands, or by others in their behalf, the latter should be absolutely free to make such donations during marriage, because a present of this kind can be regarded as an advantage to be enjoyed by the wife, and not as a simple present; and for this reason the founders of the ancient law included dowries among donations.

Hence if an ante-nuptial donation does not differ either in name or fact from a dowry, why should it not, in like manner, be given during marriage? Therefore, We order that all persons, whether they have contracted marriage before or afterwards, shall be permitted to give donations to their wives on account of the gift of the dowry, in order that they may not be understood to be simple gifts, but bestowed in consideration of the dowry and the marriage.

Extract from Novel 61, Chapter I. Latin Text.

An action in rem, founded on a donation of this kind, is granted to the woman against all possessors.

END OP THE EXTRACT.

THE TEXT OF THE CODE FOLLOWS.

Simple donations are not made on account of marriage, but they are forbidden to be made for this reason; lest this may be done for other considerations, for instance, on account of licentiousness, or because of the poverty of one of the parties, and not be attributable to the affection growing out of the marriage itself; therefore if the dowry has already been given, and the husband, not having made an antenuptial donation, prefers to make his wife a present (provided it does not exceed the amount of the dowry, and he states that the said present is not made as a simple donation, but on account of the dowry which has already been given, and which itself amounts to as much as the donation), he shall be permitted to do so, and the said present shall be inserted in the dotal contracts. Where, however, a donation of this kind has taken place, even though the dotal instrument may previously have been drawn up, and no mention of a post nuptial donation included therein, it shall be understood to have been agreed upon in accordance with the provisions of the dotal contract, to enable both the dowry as well as the donation to stand upon the same footing, in order that the Leonine Constitution (which has reference to the quality of the agreement, and not to the amount of the property, but to the shares thereof), may, in cases of this kind, remain intact, and not only be observed without alteration, but that any ambiguity which it contains may be removed by the interpretation which We have made. For where unequal contracts have been entered into, We decree that the greater part of the benefit shall be reduced, so as to be equal to the less, and both parties enjoy the smaller amount to the same extent.

Extract from Novel 91, Chapter II. Latin Text.

When a dowry has been given, it should be followed by a donation on account of marriage. Moreover, if the woman is ready to pay her dowry, and her husband refuses to accept it, she can call witnesses to establish this fact, and if the dowry is composed of personal property, she can deposit it, after sealing it up; or having appeared in court, she can demand that her husband be notified, and, under such circumstances, the acceptance of the donation cannot be declined. If, however, there is any delay in giving the husband the dowry, the donation can also be refused.

END OF THE EXTRACT.

THE TEXT OF THE CODE FOLLOWS.

(1) In like manner, if a gift of this kind should be made (which was formerly designated an ante-nuptial donation but is now styled one on account of marriage), and it has not been evidenced by the execution of an instrument, it will be lawful to do this during marriage; and no objection can be raised on account of the marriage having taken place. If, however, this is permitted to be done after marriage, much more reason exists for the instrument to be drawn up.

Moreover, the Constitution which We have promulgated with ref-

erence to the increase of dowries and ante-nuptial donations shall remain intact and inviolate; and all other laws either enacted by the ancients or by Us, with reference to simple donations made between husband and wife during marriage, shall remain in full force.

Extract from Novel 127, Chapter I. Latin Text.

The result of this is that a gift in consideration of marriage is effected by means of a special contract, which does not require to be recorded, even if the donation is bestowed by another, provided it is done in the name of the husband, and he himself mentions this in the contract. This rule also applies to the woman. If, however, the husband, or anyone else who made the donation, did not have it recorded, and the amount is legal, and by the dotal agreement it is granted to the husband, he will not be entitled to any action with reference to it. A father is not compelled to preserve for the children by a former marriage a donation which he made to his wife in consideration of marriage, even if he should marry again. The case, however, is otherwise when a part of the dowry remains in the hands of the husband, or a part of the donation in the hands of the wife; for then it should be preserved for the children by the former marriage.

Extract from Novel 127, Chapter II. Latin Text.

At present, a diminution is forbidden to avoid fraud being committed against the children by a former marriage; and as much must be given to each of them as the husband gave to his second wife, even though one child may have received a smaller amount.

The same rule also applies to the woman.

TITLE IV. CONCERNING MARRIAGE.

1. The Emperors Severus and Antoninus to Porcius.

When a question arises with reference to the marriage of a young girl, and the guardian, the mother, and the relatives cannot agree as to the selection of a husband, the decision of the Governor of the province must be obtained.

2. The Same to Trophima.

If your father consented to your marriage, it makes no difference, so far as you are concerned, if he did not sign the marriage contract.

3. The Same to Valeria,.

You can, before a competent judge, accuse a freedman who has dared to marry his patroness, or the daughter, the wife, the granddaughter, or the great-granddaughter of his patron, in order that a decision may be rendered in accordance with the customs of the present times, which very properly regard an union of this kind as odious.

4. The Emperor Alexander to Perpetuus.

Children cannot marry the concubines of their ascendants, for the reason that an act of this kind when committed by them is not praiseworthy, and indicates a lack of filial duty. Those who violate this law are guilty of the crime of fornication.

5. The Same to Maxima.

If (as you allege) your husband's father, under whose power he was, having learned of your marriage, did not oppose it, you should not fear that he will not recognize his grandson.

6. The Emperor Gordian to Valeria.

When, contrary to the command of the Emperor, a marriage with an official has taken place in a province with the consent of the woman, still, if she remains of the same mind after the man has relinquished his employment, the marriage becomes legal, and hence any children who have been conceived and born of it are legitimate, as is set forth in the opinion of the most learned Paulus.

7. The Same to Aper.

If (as you state) after a complaint has been made to you by your daughter against her husband, the marriage was dissolved, and the parties again became united without your consent, the marriage is illegitimate, as it was contracted without the consent of the father, under whose control the woman was, and therefore, as your daughter does not claim her dowry, you will not be prevented from bringing suit to recover it.

'8. The Same to Romanus.

In questions relating to marriage, neither the authority of the curator (which only extends to the administration of the property of the minor) nor that of the blood-relatives or connections can be interposed, but the will of the person whose marriage in question should be considered.

9. The Emperor Probus to Fortunatus.

When, with the knowledge of your neighbors or others, you keep your wife at home for the purpose of having children, and a daughter is born of this marriage, although neither the nuptial contract nor the birth certificate of the daughter may have been published, the fact of the marriage and the legitimate birth of your daughter are none the less established on that account.

10. The Emperors Diocletian and Maximian, and the Csesars, to Paulina.

As you allege that you did not attain to the rank of an illustrious woman because your father was a senator, but for the reason that you contracted marriage with a member of the Senate, you will lose the exalted position which you obtained from your first husband, and be

reduced to your former status, if you should subsequently marry a man of inferior degree.

11. The Same Emperors and Csesars to Alexander.

If your wife is detained by her parents without her consent, and Our friend the Governor of the province is notified of the fact, he will grant your request, and having caused the woman to be produced, you can consult her wishes in the matter.

12. The Same Emperors and Csesars to Sabinus.

The policy of the law does not permit that even a son under paternal control shall be compelled to marry against his consent. Therefore if you observe the ordinary legal precepts, you will not be prevented from marrying the wife whom you may choose, if you desire to do so, provided, however, that your father consents to the marriage.

13. The Same Emperors and Csesars to Onesimus.

Instruments drawn up for the proof of marriage are not suitable for that purpose when the ceremony does not take place and they contain what is not true; but where no instruments have been drawn up, a marriage which has been contracted with the requisite formalities is not void, since by the failure to reduce the contract to writing, the other evidence of its solemnization is not invalidated.

14. The Same Emperors and Csesars to Titius.

No one can be compelled either to contract marriage in the beginning, or to renew it after it has once been dissolved. Therefore you understand that the unrestrained power of dissolving and contracting marriage cannot be rendered a matter of necessity.

15. The Same Emperors and Csssars to Tatian.

Anyone who has manumitted a slave is not forbidden to marry her, if he does not belong to one of those classes of persons especially prohibited from doing so; and it is absolutely certain that legitimate children can be born to a father by such a marriage.

Extract from Novel 78, Chapter III. Latin Text.

By the new law, however, no rank prevents anyone from marrying his freedwoman, provided dotal instruments are drawn up with reference to the marriage.

16. The Same Emperors and Csesars to Rhodonus.

It is proper that a father who exposed his daughter, who was taken by you and brought up at your expense, and under your care, should consent for her to be married to your son. If, however, he refuses to give his consent, he should be compelled to do so only in case he indemnifies you for the maintenance which you provided for his daughter.

17. The Same Emperors and Csesars.

No one shall be permitted to contract marriage with his daughter, his granddaughter, or his great-granddaughter, his mother, his grandmother, or his great-grandmother; and, in the collateral line, with his paternal or maternal aunt, his sister, the daughter of his sister, or her granddaughter; nor with the daughter of his brother, or his granddaughter; and among connections by marriage, with his stepdaughter, his stepmother, his daughter-in-law, his mother-in-law, or any other persons prohibited by ancient law, with whom We desire that all persons shall abstain from contracting marriage.

18. The Emperors Valentinian, Valens, and Gratian to the Senate.

Widows under the age of twenty-five, even though they may have obtained the freedom of emancipation, still cannot marry a second time without the consent of their fathers. If, however, in the choice of a husband, the desire of the woman is opposed to that of her father, and other relatives, it is established (just as has already been decreed with reference to the marriage of virgins), that judicial authority should be interposed for the purpose of examination, and if the parties are equal in family, and in morals, he shall be considered preferable whom the woman has selected for herself. But in order to prevent those who are nearest in degree to the succession of widows, from hindering the latter from contracting honorable marriage, where any suspicion of this kind arises, We desire that authority of the courts should be invoked to prevent her estate from descending to them, if death should occur.

Given on the seventeenth of the Kalends of August, during the Consulate of Gratian, Consul for the second time, and Probus, 371.

19. The Emperors Arcadius and Honorius to Eutychianus, Prse-torian Prefect.

Marriage between first cousins is permitted by this salutary law, so that the former one having been annulled, and the temptation to calumny having been restrained, marriage between such cousins shall be considered lawful, whether they are the children of two brothers, or of two sisters, or of brother and sister; and any children by such a marriage shall be legitimate and can become the heirs of their parents.

Given during the Consulate of Stilicho, Consul for the second time, and Anthemius, 405.

20. The Emperors Honorius and Theodosius to Theodore, Praetorian Prefect.

The wishes of the father are to be considered in case of the marriage of daughters under paternal control. Where, however, a girl is her own mistress, and is under twenty-five years of age, the consent of her father must be obtained. Where she is deprived of the aid of her father, the consent of her mother and her kindred, as well as of herself, will be necessary.

If, however, having lost both her parents, she has been placed under the protection of a curator, and a dispute should arise between several honorable candidates for marriage, so that it may be doubtful to which one it would be advantageous for the girl to be united, and she, through modesty, is unwilling to express her preference in the presence of her relatives, the judge is authorized to decide to which suitor it is best that she be married.

21. The Emperors Theodosius and Valentinian to Bassus, Prse-torian Prefect.

We grant free permission to soldiers, from those of no military rank up to that of protector, to contract marriage with freeborn women, without any of the usual formalities.

22. The Same to Hierius, Prsetorian Prefect.

If the instruments relating to an ante-nuptial contract or a dowry are lacking, and the ceremony and other formalities associated with marriage have been omitted, let no one think that, on account of this neglect, marriage which has otherwise been legally performed is not valid; or that on this account children born of it can be deprived of their rights as legitimate; for among persons of equal standing, whose union is not prevented by any law, matrimonial union will take place by their own consent and the testimony of their friends.1

Given at Constantinople, on the tenth of the Kalends of March, during the Consulate of Felix and Taurus, 428.

23. The Emperor Justinian to Demosthenes, Prsetorian Prefect.

Believing that it is a peculiar duty of Imperial beneficence at all times not only to consider the convenience of Our subjects, but also to attempt to supply their needs, We have determined that the errors of women on account of which, through the weakness of their sex, they have chosen to be guilty of dishonorable conduct, should be corrected by a display of proper moderation, and that they should by no means be deprived of the hope of an improvement of status, so that, taking this into consideration, they may the more readily abandon the improvident and disgraceful choice of life which they have made.

For We believe that the benevolence of God, and His exceeding clemency towards the human race, should be imitated by Us (as far as Our nature will permit), who is always willing to pardon the sins daily committed by man, accept Our repentance, and bring us to a better condition. Hence, We should seem to be unworthy of pardon Ourselves were We to fail to act in this manner with reference to those subject to Our empire.

(1) Therefore, as it would be unjust for slaves, to whom their liberty has been given, to be raised by Imperial indulgence to the status of men who are born free, and, by the effect of an Imperial privilege of this kind, be placed in the same position as if they had

1 "Consensus non concubitus facit matrimonium."—ED.

never been slaves, but were freeborn; and that women who had devoted themselves to theatrical performances, and, afterwards having become disgusted with this degraded status, abandoned their infamous occupation and obtained better repute, should have no hope of obtaining any benefit from the Emperor, who had the power to place them in the condition in which they could have remained, if they had never been guilty of dishonorable acts, We, by the present most merciful law, grant them this Imperial benefit under the condition that where, having deserted their evil and disgraceful condition, they embrace a more proper life, and conduct themselves honorably, they shall be permitted to petition Us to grant them Our Divine permission to contract legal marriage when they are unquestionably worthy of it. Those who may be united with them need be under no apprehension, nor think that such marriages are void by the provisions of former laws; but, on the other hand, they shall remain valid, and be considered just as if the women had never previously led dishonorable lives, whether their husbands are invested with office, or, for some other reason, are prohibited from marrying women of the stage, provided, however, that the marriage can be proved by dotal contracts reduced to writing. For women of this kind having been purified from all blemishes, and, as it were, restored to the condition in which they were born, We desire that no disgraceful epithet be applied to them, and that no difference shall exist between them and those who have never committed a similar breach of morality.

(2) Children born of a marriage of this kind shall be legitimate, and the proper heirs of their father, even though he may have other lawful heirs by a former marriage; so that such children may also, without any obstacle, be able to acquire the estates of their parents, either ab intestato, or under the terms of a will.

(3) If, however, women of this description, after an Imperial Rescript has been granted them in accordance with their request, should defer contracting marriage, We order that their. reputations shall, nevertheless, remain intact, as in the case of all others who may desire to transfer their property to anyone; and that they shall be competent to receive anything bequeathed to them, in accordance with law, or an estate which may descend to them on the ground of intestacy.

Extract from Novel 51. Latin Text.

These privileges shall be granted them, even if they may have sworn that they will continue in their former profession, because it is expressly stated by the laws that an oath to perform an unlawful act must not be observed, and that the penalty for perjury, if any exists, shall be inflicted upon him who exacts an oath of this description.

END OF THE EXTRACT.

THE TEXT OP THF CODE FOLLOWS.

(4) We also decree that such of these women as have obtained a privilege from the Emperor shall occupy the same position as those

who have obtained some other benefit which was not bestowed by the sovereign, but was acquired by them as a voluntary donation before their marriage; for, by a concession of this kind, every other stigma on account of which women are forbidden to contract lawful marriage with certain men is absolutely removed.

(5) To this We add that when the daughters of women of this kind are born after the purification of their mother from the disgrace of her former life, they shall not be considered as the children of females belonging to the stage, or be subject to the laws which forbid certain men to marry such women. Where, however, they were born before that time, they shall be permitted to petition the Emperor for a Rescript, which should be granted without any opposition, by means of which they may be permitted to marry, just as if they were not the daughters of actresses; and those men shall not be prohibited from marrying them who are forbidden to take as wives girls belonging to the stage, either on account of their own rank, or for some other reason; provided, however, that in every instance, dotal instruments in writing are executed by the parties concerned.

(6) If, however, a girl born of a theatrical mother, who practiced her profession until the time of her death, should, after her mother's decease, petition for Imperial indulgence, and obtain it, she shall be freed from the blemish of her mother's reputation, and herself be granted permission to marry; and she also can without the fear of former laws be united in matrimony with those who not long ago were prohibited from marrying the daughter of an actress.

(7) Moreover, We have thought that what was prescribed by former laws (although this was somewhat obscure) should be abolished, namely, that a marriage contracted between persons of unequal rank shall not be considered valid, unless dotal instruments with reference to it were executed. When, however, this does not take place, such marriages shall still be absolutely valid, without any distinction of persons, provided the women are free and freeborn, and that no suspicion of any criminal or incestuous union arises, for We, under all circumstances, annul criminal and incestuous unions, as well as those which were especially prohibited by the provisions of former laws; with the exception, however, of such as We authorize by the present decree, and direct shall be considered legal, in accordance with the rights of marriage.1

Extract from Novel 117, Chapter IV. Latin Text.

Those who are invested with exalted dignity, up to persons styled illustrious, cannot legally contract matrimony, unless dotal instruments have been drawn up in writing, although marriages previously contracted will stand. Barbarians are excepted from this rule, but all others can legally marry under the inducement of affection alone.

1 These laws were unquestionably promulgated in a vain attempt to render the Empress Theodora, who had been an actress, and whose vices had been the scandal of the Empire, respectable._ED.

THE TEXT OF THE CODE FOLLOWS.

(8) Therefore these matters having been settled in this manner, by this general law which must hereafter be observed, We order that any such unions which have subsequently been made shall be regulated in accordance with the aforesaid provisions; so that where anyone has married a wife of this kind during Our reign (as has already been stated), and has children by her, they shall be legitimate, and be entitled to succeed to their father ab intestato, as well as under a will, and the wife, as well as any children hereafter born of her, shall also be considered legitimate.

24. The Same to the Senate.

We order that if anyone should, in any agreement whatsoever, whether it is drawn up for the purpose of giving something, or for the performance of some act, or for not giving anything, or for the non-performance of some act, either refer to the time of his marriage or merely mention the marriage itself, the condition of the contract shall not be understood to have been complied with, or not to have been dispensed with, unless the ceremony of marriage actually takes place; and that the age at which marriage can be solemnized, which in the case of a female is after she has completed her twelfth year, and in case of a male after he has completed his fourteenth year, should not be considered, but the time when the marriage was performed shall only be taken into account; for in this way all disputes arising from the ancient law are disposed of, and the immense number of volumes on this subject are reduced to very few.

25. The Same to Julian, Prsetorian Prefect.

The question was discussed by the ancients whether the children of insane parents, under whose control they were, could marry. Almost all the legal authorities admitted that the daughter of an insane person could marry, for they thought it was sufficient if the father did not object, but it was doubted whether a son could do so. Ulpian refers to a Constitution of the Emperor Marcus, which does not mention lunatics, but in general terms alludes to children of persons of weak minds, whether they are males or females, who contract marriage; and he states that they can do so without applying to the Emperor.

Another doubt arises from this constitution, that is to say, whether what it provides, with reference to persons of weak minds, should also apply to those who are insane; and whether the children of lunatics are also entitled to relief, just as those of a person of feeble intellect. Therefore, for the purpose of disposing of these doubts and difficulties, We order that whatever appears to be lacking in the Constitution of the Divine Marcus shall be supplied by the following provision, that is to say, that not only the children of a person of weak intellect, but also those of one who is insane, of either sex, can legally contract marriage; and that the dowry, as well as the ante-nuptial donation, shall be furnished by their curators. The amount of the dowry, as well as that of the ante-nuptial donation, must, in this Imperial City,

be determined by the estimate of the most excellent Urban Prefect, and in the provinces by that of the illustrious Governors, or by the bishops of the various dioceses; and the curator of the person who has lost his mind or has become insane should be present, as well as those highest in rank in their families, so that nothing may arise in a case of this kind, either in this Imperial City, or in the provinces, to cause any loss of the property of said insane person, or of him of enfeebled intellect; and these proceedings shall be undertaken gratuitously, so that a human misfortune of this description may not be aggravated by any expense.

26. The Same to Julian, Prsetorian Prefect.

If anyone should grant freedom to his foster-daughter, and marry her, a doubt arose among the ancients whether a marriage of this kind should be considered lawful or not. Therefore We, desiring to resolve this long-existing doubt, decree that such a marriage is not prohibited, for if these marriages have their origin in affection, and We find nothing impious or contrary to law in such a union, why should We think that they ought not to be allowed? No man can be found who is so wicked as to afterwards marry a girl whom, in the first place, he treated as his daughter; but it should be believed that he did not originally bring her up as his daughter, but gave her her freedom, and afterwards deemed her worthy to be married to him. A woman should, by all means, be prevented from marrying her godfather who received her in baptism whether she is his foster-child or not, as nothing else can be so productive of paternal affection and just prohibition of marriage as a tie of this kind, by means of which, through the mediation of God, the souls of the parties in question are united.

27. The Same to John, Prsetorian Prefect.

We order that marriages which take place between men and women who are more or less than fifty or sixty years of age, and which are prohibited by the Lex Julia et Papia, cannot be prevented in any way, or on either side, where the men consent.

28. The Same to John, Prsetorian Prefect.

Where a man has a wife who is a freedwoman, and afterwards becomes illustrious by being raised to the dignity of Senator, the question is raised by Ulpian whether the marriage is dissolved by his promotion, because the Lex Papia does not permit marriages to exist between senators and freedwomen. Hence We, following the judgment of God, do not permit that, in one and the same marriage, the happiness of the husband should become the misfortune of his wife, so that his wife may be debased to the extent that he is elevated, and indeed that she should absolutely be lost to him; therefore, as severity of this kind ought not to exist in our times, and the marriage should stand, and the wife rise with her husband and share his distinction, the marriage shall remain valid, and shall be, to no extent, affected by an occurrence of this description.

In like manner, where the daughter of a private person marries a freedman, and her father is afterwards raised to the senatorial dignity, the cruel provision of the Papian Law is silent on this point, and the marriage celebrated between the daughter of one who has become a senator and a freedman must not be dissolved on this account, so that the prosperity of the father-in-law may not be attained without the loss of his son-in-law; for it is better that the harshness of the Papian Law should be mitigated in both instances, rather than, by observing it, the marriages of men should be annulled, not on account of any vice of the wife or the husband, but because of the good fortune of both, for, as this defect proceeds from one source, the result is that it is removed by one law.

TITLE V.

CONCERNING MARRIAGES WHICH ARE INCESTUOUS AND

VOID.

1. The Emperor Alexander to Amphigonus.

If your freedwoman, who is also your wife, leaves you without your consent, she cannot marry another if you desire to retain her as your wife.

2. The Emperors DiocletioM and Maximum to Sebastiana.

It is a matter of common notoriety that no one who is subject to the jurisdiction of the Roman Empfre can have two wives at once; as, by the Edict of the Praetor, men of this description are branded with infamy, and a competent judge will not suffer a crime of this kind to go unpunished.

3. The Emperor Constantine to Patroclus.

Marriage to a female slave cannot exist, for only slaves are born of an union of this kind. Therefore, We order that decurions, induced by licentious desires for female slaves, shall not resort to the houses of powerful men; and if a decurion, without the knowledge of the stewards or superintendents of the same, shall be found living with the female slave of another, We order that the woman shall be sentenced by the judge to the mines, and the decurion himself shall be deported to an island; and if he has been freed from the control of his father, and has neither children, parents, nor any near relatives who can be called to his succession as heirs at law, his property shall be confiscated for the benefit of the city in which he held the office of decurion. If, however, the stewards or superintendents of the house in which the offence was committed were aware of it, or, after it had been discovered, were unwilling to make it known, it is proper that they also should be sentenced to the mines.

If the owner of the house permitted this to be done, or, after having heard of it, concealed it, and the act was committed in the country, the land, together with the slaves and the cattle, as well as

all other property requisite for agriculture, shall be confiscated to the Treasury. If, however, the act was committed in a city, We order that half of all the property shall be confiscated by way of increasing the penalty, because the offence, having been perpetrated in the owner's residence, he was unwilling to disclose it as soon as it became known to him.

4. The Emperors Valentinian, Theodosius, and Arcadius to Andro-macus, Count of Private Affairs.

When anyone marries contrary to the provisions of the laws, or in violation of the Mandates and Constitutions of the Emperors, nothing shall be acquired through such a marriage, whether an antenuptial donation of any kind was given before or afterwards. We order that everything which was bestowed by the liberality of one of the parties upon the other shall be taken from him or her, as being unworthy of having it, and confiscated to the Treasury; there being excepted from this rule such men and women as, through some serious mistake, which was neither affected nor simulated, have been deceived for any good cause, or have erred on account of their youth. It has, however, been decided that they alone shall be free from the restraints of Our law who, having discovered their error, or having arrived at their majority, take steps to dissolve an union of this description without delay.

5. The Same to Cynegius.

We absolutely prohibit marriage with the wife of a brother, or with two sisters, even where a previous marriage has been dissolved in any way whatsoever.

6. The Emperors Arcadius and Honorius to Eutychianus, Prss-torian Prefect.

If anyone should pollute himself by an incestuous or prohibited marriage, he can retain possession of his own property as long as he lives, but he must not think that he has a wife, or any children by her, nor can he, during his lifetime, donate anything to the aforesaid persons even through the interposition of a third party; nor can he leave them any property at the time of his death. If a dowry has been formally given or promised, it shall, in compliance with the ancient laws, be confiscated to Our Treasury. He can bequeath nothing to strangers by his will, but, whether he dies testate or intestate, his heirs will succeed him by law, provided he has children born in just and lawful wedlock; that is to say, if he has among his descendants a son, a daughter, a grandson, a granddaughter, a great-grandson, or a great-granddaughter; or among his ascendants, a father, a mother, a grandfather, or a grandmother; or in the collateral line, a brother, a sister, a paternal uncle, or a paternal aunt. He shall have a right to make a will, and leave what he wishes only to such persons as he may select, and who, according to the tenor of Our Imperial Rescript, are entitled to the succession.

Where any of the persons whom We have mentioned is shown to have advised the contraction of the incestuous marriage, he shall be absolutely excluded from the estate of the deceased, and the heir who is next in degree shall succeed in his stead.

Moreover, what We have provided with reference to men shall also be observed with regard to women who have polluted themselves with such marriages as those above mentioned. When, however, the persons referred to as being next of kin are not living, the estate shall be confiscated to Our Treasury.

Given at Constantinople, on the sixth of the Ides of December, during the Consulate of Arcadius, Consul for the fourth time, and Honorius, Consul for the third time, 396.

Extract from Novel 12, Chapter I. Latin Text.

The penalty imposed upon anyone who contracts an incestuous marriage is the confiscation of his property, including not only the dowry, but everything else, exile, and the loss of rank (if he enjoys it), and also scourging when he is of inferior degree; and any woman who commits a similar offence shall suffer the same punishment. If the offender has legitimate children, who become their own masters by the crime of their father, his property shall pass to them, provided that he is supported by them, but if there are no children, it shall be confiscated to the Treasury.

Extract from Novel 89, Last Chapter.

Children should not be called natural who are born of an execrable, incestuous or prohibited marriage, but should be considered as unworthy of inheriting their father's estate, or of being supported by him.

7. The Emperors Valentinian and Martian to Palladius, Praetorian Prefect.

We do not understand a low or abject woman to be one who, although she may be poor, is descended from freeborn parents. Therefore We have decided that Senators and persons of the highest rank can marry women who are the children of freeborn parents, even though they are poor; and that no distinction exists between freeborn women and those who are more opulent, on account of the good fortune of the latter. We only consider those women to be low and abject persons who are slaves, the daughters of slaves, freedwomen, and the daughters of freedwomen, actresses, and their daughters, the daughters of tavern-keepers, of proprietors of houses of prostitution, and of gladiators; or women who make their bodies articles of merchandise; therefore it is only proper for Us to forbid the marriage of Senators with women belonging to the classes which We have just enumerated.

Given at Constantinople, on the day before the Nones of April, during the Consulate of Jstius, and Asterius, 454.

8. The Emperor Zeno to Epinicus, Prsstorian Prefect.

Although certain Egyptians have married the wives of their deceased brothers, for the reason that they were said to have remained virgins after their marriage, being of the opinion that sexual intercourse had not taken place between them (which has been held by certain legal authorities), and that, on this account, no marriage was considered to have been actually consummated; and while matrimonial unions of this description which took place under such circumstances were valid, still, We order by the present law that, if any such marriages should be celebrated, those who contract them, as well as their children, shall be subject to the provisions of the ancient laws, and that the marriages shall not, according to the example of the Egyptians above referred to, be considered to be either valid, or capable of being rendered so.

9. The Emperor Anastasius to Severianus, Pr&torian Prefect.

All persons governed by Our Empire are notified that they must abstain from incestuous marriages. For We decree that all rescripts, pragmatic sanctions, or impious constitutions which, during the period of tyranny, permitted certain persons to give the name of marriage to wicked unions, and allowed anyone to marry his niece, his sister, or his sister-in-law, and to live in the basest associations with her, or sanctioned any other unions of this kind, to be of no force or effect, lest, by culpable dissimulation, such abominable license may be confirmed.

TITLE VI.

CONCERNING THE PROHIBITION OP MARRIAGE BETWEEN A FEMALE WARD AND HER GUARDIAN OR CURATOR, OR

His SON.

1. The Emperors Severus and Antoninus to Marinus.

The authority of the Decree of the Senate, by which marriage between a female ward and the son of her guardian is very properly forbidden, must not be evaded under the pretext of ignorance and want of experience.

2. The Emperor Alexander to Byruus.

The mother of a female ward is not prohibited from contracting marriage with the guardian of her daughter, or the son of her guardian.

3. The Same to Rogatianus.

As you allege that your father, at a time when you say that you were not under his control, was appointed curator of the woman whom you married, after you had had children by her, and as the marriage already solemnized cannot be vitiated by a subsequent occurrence, you need have no apprehension that, under a just interpretation of

the law, the children which you have will be considered not to have been legitimately born. In order, however, that all doubt may be removed, your father, as well as your wife, should insist that another curator be appointed in his stead; for your wife will have the power to demand an account of his administration from the person who was substituted for him.

4. The Emperor Philip to Higina.

There can be no doubt that a freedman who gave his female ward, the daughter of his patron, in marriage to his natural son who was born in slavery and was afterwards manumitted, is liable under the provisions of the Decree of the Senate, which forbids marriages of this description.

5. The Emperor Philip, and the Csesar Philip, to Apuleius.

You have been falsely informed that a curator cannot marry his daughter to a minor in his charge.

6. The Emperors Valerian and Gallienus to Lucius.

If you married your father's female ward before the account of the guardianship was rendered, or even after it was rendered, but before she attained her twenty-fifth year, or before the available year expired, you cannot be considered to have contracted marriage with her, or to have had a child by such an union. Where, however, the father of the girl requested that the marriage should take place at the time of his death, and this was done in accordance with law, the child will be considered legitimate.

7. The Emperors Diocletian and Maximian, and the Ctesars, to Paragonius.

If a guardian or a curator should, without having obtained an Imperial Rescript for that purpose, marry his ward or a minor in his charge either to himself or to his son, he shall be branded with infamy as having confessed that he had been guilty of mismanagement of the guardianship, because, by an union of this kind, he had attempted to conceal fraud committed during his administration; and hence any dowry which was given can be recovered by a personal action.

8. The Emperors Leo and Anthemius to Erythrius, Prsetorian Prefect.

If anyone, having fraudulently assumed the name of guardian or curator, that is to say has, without proper authority, administered the affairs of a female minor in the capacity of her guardian, curator, or agent, and has either married her himself, or given her in marriage to his son, We decree that a matrimonial alliance of this kind shall stand, and not be annulled like that of an actual guardian; in order that where children are born of marriages contracted in this designing or malignant manner, or dowries have been given or promised on account of them, they may not be subjected to injury or annoyance.

TITLE VII.

WHERE ANYONE CLOTHED WITH POWER, OR ANY OF His

SUBORDINATES, ATTEMPTS TO MARRY A FEMALE SUBJECT

TO His JURISDICTION.

1. The Emperors Gratian, Valentinian, and Theodosius to Theodore, Prsetorian Prefect.

When any person invested with ordinary power, or other authority, makes use of it for the purpose of contracting marriage, if the woman herself, or her parents are unwilling (whether she is a ward, a virgin living with her father, or a widow who is her own mistress, no matter what position she may occupy), and he is convicted of either employing or of having employed threats against the persons who are unwilling, for the purpose of accomplishing his design, We decree that he shall be liable to a fine of ten pounds of gold for having made such an attempt, even though he may not have effected a marriage forbidden by law; and, as he has forfeited his honor, We prohibit him from availing himself of the dignity which he has acquired, and as he has made such bad use of his office, if he refuses to obey Our laws, he shall, by way of penalty, be forbidden by the judge to live for the term of two years in the province in which he so exceeded his authority.

It is also added that, if he still retains his office, the person whom he attempted to take advantage of by conduct of this kind shall be permitted to bring a complaint immediately, and, with her household, decline to submit to the jurisdiction of the magistrate concerned; and the execution of this law shall devolve upon the defenders of every city, and the subordinate officials of the court. And, indeed, if an ordinary judge is accused of an offence of this kind, all the affairs of his household, as well as all the civil and criminal business, shall be brought before his deputy, as long as the said judge remains in office. Where, however, his deputy, or anyone else invested with similar authority, has undertaken to employ violence in the contraction of a marriage of this kind, the ordinary judge, on the other hand, shall interpose his authority. But where both of them are liable to suspicion, the protection of such households shall be especially undertaken by the illustrious prefecture, as long as the aforesaid magistrates remain in office.

Given at Thessalonica, on the fifteenth of the Kalends of May, during the Consulate of Gratian, Consul for the second time, and Theodosius, 380.

TITLE Vill.

CONCERNING MARRIAGE DEMANDED IN ACCORDANCE WITH THE TERMS OP A RESCRIPT.

1. The Emperors Honorius and Theodosius to Theodore, Prsetorian Prefect.

Certain persons, in violation of the provisions of the ancient law, think that they have a right to demand authority to contract a mar-

riage which they understand is forbidden, by means of a fraudulent request made to Us; and they often pretend that they have obtained the consent of the girl. For this reason We, by the present law, forbid all marriages of this description. Hence, if anyone, by means of a fraudulent petition, obtains permission to contract a marriage of this kind, contrary to the provisions of this law, let him entertain no doubt that he will suffer the loss of his property, and the penalty of deportation, and that the marriage which he has made by such forbidden means having been annulled, he will not have any legitimate children born of such an union, nor any pardon or indulgence, as the rescript or-annotation will be considered void, except in those cases where the marriage or the betrothal has been requested by the parents of the girl, or where, in conformity with the provisions of the law, they demand that what has been given as a betrothal pledge shall be returned, together with the prescribed penalty.

Given on the Kalends of February, during the Consulate of Honorius, Consul for the eighth time, and Theodosius, Consul for the third time, 409.

2. The Emperor Zeno to Basilius, Prsetorian Prefect.

We again absolutely forbid, under all circumstances, the abominable crime of the marriage of an uncle and a niece, which has already been prohibited under the severest penalties by the Imperial Constitutions. We also hereafter refuse to all persons permission to ask for such a marriage (or rather for such a contagion), in order that everyone may know that if he should fraudulently obtain consent for what even the right of a petition is hereby denied, it will be of no advantage to him.

TITLE IX. CONCERNING SECOND MARRIAGES.

1. The Emperors Gratian, Valentinian, and Theodosius to Eutro-pius, Prsetorian Prefect.

Any woman, who hastens to contract a second marriage without having properly mourned for her first husband, becomes infamous by the effect of a well-known law; and besides, she cannot give to her second husband by way of dowry more than a third part of the property, nor can she leave him by her will more than a third of her estate.

Moreover, she will not be entitled to any inheritances, legacies, or trusts left to her by a last will, or by a donation mortis causa, for We order that all these things shall be claimed by the heirs, the co-heirs, or successors ab intestato of the deceased, lest We may not seem to have in view the benefit of the Treasury while We are attempting to correct this violation of morality. She shall also lose whatever her husband left her by his last will, even though the property bequeathed to her by her first husband may be without an owner, on account of her premature marriage; and in the first place, We decree that it shall descend to the ten persons enumerated in the Edict of the Praetor, that

is to say, to the ascendants and descendants, and next in the collateral line as far as the second degree (the regular order of degrees being, of course, observed), and then it shall be acquired by the Treasury. Again, We do not permit such a woman, who has become infamous, to claim any estate on the ground of intestacy, either by the civil or praetorian law, beyond the third degree.

Given on the fifteenth of the Kalends of January, during the Consulate of Gratian and Theodosius, 380.

Extract from Novel 22, Chapter XL; and Novel 34, Chapter II. Latin Text.

A woman who brings forth a child within the time prescribed for mourning shall be liable to the same penalty, provided there is no doubt that the said offspring does not belong to the deceased, for she should also be deprived of the usufruct of the ante-nuptial donation.

The same rule applies to a woman who, having accepted the guardianship of her children, marries a second time, in violation of her oath, without having previously applied for a guardian, rendered an account, and paid everything that she owed. At present, however, by a subsequent law, the oath is not exacted of her, but if she contracts a second marriage, she will be deprived of the guardianship.

2. The Same to Eutropius, Praetorian Prefect.

Where a woman who has lost her husband hastens to marry another within the term of a year (for We have added a short time to be observed after the ten months formerly prescribed, although We think that the entire period is extremely brief), she shall be branded with opprobrium, and be deprived of the rights and honors due to persons of noble and distinguished rank, and shall lose everything which she acquired from the estate of her first husband, either at the time of betrothal, or by the last will of the deceased.

Given at Constantinople, on the third of the Kalends of June, during the Consulate of Eucherius and Syagrius, 381.

3. The Same to Theodore, Prtetorian Prefect.

Women who have had children by their first husbands, and marry a second time after the prescribed term of mourning has elapsed, transmit intact to their children all the property which they have received from their former husbands, whether they obtained anything by marriage, by donations mortis causa, directly by will, under a trust, by virtue of a legacy, or through any other evidence of liberality from the estates of their first husbands (as has been previously stated), and they can transmit it to any one of their children (provided the latter is one of those whom We have decided to be entitled to such a succession), and whom the mother may, in consideration of its merits, consider worthy of her bounty.

Such women shall not presume to alienate property of this description to any stranger, or to a child born of the second marriage, and they shall have only the right of the possession and enjoyment of such

property during their lives, but the authority to alienate it is not granted them. For, if any of such property should be transferred by a woman of this kind to any person whomsoever, it shall be restored out of her own estate, in order that it may come unimpaired and intact into the hands of those children who We have decided are entitled to it.

(1) We also add to this law, that if any of the children who are proved to have been born of the former marriage should die after the mother has disgraced herself by a second one, all the surviving offspring of the same marriage shall have a right to whatever the mother would be considered entitled to ab intestato, or under the will of her child by the same succession; and she shall only have possession of the share due to her for the term of her life, and must leave everything to the surviving children of the former marriage; nor shall she have power to bequeath property of this kind to any stranger whomsoever, or to alienate any of the same.

If she should not have had issue by her first marriage, or her child or children should die, she is hereby fully authorized to dispose of everything which she has acquired in any way, and shall be legally entitled to complete ownership of the same, and can leave it by will to anyone whom she may select.

Given at Constantinople, on the sixth of the Kalends of June, during the Consulate of Antoninus and Syagrius, 382.

Extract from Novel 22, Chapter XXIII. Latin Text.

A woman shall not be entitled to the ownership of property included in a donation made on account of marriage, even if another person gave it for the benefit of her husband.

Extract from Novel 22, Chapter XXV. Latin Text. This profit is equally divided among the children by law and its distribution is not left to the discretion of the parent.

Extract from Novel 22, Chapter XLVI; and Novel 2, Chapter III. Latin Text.

• A woman who has hastened to contract a second marriage succeeds to her children under the terms of their wills, just as any other person who was appointed heir. She also is called to an intestate succession, whether she married the second time before the death of her child, or afterwards. In case of an intestate succession, however, she will only receive the usufruct of such property as came into the hands of the child from his father's estate. The same rule applies to antenuptial donations, as to other property, but the ingratitude of the mother and the brothers should, in this instance also, by all means be taken into consideration.

Extract from Novel 2, Chapter II; and Novel 22, Chapter XXVI. Latin Text.

If, however, any one of them should die first without issue, the ownership of a part of the property left will go to the mother, in

accordance with the agreement made in case there should be no children, and the remainder will pass to the heirs of the deceased, whoever they may be; therefore, if she should dispose of any of said property, the sale will be valid so far as the portion above mentioned is concerned. But when the mother is the only heir, she herself will be entitled to the entire estate, and she can follow any alienation of it that she pleases.

4. The Emperors Honorius and Theodosius to Marinus, Prsetorian Prefect.

While We have previously ordered by other laws that the estate of the mother shall descend intact to the children, still, where she has acquired any property through the generosity of her husband, the children born of the first marriage are informed that they have a right to make a special claim to it, as constituting part of their father's estate. Therefore, if a woman who had children should contract a second marriage, only the issue of said second marriage shall have a right to the possession of all the property which the second husband gave to his wife at the time of their betrothal; and it will be of no advantage to those by the former marriage that the woman did not marry a third time.

If, however, the second husband should die without leaving any children, whatever his wife obtained from him as a betrothal gift shall belong to her by law, even if the donor is shown to have left children by a former marriage. So far as the estate of the mother is concerned, any offspring which she may leave, no matter from what husband the property was obtained, or whether it was derived from this or from some other source, shall have the share to which they are entitled from their mother's estate, whether it became theirs by gift, or under the terms of a will. For We decree that it is expressly provided by this law, that children, no matter of what marriage they are born, shall be entitled to any property donated by their father at the time of his betrothal.

Given at Ravenna, on the third of the Nones of November, during the Consulate of Honorius, Consul for the thirteenth time, and Theodosius, Consul for the tenth time, 422.

5. The Emperors Theodosius and Valentinian to Florentius, Prsetorian Prefect.

Generally speaking, We decree that, in every instance where, before the promulgation of this law, the constitutions direct that a woman shall preserve for the benefit of their common children all the property which came into her hands from the estate of her husband where the marraige was dissolved by death this shall be done; and also, under the same circumstances, that the husband shall preserve for the common children everything which came into his hands from the estate of his wife, where the marriage was terminated by the death of the latter. It makes no difference whether someone else made an ante-nuptial donation for the benefit of the husband, or gave a dowry for the benefit of the wife.

We order that this rule shall be observed, even though the property included in the ante-nuptial donation (as is usually the case), was given by the wife by way of dowry. We decree, moreover, that the ownership of the property preserved for the children by the provisions of this law, or by those of former constitutions, shall belong to them. Therefore, where the person who was keeping the said property for the children dies, all surviving children shall have a right to recover it from any possessor whomsoever, and if it has been consumed, can exact its value from the heirs of him who had the right to preserve it. The right to alienate or encumber property which should be preserved, or which has been ordered to be kept for their benefit, is not permitted. We, however, grant to the father the right to administer the business of his children in a proper manner; nor do We deny to the parents permission to divide their property between their children according to their own judgment, or even to select any one of them whom they may prefer.

(1) Still, in those instances in which the mother is directed to preserve the property for the common children, because it belonged to their father, that is to say, where the marriage has been dissolved by the death of the husband, and the woman marries a second time; or where We order that the father shall preserve the property of the mother for the benefit of their common offspring, when the marriage has been dissolved by the death of the wife, and the husband marries again; if the children should not enter upon the estate of their father, who died first, they shall only be permitted to claim for themselves the property of the parent who died last; that is, if they should decide to accept the estate of the one who died last, in order that what was established for the benefit of the said children may not, in certain cases, appear to have been devised for their injury.

Extract from Novel 23, Chapter XXIII, XVI. Latin Text.

Any profit obtained during marriage belongs to the children, although they may not be heirs of their father or mother, or of both of them; unless they have been ungrateful, and their ingratitude is

proved.

END OF THE EXTRACT.

THE TEXT OP THE CODE FOLLOWS.

(2) We have thought that, for the sake of humanity, the following should be inserted in this law, that is to say, in every instance in which profit is obtained, where property comes into the hands of the wife from the husband, or the husband obtains anything from the estate of his wife when the first marriage is dissolved by the death of one of the parties, and the survivor does not marry again; and if the husband of the wife, that is to say, the survivor, does not consume or alienate the property (which there is no doubt belongs to them as owners when they do not contract a second marriage), the children are entitled to the property which formed part of their father's estate, as well as to that derived from the estate of their mother.

Extract from Novel 98, Chapter I. Latin Text.

When the wife dies, the profits that the husband obtained from the dowry, the usufruct of which is granted to him, are absolutely reserved for the common children, so far as their ownership is concerned.

The same rule applies to the share of the woman, if she has profited to any extent by the betrothal gift. Likewise, where the marriage is dissolved in any other manner, these profits are disposed of by the same constitution.

Extract from Novel 127, Chapter III. Latin Text.

If, however, the mother should not marry a second time, she herself will be entitled to a share of the property, in proportion to the number of her children. This rule also applies to the father and all relatives in the ascending line, who do not contract a second marriage.

6. The Emperors Leo and Anthemius to Erythrius, Prsetorian Prefect.

We order by this published law, which shall be valid for all time, that where there are any children by a former marriage, and either the father or the mother contracts matrimonial vows a second or a third time, or more, it shall not be permitted to leave to the stepmother or stepfather, either by a will written or unwritten, or by a codicil, or by the right of inheritance, or by virtue of a legacy or a trust, or by way of dowry or ante-nuptial donations, or by a donation mortis causa or one inter vivos (although these last donations are forbidden by the Civil Law to be made during marriage, still they are, for certain reasons, usually confirmed, after the death of the donor), more than they could have left or given to a son or daughter, if either one of them were living. Where, however, there are several children, they will all be entitled to equal shares, and no more can be acquired by any one of them than is permitted to be given to their stepfather or their stepmother. When, however, the above-mentioned property was not transmitted in equal shares to the said children, then it shall not be lawful to leave to the stepmother or stepfather by will, or to donate by way of dowry or as an ante-nuptial donation, any more than a son or a daughter would be entitled to, to whom a smaller share of the estate was left or given by the last will of the testator; provided, that the fourth part due to the said children under the law cannot, in any way, be diminished, unless for those reasons which prevent the complaint of inofficiousness.

We decree that this rule shall also apply to the grandfather or the grandmother, the great-grandfather, and the great-grandmother, as well as to the grandchildren and great-grandchildren of both sexes; in either the paternal or maternal line of descent whether they are under paternal control, or have been emancipated or not.

If, however, any property in excess of what has been prescribed by law should be left to the stepmother or the stepfather, or donated or presented to either of them, the surplus shall be considered as not having been referred to, left, donated, or given; and We order that it shall belong to the children, and be divided among them; for the

purpose of avoiding every evasion of the law which may be attempted, either by the interposition of a third person, or in any other manner whatsoever.

(1) We add to these provisions that a woman, in those instances in which ante-nuptial donations or other property has come to her from her husband, shall be compelled to preserve the same for their common children, as constituting part of their father's estate, in accordance with the terms of former laws; that is to say, when, after the marriage has been dissolved by the death of the husband, she contracts another, she can only enjoy the usufruct of the movable property and the slaves, as well as the civil allowance of support, during her lifetime; all alienation of the same being absolutely prohibited. With reference to the movable property, however, she shall, in like manner, be entitled to its usufruct, after a just appraisement has been made by arbiters chosen with the consent of all parties, and after an oath has been administered ; provided she furnishes good security that she will restore the said property or the value of the same to the sons or daughters who are the issue of this marriage; or, after their death, to all her grandsons and granddaughters descended from the said children, or to any one of them who may happen to survive; and that she will do this in accordance with the laws. But if she should fail, or be unwilling to furnish proper security, the aforesaid property shall remain in the hands of the children, if it has not yet been transferred by them to their mother; and where it has been delivered to her, or is retained by her, it shall be returned to the children. If proper security is offered by them to their mother, by which it is agreed to pay her annually three per cent on the estimated value of said property, instead of the usufruct or the sum at which it was appraised; the children must not fail at any time to make said payments.

It should also be provided by the bond that (if all the said children or their descendants should happen to die before their mother) the above-mentioned movable property shall be restored to her in accordance with the distribution prescribed by law in order that she may have the benefit of the profit derived from misfortune. Hence, if anyone of those who has furnished security should consider it advantageous for himself, he shall be permitted to use and enjoy the said movable property, and either to lend, encumber, or sell the same; in order that the children may, by means of what is acquired by them, be enabled to provide for their mother, without suffering any inconvenience themselves. But if either of them should neglect, or be unable to furnish the security aforesaid, the property shall remain in the hands of the woman during her lifetime.

Extract from Novel 22, Chapters IV and XLV. Latin Text.

If a quantity of gold was mentioned in the donation made in consideration of marriage, the contract must state that the interest on the same shall be paid, but the gold itself cannot be exacted, unless it, as well as the other property mentioned in the donation, was included in the estate of the husband.

END OF THE EXTRACT.

THE TEXT OF THE CODE FOLLOWS.

(2) All the property which the woman received from her husband, as well as what she herself has, or will be entitled to, is encumbered to the children who were the issue of her first marriage, just as if it had been pledged or hypothecated to guarantee the ante-nuptial donation or any other property which may have come into her hands as part of the estate of her husband, from the very day when she obtained possession of the same; so that if anyone should make a contract with the woman after the said property was delivered to, or retained by her, and she marries a second time, there is no doubt that, when it is claimed, the children born of the first marriage, and any grandsons or granddaughters descended from them, will be preferred to those born of the second marriage.

(3) When, however, retaining parental affection for their children, either the father or the mother is unwilling to contract a second marriage, the husband shall not be prohibited from using according to his wishes, or selling, or alienating in any way whatsoever, or pledging or hypothecating (if he or she should wish to do so) as owner of the same, any property which belonged to the estate of his wife, or the latter what belonged to that of her husband, and which may have come into the possession of either.

The children shall be permitted to recover any of said property, if it has not been alienated, consumed, or pledged; even though they may not have accepted the estates of their parents.

Given on the second of the Kalends of March, during the Consulate of Martian and Zeno, 469.

7. The Emperor Zeno to Sebastian, Prsetorian Prefect.

In some cases, the father, in others, the mother, is required to preserve an ante-nuptial donation, or property which is derived from some other source for the children of both sexes. If one of the sons or daughters should happen to predecease the father or the mother (either before one of them has contracted a second marriage, or afterwards) and leaves a son or a daughter, a grandson or a granddaughter, or several of them, during the lifetime of his or her father or mother, We decree that the share to which the deceased son or daughter was entitled, or any profit derived therefrom, shall not pass to the brothers or sisters of the deceased, but to their sons and daughters, or grandchildren of both sexes; or to their great-grandchildren; or to their grandparents or great-grandparents, if they are living; and that they shall not be prevented from selecting such of their surviving children as they may desire to favor.

Given on the Kalends of March, during the fifth Consulate of Ellus, 478.

8. The Emperor Justinian to Menna, Prxtorian Prefect.

If any of the children by a former marriage should die before the father or the mother marries again, leaving either children, grandchildren, or great-grandchildren, We decree that the share of the deceased

shall not go to his brothers or sisters, or, if he should have none, to his father or mother, but to his own children, grandchildren, and great-grandchildren, and, whether there be one or more, they can only claim the share of the estate to which the defunct was entitled.

(1) We have determined to prescribe by a positive law that, where anyone having children by a first marriage does not marry a second time, either of his parents shall, in the same manner, be permitted to alienate or administer property obtained by the former marriage in any way that he or she may desire. If, however, none of this property has been alienated, the children shall have a right to claim it, even if they do not accept the estate of their father or mother.,

(2) We order that any alienation of property of this kind, which has been made by the will of either the father or mother, or which has been either generally or specially bequeathed at the time of the appointment of the heir, shall be considered valid.

Extract from Novel 22, Chapter XX. Latin Text.

Now, however, profits of this kind are presumed to have been reserved for the benefit of the children, unless they have been expressly transferred to others.

END OP THE EXTRACT.

THE TEXT OP THE CODE FOLLOWS.

(3) Permission is granted to children to claim any profits derived from the marriage, even if they do not enter upon the estate of their father or mother, where neither of their said parents contracted a second marriage, and did not alienate the property acquired by them; but We by no means permit them to demand for themselves any such property, if they have acquired any part of their father's or mother's estates, when the deceased parent has any other children by a former marriage.

(4) In order to confirm the ancient law We order, as in the case of a mother whose property, after a second marriage, is held to be hypothecated to the children by the first one, for the purpose of preserving the profits to which they are entitled, that also the property of the father, which he either has, or may hereafter acquire, and which, after a second marriage, must be preserved by him for the benefit of children by a former one, if he obtained it from their mother, shall also be considered as hypothecated.

We decree that the property of the said father, who has one or more children of this kind under his control, shall be encumbered to that of the mother for the benefit of the said children, and that its preservation shall be compulsory if it comes to them from the maternal line of descent; nevertheless, the children must not scrutinize the administration of their father or their mother too closely, under the pretext of such an hypothecation; nor should they seek to raise any question on this point, as it is a clear rule of law that if any property not included in that above mentioned, or which forms part of their

mother's estate, should be alienated, the right of hypothecation will remain unimpaired, so far as the said children are concerned.

Given on the third of the Ides of December, during the Consulate of Our Lord Justinian, Consul for the second time, 528.

9. The Same to Menna, Praetorian Prefect.

As laws previously enacted have settled that everything which a wife or a husband, having children by a former marriage, has given or bequeathed after a second one, either by way of donation or in any other manner, to a larger amount than should be donated or left to a single son or daughter, the issue of a former marriage, should be revoked for the benefit of the sons and daughters alone who are the children by the said former marriage; and, as in this Section, no reference was made to children who are the issue of the second marriage, We, for the purpose of correcting this omission, do hereby decree that everything which is revoked, as aforesaid, shall not only go to the children of the first marriage, but also to those who are the issue of the second, and shall be equally distributed among all of them.

(1) In addition to this, We direct that any profits obtained by either the wife or the husband through a dowry or an ante-nuptial donation, shall be subject to the same rule, in case of repudiation, and after the second marriage of either of the parties, shall be preserved indiscriminately for the benefit of the children who are the issue of the former marriage, just as in the case of divorce or death; nor can any attempt be made to call the divorce in question, or to institute any other inquiry concerning the matter.

Given at Constantinople, on the Ides of April, during the Consulate of Decius, Consul for the fifth time, 486.

Extract from Novel 22, Chapters I, XIX, XXVII. Latin Text.

Children by a first marriage are now alone entitled to this benefit, and if any one of them should die, leaving issue, his share shall pass to them.

10. The Same to Demosthenes, Prsetorian Prefect.

It has been clearly provided by law that ungrateful children should with reason be excluded from the inheritances of their ancestors, where the latter have mentioned this in their wills, and it has actually been shown that the Divine Constitution of the Emperor Leo, of illustrious memory, which was promulgated with reference to children who were the issue of a former marriage, seems to contradict a provision of this kind. For, as either the father or mother, who contracted a second marriage, is required, for any reason whatsoever, to give to the second husband, or stepmother, only as much as he or she could leave to that son or daughter, the issue of the former marriage, who was entitled to the smallest share of the estate, the greatest injustice to parents was caused by this law; for, in every instance, children, being aware that their parents could, even against their will, be prevented from leaving them only as much as the second

husband or the stepmother was entitled to receive, injured their parents by all kinds of dissipation and excesses. Therefore, We decree that any children who are actually ungrateful shall not hereafter have any right to enjoy the benefit conferred upon them by the Divine Constitution of the August Leo, but shall be excluded as unworthy from every privilege of this description.

We also decree that this provision shall be observed with reference to grandfathers and grandmothers, great-grandfathers and great-grandmothers, grandsons and granddaughters, as well as great-grandsons and great-granddaughters, whether they are under paternal control, or have been emancipated, and whether they are in the paternal or maternal line of descent.

But as We provide for the protection of the parents, so also, We do not suffer their innocent posterity to be subjected to injury, nor permit their parents, who have contracted a second marriage, and perhaps may entertain an unreasonable hatred of their children, to stigmatize them as ungrateful, without good reason. Hence We desire that children shall be excluded from this privilege who, through the efforts of the heirs of their parents, have been convicted by clear and undoubted evidence of being ungrateful toward the latter, in those instances which have been enumerated in former laws.

Given at Chalcedon, on the fifteenth of the Kalends of October, during the Consulate of Decius, Consul for the fifth time, 486.

TITLE X.

WHERE A WOMAN, TO WHOM HER HUSBAND LEFT AN USUFRUCT, MARRIES A SECOND TIME.

1. The Emperors Valentinian, Theodosius, and Arcadius to Tatian, Prsetorian Prefect.

When a husband, at his death, leaves his wife the usufruct of his property, and she contracts a second marriage, she shall lose the usufruct which she obtained from her first husband, and must surrender it to her children by him, from the day on which she married a second time. If, however, the children by the first marriage should still be in the weakness of infancy, and she does not give them the assistance of a guardian, but seizes an opportunity of this kind to appropriate the property which was left to them, all of it can be recovered by law, and she must surrender it with its profits, after having deducted the necessary expenses.

This applies to the usufruct which a man, when making his last will, bequeathed out of his own property for the benefit of his wife. We, however, decree that where the usufruct of ante-nuptial donations is concerned, the rules established by previous constitutions shall be

observed.

Given on the Ides of March, during the Consulate of Arcadius, Consul for the second time, and Rufinus, 392.

Extract from Novel 22, Chapter XXXII. Latin Text.

This law applies where the usufruct is given or left under the condition that it shall be extinguished in case of a second marriage; otherwise, it will remain in full force, provided it has been left or donated under circumstances which render it legal. An usufruct given as a dowry or an ante-nuptial donation, which is authorized by law, cannot be revoked by a testator.

TITLE XI.

CONCERNING THE PROMISE OP A DOWRY, AND ONE MADE WITHOUT CONSIDERATION.

1. The Emperor Alexander to Claudius.

You are wrong in your opinion that you are entitled to an action to recover a dowry which has been promised, but not delivered to you, as no specific property or sum was agreed upon, and it was only stated in the nuptial contract that the woman who was married promised to give a dowry.

2. The Emperor Gordian to Herodotus, Prsetorian Prefect.

If your father-in-law contracted to pay interest on the dowry which he promised you, a competent judge will order you to be given what you prove is due to you.

Given on the twelfth of the Kalends of September, during the Consulate of Pius and Pontianus, 239.

3. The Same to Claudius.

If the person whom you mentioned promised legally to give you a dowry for the woman who marries you, without mentioning the amount, but stating that it would be whatever he himself might decide upon, and he does not comply with the terms of the stipulation, you, having availed yourself of the proper action, can obtain by a judgment what was promised you, for it is considered that a sum which would be approved by a good citizen was included in the stipulation.

Given on the Kalends of January, during the Consulate of Sabinus and Venustus, 241.

4. The Emperors Diocletian and Maximian, and the Cassars, to Rufus.

If you stated in the dotal contract with the consent of the person who gave the dowry that more was given than you received, you are informed that you can, in accordance with the agreement, recover whatever is lacking.

Given on the Nones of April, during the above-mentioned Consulate.

5. The Same Emperors and Cassars to Desumiana.

If your father promised a dowry to your husband who entered into the stipulation, an action to recover it will not lie in your favor, but in favor of your husband, against the heirs of his father-in-law.

6. The Emperors Theodosius and Valentinian to Hierius, Prsetorian Prefect.

We decree that any words whatsoever will be sufficient for the exaction of a dowry after it has once been agreed to be given, whether they have been reduced to writing or not; and even if the stipulation did not follow the promise of the dotal property.

Given on the Kalends of March, during the Consulate of Felix and Taurus, 428.

7. The Emperor Justinian to John, Prsetorian Prefect.

If a father should simply give a dowry to his daughter, or should make an ante-nuptial donation for his son, the latter, whether he is under the control of his father or has been emancipated, will be entitled to the estate of his mother, or any property obtained in some other way, of which he cannot now obtain the acquisition, and the usufruct of which solely remains with his father, or of actions of any description which he has the right to bring against his father.

A -doubt arose among the ancient authorities whether the father released himself from liability from this obligation, when he promised or gave the dowry or the ante-nuptial donation, or whether the obligation would continue to retain its character and paternal liberality suggest the payment of the said dowry or ante-nuptial donation. In a doubtful matter of this kind, a division of opinion existed between the greater number of jurists, and the difficulty was increased by the addition of the question (in case the father had stated in the dotal contract that the dowry or ante-nuptial donation was bestowed out of the property of both father and mother) whether the gift or promise should be considered to have been made in proportion to half of his entire estate, or pro rata, in accordance with the value of the estate

of each.

Therefore, for the purpose of positively putting an end to both of these ambiguous points, We decree that if the father had thought that nothing further should be added, but simply gave the dowry or the ante-nuptial donation, or made a promise to do so, he must be understood to have done this induced by his own generosity, and that what was due should retain its proper character; for these laws are well known by which it has been provided that it is, by all means, the duty of the father to give a dowry or an ante-nuptial donation for the benefit of his offspring. Hence, an act of liberality of this kind shall remain valid and irrevocable, and it, with the obligation, will enure

to their benefit.

Where, however, a father declares that he grants liberalities of this kind out of his own property, or out of that of the mother, or of other persons which cannot be acquired, or out of what he himself owes, then, if he is in absolute want, the dowry or the ante-nuptial donation must be considered to have been given out of the property belonging to his sons or his daughters. But if he himself possesses considerable property, in this instance he will be understood to have bestowed the dowry or the ante-nuptial donation out of his own estate;

for he would have been able to have given a dowry for his daughter or an ante-nuptial donation for his son, in proportion to his means, and to have consented that his children, if they desired to do so, might add a part, or even all of that to which they were entitled through the generosity of their father in giving the dowry or the ante-nuptial donation; so that it will actually be apparent not only what he himself intended to give, but also what was derived from the property of his children, and he would not be compelled to rely upon vain statements, and thereby incur serious risk.

Given on the Kalends of November, during the Consulate of Lam-padius and Orestes, 530.

TITLE XII. CONCERNING THE LAW OF DOWRIES.

1. The Emperors Severus and Antoninus to Nicephorus.

If property given as dowry is evicted, and an agreement or a promise has been interposed, the son-in-law can bring a personal action, or one based on the stipulation, against his father-in-law, his wife, or their heirs. When, however, no agreement or promise was made, an action on purchase will lie after the eviction, if an appraisement of the property was made. But where this was not done, and the property was given in good faith by way of dowry, no action will lie in favor of the husband. If, however, fraud for which the donor was responsible existed, an action on the ground of fraud can be brought against you, provided no fraud was committed by the woman; for then he will be entitled to an action in factum to avoid one involving infamy being granted against her.

Given on the Kalends of August, during the Consulate of Mutian and Favian, 202.

2. The Emperor Antoninus to Alluvias.

Where a stipulation was made with reference to the return of a part of the dowry given, and the condition upon which this depended is fulfilled, he in whose favor the agreement was planned and entered into will be entitled to an action. In accordance with this, if your sister Polla is entitled to an action for the recovery of half of the dowry because your mother, with the intention of making a donation, permitted her daughter to stipulate for the return of half of the dowry after her death, she need not apprehend an exception on the ground of fraud, for the reason that she is the heir to less than half of the estate of her mother, who made the agreement; unless it should be clearly proved that the latter changed her mind with reference to the agreement for the dowry, and desired that her daughter should be content with the preferred legacy instead of her hereditary share of the estate, and intended that her husband should be released from the necessity of making restitution.

Given on the third of the Kalends of August, during the Consulate of Antoninus, Consul for the fourth time, and Balbinus, 214.

3. The Emperor Alexander to Euphemius.

Although the father has a right to demand restoration of the dowry when his daughter dies during marriage, still, where the husband has by will legally conferred freedom, both directly and under a trust, upon the dotal slaves, his father cannot revoke it after it has once been granted, as the husband has free power during marriage to manumit dotal slaves inter vivos.

Given on the sixth of the Ides of December, during the Consulate of Antoninus and Alexander, 223.

4. The Same to Valens.

It is not prohibited by any laws for a woman to give all the property to her husband by way of dowry.

Given on the fourth of the Ides of July, during the Consulate of Maximus, Consul for the second time, and JElianus, 224.

5. The Same to Statia.

Whenever the property given as dowry is appraised, the husband obtains the ownership of the same, but he becomes, as it were, the debtor for its value. Therefore, if no agreement is made that the property shall be restored in case the marriage is dissolved, and it has been legally appraised, he can retain it if he tenders you the

money.

Given on the third of the Ides of April, during the Consulate of Alexander, Consul for the second time, and Marcellus, 227.

6. The Emperor Maximian to Sulpitius.

If you have become the heir of your grandmother, she can transmit to you the right of action based on the agreement for the recovery of the property which she gave as dowry for your daughter, even though a verbal obligation may not have been assumed. For the rule is not the same where the father or mother makes a contract of this kind, as that of the mother gives a right to the Actio prsescriptis verbis, and that that of the father is, by no means, considered to change by a simple agreement the right .of action founded on the profectitial dowry.

Given on the third of the Ides of February, during the Consulate of Maximian and Africanus, 237.

7. The Emperor Gordian to Marcus.

Where a dowry is given by your father-in-law to you for the benefit of your wife, and a stipulation is not added to it at the time when it is given, or afterwards, your father-in-law, in making an agreement with you against the consent of his daughter, cannot injure his own legal position; for when she alone institutes proceedings with reference to the dowry, it is forbidden by law for the agreement to operate to his disadvantage.

Given on the Kalends of October, during the Consulate of Pius and Pontianus, 239.

8. The Same to Agrippina.

Even if the mother does not actually stipulate that the dowry shall be returned to her, but that what she gave by way of dowry shall follow her, or belong to her, in case her daughter should die during marriage, and the daughter does die, We decree that it is perfectly just that the mother shall be held to have acquired a right of action under the stipulation. The result of this is that even property given as an addition to the dowry can be recovered by the same action.

Given on the Kalends of February, during the Consulate of Sabinus and Venustus, 241.

9. The Emperor Decius, and the Csesar, to Urbicana.

Your claim for your dowry is preferable to that of the State to which your husband subsequently became indebted.

Given on the sixth of the Ides of June, during the Consulate of Decius and Gratus, 251.

10. The Emperors Diocletian and Maximian to Ingenuus.

As you allege that the dowry which you received was appraised, it is apparent, according to the Common Law, that under the agreement inserted in the dotal contract, an action on purchase will lie, for who can doubt that the value of the dowry is due from you to your wife; and that the property of which it is composed will become deteriorated at your risk; or that its increase will enure to your benefit?

Given on the twelfth of the Kalends of May, during the Consulate of Maximus, Consul for the second time, and Acquilinus, 286.

11. The Same Emperors and Csesars to Severa.

There is no doubt that your husband will have a right of action with reference to the property which you allege was given by way of dowry and subsequently removed.

Given at Heraclea, on the tenth of the Kalends of May, during the above-mentioned Consulate.

12. The Same Emperors and Csesars to Rufina.

The land purchased by your husband with money forming part of the dowry is not acquired by you, for a husband cannot acquire for his wife a right of action on purchase, and only an action on dowry will lie in your favor. Therefore, if the Governor of the province, after having been applied to, should find that you have not made a compromise, but have obtained the larger part of the dowry, he will provide for the return of the remainder.

Given at Heraclea, on the eighth of the Kalends of May, during the above-mentioned Consulate.

13. The Same Emperors and Csesars to Catula and Statia. If any property belonging to you has been given by your mother to your stepfather by way of dowry, and he is aware that it is yours,

you are informed that such a gift has no validity in law, when no promise or stipulation was made.

Given at Heraclea, on the day before the Kalends of May, under the above-mentioned Consulate.

14. The Same Emperors and Csesars to Basilissa.

A mother cannot be compelled to give a dowry for her daughter, unless some good and sufficient cause exists for doing so, or she is expressly required to do so by law, nor has a father any power to bestow a dowry out of the property of his wife against her consent.

Given at Philippopolis, on the Nones of November, during the above-mentioned Consulate.

15. The Same Emperors and Csesars to Ulpian.

Where it is proved by other evidence that a dowry was given without the execution of dotal instruments, it is established that, after a divorce has taken place, the dowry of your former wife should be restored to her in accordance with good faith, for if the documents are lost, any other legal proofs which may be introduced will undoubtedly not be considered void.

Given on the eighth of the Kalends of August, during the abovementioned Consulate.

16. The Same Emperors and Csesars to Mmilius.

Your sister having succeeded to your father, who died intestate, is not prohibited from giving, as her dowry, her undivided share of a tract of land, before a division of the estate has been made.

Given on the Nones of July, during the Consulate of the Csesars.

17. The Same Emperors and Csesars to Sabinus.

Your mother-in-law, by selling the usufruct which he had reserved for herself out of the property that she gave you by way of dowry, can not deprive you of the same.

Given on the Nones of July, during the Consulate of the Csesars.

18. The Same to Menestratus. _ If your mother-in-law conveyed a tract of land to your wife with the reservation of the usufruct, and your wife gave the said property to you by way of dowry, and then your mother-in-law transferred to you the usufruct of the same, and if your wife should die during marriage, there is no doubt that the land will remain in your hands in accordance with the terms of the agreement entered into between you. If, however, your mother-in-law gave her daughter the usufruct in consideration of receiving a certain sum of money annually, and the latter should die, the usufruct will by no means be extinguished.

Given on the fourteenth of the Kalends of January, during the Consulate of the Csesars.

19. The Same Emperors and Csesars to Achilles. As you state that your father-in-law, when giving you a dowry for his daughter, made an agreement to the effect that if, after his own

death, his daughter should die during marriage, half of the said dowry should be given to Amnia; and, after having made his will, and appointed Amnia his heir, along with others, he directed that Amnia should not claim or agree to anything under the stipulation, no action based on a contract made with another will lie in her favor, unless it is proved that Amnia stipulated under the terms of the agreement that the property should be returned to her.

If, however, by the interpretation of the contract, Amnia should have acquired an obligation for herself, and, after the fulfillment of the condition, she demands that the stipulation be carried out, and it is shown that the testator had your interests in view, you can avail yourself of an exception against her, on the ground that, after the deduction of the Falcidian portion, she has received all that was agreed upon, according to the intention of the deceased.

Given on the thirteenth of the Kalends of February, during the Consulate of the Caesars.

20. The Same Emperors and Cassars to Tiberia.

It is a perfectly clear rule of law that the husband, on account of the burdens imposed by marriage, is entitled to the enjoyment of the income of the entire dowry which he has obtained; and that if he should permit his wife to have it, as a donation, he can bring suit for the amount to which she has been pecuniarily benefited for this reason.

Given on the fifth of the Kalends of May, during the Consulate of the Caesars.

21. The Same Emperors and Csesars to Geminius.

If an agreement has been made between husband and wife that, if their marriage should be dissolved in any way within the term of five years, the property constituting the dowry, which was appraised, shall be returned in the same condition and at the same value as the amount of the appraisement, it is clear that the value of the property should not be paid, but that the very thing itself must be returned; as, in agreements for its restoration, the value was only mentioned to prevent the property from being diminished or destroyed, and it should not be demanded at any other valuation than that at which it was estimated.

Given at Agrippina on the Nones of August, during the Consulate of the Csesars.

22. The Same Emperors and Csesars to Libyana.

A son-in-law cannot alienate property given by his father-in-law as dowry for his daughter.

Given on the fifth of the Kalends of December, during the Consulate of the same Cassars.

23. The Same Emperors and Csesars to Diogenes. If your wife should sell land forming part of her dowry, it makes no difference whether she did so voluntarily or ratified the contract

after it was made; for she cannot deprive you of the ownership of the same against your consent.

Given on the fifth of the Kalends of October, during the Consulate

of the Caesars.

24. The Same Emperors and Csesars to Aurelius and Lysimachus.

If you gave a dowry to the husband of your freedwoman, and did not provide by an agreement or stipulation that it should be immediately returned to you, in case the marriage was dissolved, it is established that if it should be dissolved through the fault of the wife, the dowry will remain in the hands of the husband, even if you can show that she has been guilty of ingratitude towards you.

Given at Antioch, on the sixth of the Kalends of November, during the Consulate of the Csesars.

25. The Same Emperors and Csesars to Eutychianus.

Where a woman stipulates that the dowry shall be given her by her husband in order that she may leave it by will, as, in this instance, the thought of death precedes the time of the execution of the will, it does not contain a condition but a consideration, and hence, if the woman should die intestate, it is proper for the stipulation to take

effect.

Given at Antioch, on the third of the Ides of November, during

the Consulate of the Csesars.

26. The Same Emperors and Cassars to Demosthenes.

If your father at the time he gave a dowry to his son-in-law stipulated for his daughter that it should be transferred to you, who were emancipated, he will acquire a right of action for you, if he does not change his mind, and the law does not forbid you to receive the

dowry.

Given on the sixth of the Kalends of January, during the Consulate of the same Csesars.

27. The Same Emperors and Csesars to Pompeianus.

Although the dowry may lawfully remain in the hands of the husband, the heirs of the estate of the wife, and not the former husband, are liable for public contributions due from the estate.

Given on the sixth of the Kalends of January, during the Consulate of the Csesars.

28. The Emperor Zeno to Mlianus, Prsstorian Prefect.

A woman, who is a minor, can legally give to, or demand from her husband a dowry, with the general or special consent of her curator ; although he himself, at the time of the constitution of the dowry, may have furnished a surety for a sum less than the dowry is said

to amount to.

This rule shall also be observed where a minor has made an antenuptial donation with the consent of his curator, as previously stated.

Given on the Kalends of January, during the Consulate of Basilius, Consul for the second time, and Armatius, 476.

29. The Emperor Justinian to Menna, Praetorian Prefect.

Where the husband has been reduced to poverty during the marriage, and his wife desires to provide for herself, and to hold the property encumbered to her as dowry, as well as any given to her by an ante-nuptial donation, in addition to the dowry, We grant her the benefit of an exception for the purpose of disposing of the hypothecation in favor of a second creditor, not only if she holds the property of her husband, and is brought into court on this account, but also if she herself institutes proceedings with reference to the same property which has been hypothecated to her, in accordance with the provision of the law against persons who have in their possession property belonging to a husband, and We decree that the existence of the marriage cannot be pleaded against her, but that she can recover the said property from subsequent creditors, or from other parties who are not recognized by the law as having a better claim to it; and this she can do just as if the marriage had been dissolved, and she was thereby enabled to recover the dowry or ante-nuptial donation; provided, however, that the same woman shall not have the power to alienate the property during the lifetime of her husband, and while the marriage between them is still in existence.

She, however, will be entitled to use the income of said property for the maintenance of herself and her husband, as well as for that of her children, if she has any. The creditors of the husband will undoubtedly retain their rights unimpaired against him and any property which he may subsequently acquire, and the husband and wife themselves, if the marriage should be dissolved, also shall enjoy their rights so far as any dowry or ante-nuptial donation given in accordance with the terms of the dotal agreement is concerned.

Given on the third of the Ides of December, during the Consulate of Our Lord Justinian, Consul for the second time, 528.

Extract from Novel 97, Chapter VI. Latin Text.

In a case of this kind, a donation made in consideration of matrimony can be recovered during the continuance of the marriage.

30. The Same to Demosthenes, Prsetorian Prefect.

With reference to dotal property, whether it is movable or immovable, or capable of moving itself (if it is still in existence) and whether it has been appraised or not, We order that a wife shall have a perfect right to recover it, after the marriage has been dissolved, and that no creditor of the husband, even though he may be first in point of time, shall be able to claim preference for himself through the hypothecation of said property, as it in the first place belonged to the wife, and naturally remains subject to her ownership; for the truth of the matter is not destroyed or confused by the subtlety of the law which presumes that it has become a part of the estate of the husband. Therefore, We desire that she shall be entitled to the action in rem relating to property of this kind, as being her own, and can, in preference to all other persons, bring the hypothecary action, so that whether the property of the wife is considered to be hers in ac-

cordance with natural law, or through legal subtlety is held to have become part of the estate of the husband, her interest shall be fully protected by either of these two actions, that is to say, the one in rem, or the hypothecary action.

Every exception based upon time, such as those of usucaption, the prescription of ten or twenty years, or of thirty or forty years, or any other whatsoever, authorized by the lapse of a longer or shorter period, may be pleaded against women from the time when they begin to institute legal proceedings. These terms will run against those who are married to wealthy husbands from the day when the marriage was dissolved, and against those whose husbands are insolvent they will run from the time when misfortune came upon them,; for while matrimony exists, women can exercise their hypothecary rights against the property of husbands who are poor, as has already been prescribed by the humane provisions of Our law; and all pretense of divorce is absolutely forbidden in cases of this kind to which Our law has

reference.

Read seven times in the New Consistory of the Palace of Justinian.

Given on the third of the Kalends of November, during the fifth Consulate of Decius, 539.

31. The Same to Julian, Prsetorian Prefect.

When persons giving dowries for the benefit of women, whether they are their mothers or other blood-relatives, or strangers, the husbands can receive them without being obliged to have them recorded. When, however, a woman stipulates for the return of a dowry under certain conditions, and the accidental occurrence takes place, she herself is required to assign her rights of action, or transfer the property to the person who gave the dowry, for the gift has been decided to be void, because no record was made of it; and the result is that the unfortunate woman may remain unendowed after many years of marriage have passed, and even after children have been

born.

Therefore We decree that, in all these cases, no record shall be required, but that such donations shall be valid, no matter who the parties are, and that the woman herself shall be entitled to her dowry (when any accidental circumstance has benefited her in this way), and that it shall remain absolutely in her possession, unless he who gave it in the first place stipulated for its return in a case of this kind. For then, as in the beginning, there was no supposition that there would be any children, because he who gave the dowry stipulated that the entire property should be returned to him; hence a discussion of this point would be out of place. In all other instances, however, in which the owner himself did not make such a stipulation, the woman shall, by an action of dowry, have this peculiar consolation for the misfortune which she has undergone.

(1) Likewise, a stranger (that is to say, one to whose authority the beneficiary is not subject) has given an ante-nuptial donation in behalf of another to a woman who is about to be married, and has made the necessary record of the same, whether the donation is in

excess of the lawful amount, or the woman about to be married was not a minor, but independent, not only will the record be sufficient for her to whom the ante-nuptial donation was given, but will also be sufficient for the persons on whose account it was bestowed; so that if any profit should be derived from the dotal agreement, this shall not belong to the donor, but the husband shall benefit by it, and shall hold it intact and irrevocable, unless the donor stipulated for it to be returned to him under such circumstances; in order that, in the abovementioned instance, a defect similar to the previous one may not arise. Where, however, the donation is of trifling value, or the transaction has been effected in such a way that the record is absolutely void, the donation shall then be valid so far as both parties are concerned, and the husband will profit by it, unless the donor stipulated that he himself should have this advantage.

(2) Again, We decree that where anyone has promised lands, or a certain income, or a house, or a public allowance of provisions, by way of dowry, or has contracted to furnish the same, and two years have elapsed since the marriage took place, he shall immediately furnish the income, or the rent, as well as the public allowance of provisions, to the person entitled to the same, even if the principal property has not yet been delivered.

When the entire dowry consists of gold and the said term of two years has expired, he shall be required to pay interest on the same at the rate of three per cent. But where other property, instead of land or gold, is given as dowry, whether it consists of silver, female ornaments, clothing, or any other articles whatsoever, and it has been appraised after the lapse of two years, interest at three per cent can, in like manner, be collected. The appraisement (for the reason that it is necessary to explain this clearly) is understood to mean a valuation of articles of the same kind, or of every species of dotal property, that is to say, when it consists of silver, ornaments, clothing, or other personal effects, and it must not be expected that, after the separate appraisement of each article, a combination of all of them will be made, as this would be unnecessary and pernicious, because of offering temptation for the exercise of too much subtlety.

If, however, the movable property should not be appraised after the lapse of two years, those rules must be observed which the laws have prescribed with reference to everything oT this kind, after issue has been joined in court.

When the property is of a mixed description, consisting partly of gold, and partly of other movable or immovable possessions, everything shall proceed as if a division had already been made, and the husband shall not be refused permission to claim the dowry whenever he desires to do so. Nor shall he who owes it think that if he pays the income, the rents, the interest, or any other accessories, he has a right to defer the delivery of the dowry itself, but the husband can demand it, either before the expiration of two years, or afterwards, and can exact it in accordance with the laws.

Given on the twelfth of the Kalends of April, during the Consulate of Lampadius and Orestes, 530.

TITLE XIII.

CONCERNING THE CONSOLIDATION OF THE ACTION TO RECOVER THE PROPERTY OF THE WIFE AND THAT BASED ON A STIPULATION, AND CONCERNING THE NATURE OF THE PROPERTY GIVEN AS DOWRY.

1. The Emperor Justinian to the People of the City of Constantinople, and to Those of all the Provinces.

We now come to a matter of no small importance at the present time, and which is to be found in almost all the body of the law, namely, the action with reference to the property of the wife, and that based on a stipulation. Now, after disposing of the resemblances and differences of the two, We intend to unite in a single proceeding every right of action pertaining to the property of the wife with the one resulting from the stipulation, which We think to be worthy of attention. Therefore, having abolished the Actio rei uxoriss, We decree that all dowries shall be recovered by means of the action based on a stipulation, whether the latter was reduced to writing or not, in order that, by the transaction itself, it may be understood that the stipulation was entered into. In the same manner, if the stipulation was improperly made, it must rather be remedied than annulled. For if one stipulation contained in the document is found to be valid, it shall be considered to confer validity upon others which are void; and why should not legal force be conferred by Our Decree upon stipulations of this description? For if it is proper for Us, who promulgate the decree, to suppose that a stipulation was made where one does not exist, there is much more reason for one to be rendered valid which is void.

(1) And, in order that complete relief may be afforded to dowries, as in the case of the administration of the property of wards, and many other legal matters, We have admitted the existence of tacit hypothecation; so also, in a proceeding of this kind We assume hypothecation to have taken place on both sides, on the part of the husband for the restitution of the dowry, arid on the part of the wife for furnishing it, or against the eviction of the property of which it is composed; whether the principal parties interested have given, promised or received the dowry themselves, or others have done so for them; and whether the dowry is adventitious or profectitious, in accordance with the provisions of the ancient law.

In this law, the rusticity and ignorance of men cannot operate to their prejudice, since in this instance We have made provision for their inexperience and want of knowledge. For as stipulations and hypothecations are understood to form part of dotal transactions, and stipulations which are invalid may be corrected, so, hereafter every dotal contract shall be held to be valid and perfect, just as if all the documents relating thereto had been drawn up by men thoroughly learned in the law. And let no one think that, in the case of dowries, We only have reference to such as are included in written instruments, for. as there is nothing to prevent a dowry being given,

promised, or received without the agreement having been reduced to writing, in like manner, a stipulation, or an hypothecation made by either party, must be understood to exist, just as if it had been written. These matters are understood to indicate the character of the proceeding based on the stipulation, the Actio rei uxorise being from this time abolished.

(2) But although We are aware that the action based on a stipulation is one of strict law, and was not a bona fide one; still, for the reason that the stipulation acquires a new character for itself from the dowry, the Actio rei uxorise shall be applied to it, as well as those derived from good faith.

All the effects which the dowry obtains from the stipulation it shall continue to exercise in accordance with its nature; for when, indeed, We found anything better in the Actio rei uxoriss, We especially added it to the present one, so that the action on stipulation which We have established may be new, and not only adorned with its own excellence, but also with that of the ancient proceeding.

(3) In the first place, the nature of the action on stipulation will be explained, and if anything remains to be added from the Actio rei uxorise it shall be done. Hence, it should be known that the Edict of the Praetor, which was introduced with reference to these actions, is annulled, so far as the one on stipulation is concerned; so that the wife can receive what was left to her by her husband, and can obtain her dowry, unless her husband has specially left her property in lieu of it, since it is perfectly evident that a testator who did not make this provision intended that she should have both.

(4) The right of action based on the stipulation shall pass intact, and without delay of transmission, to the heirs.

(5) Nothing shall be stated with regard to the retention of the dowry. For why should it be necessary to retain it on account of the morals of the woman, when she is granted other relief by the Imperial Constitutions? Or for what reason should retention be made of the dowry on account of any property which has been given, when the donor has a right, by means of a direct action in rem,, or a praetorian action, or a personal one for recovery, to provide his own remedy? Nor is retention necessary where property has been removed, as all husbands are entitled to an action on this ground. Let no allusion be made to retention on account of children, as the natural impulse itself induces parents to rear their children.

In order to prevent husbands from inventing all kinds of offences against their wives to enable them to retain their dowries, it has already been established by the Imperial Constitutions that marriage can be dissolved if the wife is to blame, when it becomes necessary for this to be done. The retention of the dowry because of expense incurred to preserve the property of which it is composed does not seem to Us to be a sufficient cause; for, while necessary expenses diminish the amount of the dowry, the useful ones should not be deducted, when the Actio rei uxorisa is employed, unless with the consent of the woman; and it is not foreign to the question that her consent

should be obtained, for the action on mandate can be granted by Our authority to the husband against the wife, to enable him by this means to obtain what he has expended for the benefit of her property. If the consent of the woman should not be given, and the expenses have been properly incurred, the action on the ground of voluntary agency will be sufficient if brought against her. When, however, the expenses were incurred for pleasure, even though this may have been done with her consent, the husband will be permitted to remove whatever he constructed (without, however, causing any injury to the property as it previously existed), so that the discussion of all of these methods of retention may finally be disposed of, and the action based on the stipulation shall, in accordance with its nature', and with good reason, admit of no retention.

(6) In maintaining the right of action under the stipulation, there is no doubt whatever that if the woman should die during the existence of the marriage, her dowry will not benefit her husband, unless some agreement was made for this purpose. But the right of action based on the stipulation will, in accordance with its provisions, be transmitted to the heirs of the woman, whether this was expressed in the agreement or not, or is understood to do so by virtue of this law.

(7) As in the case of the exaction of a dowry, the action based on the stipulation naturally requires that restitution of the whole amount of the dowry shall immediately be made by the husband, and it directs that this shall be done in three annual payments, where the property is such that it can be weighed, counted, or measured, and that not the entire amount, but only so much as the husband can furnish, shall -be returned where he has not, with fraudulent intent, diminished his estate. Under these circumstances, We grant the remedy of the action on stipulation, so that where the marriage has been dissolved, and no agreement has been made, the husband shall only have judgment rendered against him for an amount which he is able to pay, for the reason that this is perfectly just, and due to the respect which the husband has a right to claim, if he has not been guilty of fraud; and he should also provide security that, if his fortune improves, he will attempt to make good the deficiency. The restitution of the dowry shall be made, not in payments in one, two, and three years, but entirely within a single year, where it consists of movable property, or of such as can move itself, or of such as is incorporeal; and any other which is attached to the soil shall be restored without delay; which rule applies to both actions.

If, however, the husband should fail to return the movable property, or that which can move itself, or that which is incorporeal, after the lapse of a year, or the land immediately after the dissolution of the marriage, he must pay interest at the rate of three per cent upon the valuation of all which is not immovable, which can be collected in good faith, and he must give up the crops which have been gathered from the time that the marriage was dissolved; and, in like manner, all rents and profits derived from transportation by ships or beasts of burden, or from the labors of slaves, and whatever is obtained from

the public distribution of provisions, or from any other similar source, shall be surrendered to the woman.

(8) Therefore, with reference to the following Section, the action based on the stipulation still retains its distinctive character; so that where a woman has been appointed heir by her husband, and a question as to the reservation of the portion of the Falcidian Law arises, she will be permitted to deduct her dowry from the estate of her husband, just as in the case of other debts, and afterwards deduct the Falcidian fourth.

(9) As the action on the stipulation maintains its own character in those instances which We have enumerated, it is necessary in the following Sections to explain what is common to both proceedings, and show what can only be obtained by the action on stipulation, or what is peculiar to that for the recovery of the property of the wife, so that it may all be combined in the action on stipulation. Hence the offspring of female slaves forming a part of the dowry, that is to say, such as have not been appraised, as well as whatever property the dotal slaves may have acquired in any way (except through the use of the property of the husband, or by their own labor), is in both actions also considered to belong to the woman. The young of beasts of burden, and everything included under the name of crops, belong to the husband during the time of marriage, whether they have been appraised, or not. The crops of the last year, during which the marriage was dissolved, should be transferred to both parties pro rata, according to the time, and of course where the property has not been appraised, this rule applies to both actions. The husband who, as the purchaser of property which has been appraised, enjoys the benefit of it, must bear the loss, and is liable for the risk attending the same.

(10) The son of the deceased person who, through preference, obtains the dowry of his wife or his daughter-in-law, by means of an action in partition, must, in accordance with a rule peculiar to the action on stipulation, furnish his co-heirs security that he will defend the title to the property constituting the dowry.

(11) Therefore, let us see what ought to be taken from the action to recover the property of the wife and added to that on stipulation. It is a positive and undoubted rule of law that if a relative in the ascending male line, after having provided a dowry for his daughter or granddaughter, should emancipate her, or should himself die, by employing the Actio rei uxorise, the dowry will absolutely belong to the woman, even if she had been disinherited (which was not the case in the action on stipulation, for it, like other actions, was divided among all the heirs).

It seems to Us to be perfectly just that the woman should receive her dowry through preference by an action on stipulation, whether she was emancipated or disinherited, or appointed with other heirs.

(12) This rule having been adopted by Us, many others have been promptly disposed of, as the dowry can exclude the action for in-

officiousness (especially if it is equal in amount to the fourth prescribed by law), and can be placed in the mass of the estate, if the head of the household should die intestate; or if, having executed a will, the testator made this provision. All these matters have been derived from the Actio rei uxorise, and incorporated into the action on stipulation.

(13) Another provision derived from the action to recover the property of the wife has been added to the action on stipulation. For when a stranger, no matter who he might be, gave a dowry, without having made any stipulation or agreement with reference to its return to himself, the woman could bring the Actio rei uxorise, which right was not formerly included in the action on stipulation.

Where a stipulation was made, or an agreement entered into, the stipulator, or he who made the agreement, was entitled to a civil action under the stipulation, or one prgsscriptis verbis. At the present time, however, We do not wish this to be done, but where the stranger, in giving the dowry, did not especially stipulate or provide that it should be returned to him, it is then presumed that the woman herself made the stipulation, and that, under the circumstances, the dowry should be acquired by her. Nor do We desire that, in an instance of this kind, a stranger shall be considered to have made a tacit stipulation, in order that what We have introduced for the benefit of women may not be employed to their disadvantage; nay more, in dowries like these, which are either given or promised by .strangers, the woman herself is considered to have made a tacit stipulation, unless the stranger expressly agreed or stipulated that the dowry should be returned to him; as, by not having entered into a stipulation, he is considered rather to have made a donation to the woman than a provision for his own benefit.

We understand by the term "stranger" every person, with the exception of a relative of the male sex in the ascending line, who does not have the female who is endowed under his control, for We grant a tacit right Of action based on the stipulation to a relative of this description.

(14) The following provision, also derived from the Actio rei uxorise, has also been included in the action'on stipulation. For when, after the marriage has been dissolved, the dowry is claimed by the father of the woman, if there was ground for the action to recover the property of the wife, he could not proceed alone without the consent of the daughter. And if he should die before suit was brought, or even after issue had been joined, the dowry would revert to the daughter as a part of her own property. This, however, was not the case in the action on stipulation, for there the father alone had the right to exact the dowry, without waiting for the consent of his daughter, and if he died, he transmitted it to his heirs. But it is sufficiently humane, sufficiently dutiful, and sufficiently advantageous to marriage, for the right attaching to the action, to recover the property of the wife to be transferred to the action on stipulation.

Extract from Novel 97, Ciiapter V. Latin Text.

But although the dowry may be returned to the father, either by the right of paternal control, or under the terms of an agreement, he, nevertheless, is not permitted to diminish the original amount of it, when his daughter marries a second time, unless his estate has been lessened by some accidental misfortune, for then he is not compelled to furnish any larger dowry to the second husband than his means will permit.

END OP THE EXTRACT.

THE TEXT OP THE CODE FOLLOWS.

(15) And as the Lex Julia forbade the alienation of dotal land situated in Italy to be made by the husband, without the permission of his wife, and also did not permit him to hypothecate it, if his wife had not consented, We have been asked if it was not necessary for a provision of this kind to apply not only to lands in Italy, but to all others. Hence We have decided to extend this rule so as to include not only lands in Italy, but also to those of the province. As, however, We have, by this law, given the right of hypothecation to the woman, she has a sufficient remedy, if her husband should desire to alienate the land, but to prevent her from voluntarily impairing her right of hypothecation, it becomes necessary under such circumstances to come to the relief of women; and hence We have added that a husband cannot only not hypothecate land forming part of the dowry, without the consent of his wife, but that he cannot alienate it, lest, through the weakness of his nature, he may suddenly be reduced to poverty.

For although the Anastasian Law treats of the consent of women, and of those who renounce their rights, still, it must be understood with reference to the property of the husband, or to a dowry which has been appraised, that, as the ownership of the same belongs to the husband, he will also be responsible for the risk.

So far, however, as land which has not been appraised, and which is very properly styled dotal is concerned, the right which was incomplete under the Julian Law, but has been fully provided for by Ours, shall remain intact, and shall not only be observed in Italy, but in all other lands, and can be abrogated solely by hypothecation.

(16) We have considered it necessary to add as a general provision to the present law, that, when any agreements have been made for the restitution of the dowry, or for time, or for interest, or for anything else which is not contrary to the laws or constitutions, they shall be executed. Where, however, the marriage has been dissolved by repudiation, all the rights included either in the Theodosian Law or Ours shall be preserved intact.

In like manner, the provisions enumerated in the Anastasian Law, with reference to persons separated by common consent, shall remain firm and unimpaired.

And, generally speaking, whatever has been provided by the Sacred Constitutions, or by the works of learned jurists, which is not found to be opposed to this law, shall remain in full force, and be included

in the action on stipulation; even though it may have been discussed under the action for the recovery of the property of the wife.

We direct that these rules shall only apply to dowries which have been given or promised after the promulgation of this law, even if they have not been reduced to writing. For We do not permit instruments that have been already drawn up to be deprived of their force, but time must be given for them to take effect.

Given on the Kalends of November, during the Consulate of Lam-padius and Orestes, 530.

TITLE XIV.

CONCERNING AGREEMENTS MADE WITH REFERENCE TO DOWRIES AND ANTE-NUPTIAL DONATIONS, AS WELL AS SUCH AS RELATE TO THE PRIVATE PROPERTY OP THE

WIFE.

1. The Emperors Severus and Antoninus to Nica.

The condition which you impose when you give a dowry to a ward whom you have brought up must be observed, and the objection ordinarily interposed, namely, that a right of action is not derived from the contract, cannot be raised, for We only state this when a contract is without consideration. It is otherwise when money is given, and an agreement is entered into with reference to its repayment ; for then an equitable action will lie for its recovery.

Given on the seventh of the Kalends of February, during the Consulship of Albinus and ^milianus, 207.

2. The Emperor Antoninus to Theodota.

You should entertain no doubt that the income from land given by way of dowry cannot be recovered, where, in accordance with an agreement, it has been used for your expenses.

Given on the eleventh of the Kalends of April, during the Consulate of Antoninus, Consul for the fourth time, and Balbinus, 214.

3. The Emperor Gordian to Torquata. :

Although your father, when he gave you in marriage, may have agreed that, if your husband should die leaving children belonging to you both, a portion of the dowry should be retained in their name, still, an agreement of this kind can be of no benefit so long as you are entitled to an action to recover the entire amount of the dowry.

Given on the sixth of the Ides of January, during the Consulate of Gordian and Aviola, 214.

4. The Same to Agathus.

When you allege that, by the dotal contract in accordance with which your mother agreed with your father that if she died during marriage, the dowry should be restored to you and your brothers, the stipulation with reference to you will not be legal, if you were

not all under the control of your father, and if she should die during the marriage, an action in your behalf will not lie. Where, however, a verbal obligation was properly contracted, you will have the right to demand the dowry, and will not be prevented from asserting your claim, especially if you are no longer subject to paternal authority.

Given on the fifth of the Ides of June, during the Consulate of Sabinus and Venustus, 241.

5. The Emperors Diocletian and Maximian to Claudius.

An estate passes by will to strangers. Therefore, when you assert that by a dotal instrument, an agreement instead of a will was interposed, by the terms of which, after the death of the wife, her property, to which you are not entitled as dowry, will belong to you, you are advised that you cannot, by any proceeding, sue her heirs or successors, in order that what is in no way due may be delivered to you.

Given on the Nones of February, during the Consulate of the abovementioned Emperors.

6. The Same Emperors and Czesars to Rufus.

Where it was agreed that if the wife should die during marriage, the dowry should remain in the hands of the husband, it is established by law that an agreement of this kind precludes the recovery of the dowry which came from the father, as it has frequently been determined by legal authority that the condition of the dowry, of which the father has the sole right of recovery, cannot be rendered worse by a contract.

7. The Same Emperors and Cassars to Philetus.

Where a father agreed that a dowry given for his daughter to his son-in-law should be transferred to his grandchildren, if she should die first during the marriage, although he cannot bring suit in their behalf, still, a pratorian action will lie for their benefit in accordance with the principles of equity.

Given at Nicomedia, on the fourteenth of the Kalends of January, during the Consulate of the Csesars.

8. The Emperors Theodosius and Valentinian to Hormisdas, Prse-torian Prefect.

We decree by this law that the husband shall not interfere with any of the property which his wife has exclusive of her dowry, and which the Greeks designate as parapherna, if she forbids him to do so, nor can he impose any necessity upon her in this respect. For, although it is well that the wife, who entrusts herself to her husband, should also permit her property to be controlled by his judgment, still, as it is only proper that the legislators should comply with the rules of equity, We are not willing (as has already been stated) that the husband should in any way meddle with the property of the wife against her consent.

Given during the Ides of ...

9. The Emperors Leo and Anthemius to Necostratus, Prsetorian Prefect.

We decree that, at the death of either the husband or wife, he or she shall be entitled to the same share, and not the same amount of money that the husband would be entitled to from the dowry, or the wife from the ante-nuptial donation; for instance, if the husband had given an ante-nuptial donation of a hundred solidi, the wife shall be permitted to give a dowry of a smaller or a larger amount; and the husband shall be allowed to give an ante-nuptial donation in the same way.

It should, however, be observed that whatever amount the wife stipulates to give up out of the ante-nuptial donation, if her husband should happen to die first, the husband also should stipulate for himself concerning the dowry (but not with regard to a sum of money), if the wife should be the first to die during marriage. When an agreement is made contrary to what is herein provided, We order that it shall be null and void, and that no recovery can take place by virtue of it.

We decree that the same rule shall be observed where a father has given or promised an ante-nuptial donation, in behalf of his son, or a mother, or the future husband, provided he is his own master, or anyone else whosoever, has done so in behalf of the future bride. In like manner, if the father or mother, or the future wife, if she is her own mistress, or someone else, should give or promise a dowry in her behalf to her future husband, she herself will be considered to have tendered the dowry, when it is offered by any other person for her benefit. This is true to the extent that she can claim for herself the dowry tendered by another in her behalf, unless he who tendered it may have stipulated or agreed immediately (that is to say, at the time of the offer or promise), that the aforesaid dowry should be returned to him.

Given on the fifteenth of the Kalends of September, during the second Consulate of the Emperor Anthemius, 408.

Extract from Novel 97, Chapter I. Latin Text.

Equality should, by all means, be observed with reference to dowries and ante-nuptial donations, not merely concerning the profit which may be derived from them, but also with regard to the guarantee and constitution of both, and no increase in the same shall be made by anyone; or, in case this is done, the amount of the augmentation must be the same on both sides, in order that the equality may not in this way be destroyed.

Extract from Novel 2, Last Chapter. Latin Text.

Where, however, the wife has given nothing of the dowry agreed upon, she can receive nothing whatever from the ante-nuptial donation, in case of the death of her husband. Likewise, if she gave less than she promised, she can only benefit by an amount in proportion to what she bestowed.

10. The Emperor Justinian to Menna, Pr&torian Prefect.

In accordance with a law of the Emperor Leo, of Divine Memory, it is provided that agreements with reference to dowries and antenuptial donations should agree with reference to the amounts, but nothing was added as to what should be done if this rule was not observed; and We, desiring that everything should be clear, do hereby order that, where the amounts are unequal, the larger one should be reduced so as to correspond with the smaller, in order that, in this way, both parties may obtain amounts equal to the smaller one.

Given at Constantinople, on the eighth of the Ides of April, during the Consulate of Decius, 529.

11. The Same to John, Prastorian Prefect.

Where a woman has given evidences of debt to her husband (that is to say notes, bearing interest) which are not included in her dowry, with the intention that they shall remain in the hands of her husband as her own private property, and this has been inserted into the dotal contract, the question arose whether the husband would be entitled to any action either direct or equitable, growing out of the transaction, or whether the notes would all remain with the wife, and under what circumstances the right to bring suit should be granted to the husband. Therefore, We order that if anything of this kind should take place, the right of action shall by all means remain with the wife, but that permission shall be granted the husband to institute proceedings before competent judges; that no guarantee of ratification shall be required of him; and that any interest derived from said securities shall be expended for the benefit of himself and his wife, but any money forming part of the principal which he may collect, shall be used for the benefit of the wife, or shall be employed for any purpose to which she may give her consent.

If, however, it is expressly stated in the dotal instrument that the said securities shall be hypothecated for the property of the husband, the wife must remain content with this hypothecation. But if this is not found to be included in the dotal contract, under Our present law, she will be entitled to a lien on the property of her husband, from the time when he collected the money. For, before the wife herself will have the power (if she should desire to exercise it) to bring any actions, either by her husband or by other parties, collect the money, and receive the said notes from her husband, proper security should be given him. While the said notes remain in his hands, he will be responsible for fraud, and must display the same diligence with reference to them which he is found to exercise concerning his own property, in order that his wife may not suffer loss through neglect or criminality on his part. If this should happen, he himself will be compelled to indemnify the wife out of his own property.

Given on the Kalends of November, during the Consulate of Lam-padius and Orestes, 530.

TITLE XV. CONCERNING DOWRY PROVIDED FOR BUT NOT PAID.

1. The Divine Severus and Antoninus to Dionysia.

Payment, and not the contents of the dotal instrument, constitutes a dowry; therefore you are aware that you cannot be permitted to demand your dowry unless you prove that it has actually been given by you.

Given on the thirteenth of the Kalends of August, during the Consulate of Chilo and Libo, 205.

2. The Emperor Alexander to Papiniana.

Whatever a husband has added out of his own property to the dowry, with the intention of giving it during the existence of the marriage, can be demanded by the heirs of the husband, to the extent that his liberality was exercised, if he should die during the marriage and did not revoke the said donation which was lawfully made and given as a dotal increase.

Given on the Nones of December, during the Consulate of the Emperor Alexander, Consul for the third time, and Dio, 230.

3. The Emperor Justinian to Menna, Prastorian Prefect.

With reference to dowries which it is customary to mention in dotal instruments as having been given, when in fact they have not yet been paid, but only a promise has been made to pay them, it shall be lawful to interpose the exception based on the non-payment of money, not only by the husband against the wife or her heirs, when the marriage has been dissolved either by the death or the repudiation of the wife, but also by the heirs of the husband, where the marriage has been dissolved by his death, and by the father-in-law or his heirs; if it was stated in the dotal instrument that he received a dowry along with his son, as well as against every person who is stated in writing to have received the dowry with the husband, and his heirs; provided, however, that this privilege shall be granted only within a continuous year from the death of the husband or the wife, or from the date of the notice of repudiation.

Given on the Kalends of July, during the Second Consulate of Our Lord, the Emperor Justinian.

Extract from Novel 100, Chapter II. Latin Text.

This takes place where the marriage is dissolved within the space of two years. If this should occur after the expiration of two years, but before the tenth year has elapsed, the husband himself, as well as his heir, shall have the right to make complaint within the term of three months. Where, however, the period of ten years has elapsed, no complaint shall, under any circumstances, be permitted, but the right to complete restitution shall be allowed, above all, if minority is involved in the case.

TITLE XVI.

CONCERNING DONATIONS MADE BETWEEN HUSBAND AND WIFE, AND BY PARENTS TO THEIR CHILDREN, AND CONCERNING RATIFICATION.

1." The Emperor Antoninus to Triphena.

Since the Treasury has taken possession of the property of your husband as being without an owner, he having left no heirs, any donations made by him cannot be revoked, if he continued in the same mind to the end of his life.

Given on the third of the Ides of January, under the Consulate of the two Aspers, 213.

2. The Same to the Soldier Marcus.

If you prove before the Governor of the province that the female slave in question was purchased with your money, even though it was stated in the bill of sale that she was destined as a gift to your concubine, he must order her to be restored to you; for although this donation may be valid where matrimony does not exist, still I am unwilling that my soldiers should, by means of perfidious blandish-^ ments, be plundered in this way by their concubines.

Given on the twelfth of the Kalends of March, during the Consulate of the Emperor Antoninus, Consul for the fourth time, and Balbinus, 214.

3. The Same to Epictetus.

The donation of slaves and other property which you say was made to you by your wife was confirmed by a Constitution of mine and my Divine Father Severus, provided that she was her own mistress when she made the donation, or did so with the consent of her father, and remained of the same mind with reference to it until the last day of her life. If, however, the donation was made by your father-in-laW after the death of his daughter, it also will be valid as a donation inter vivos.

Given on the fourth of the Nones of March, during the Consulate of the Emperor Antoninus, Consul for the fourth time, and Balbinus, 214.

4. The Same to Claudian.

Donations cannot, under the Civil Law, be made between persons to whom the husband and wife are legally subject, and where either of them is under their control.

Given on the third of the Ides of August, under the Consulate of the two Aspers, 213.

5. The Emperor Alexander to Quintilla.

If (as you state) your father was under the control of the same person that you were, and gave as a donation to your husband (his

son-in-law) a certain instrument executed by a debtor, and died during your marriage, and you were afterwards separated from your husband, the transaction is not valid.

Given on the Ides of February, under the Consulate of Albinus and Maximus, 228.

6. The Same to Nepotianus.

Although property which belonged to you by law was deposited in the name of your wife, the title to the same cannot be affected on this account, even though anyone may suppose that by this transaction you have donated your property to her, as a donation made during marriage, and before the death of the wife who profited by the liberality, is void. Nor is it unknown that the ancient legislators very correctly held the opinion that, when a wife cannot explain how she acquired property honorably during marriage, she is presumed to have obtained it from the estate of her husband.

Given on the Nones of December, during the Consulate of the Emperor Alexander, Consul for the third time, and Dio, 230.

7. The Same to Theodota.

Where, in accordance with the will of your father, you married the son of your guardian, the donation made to your husband is void in law. If, however, the marriage is not legally valid (although the donation in this case is not void) for the reason that the person who cannot be called your husband, is unworthy, equitable actions for the recovery of the donation will lie in your favor.

Given on the Kalends of October, during the Consulate of Rufus and Maximus, 233.

8. The Same to Leo.

If you permitted your wife to take the crops of the land which you received as dowry, during the time of marriage, and she consumed them, you demand without reason that they shall be restored to you, after a divorce has taken place. If, however, she was enriched by them, she can be sued for the excess.

Given on the fifth of the Kalends of October, during the Consulate of Maximus and Paternus, 234.

9. The Emperor Gordian to Origen.

Although slaves have been purchased by your wife with your money, still, if they were delivered to her, their ownership belongs not to you but to her, and you only have a right to recover the money, whether you made the payment while transacting her business, or you gave her the amount of the price as a donation. Hence you can bring a competent action against her for the entire sum or for the amount by which she has become enriched.

Given on the seventh of the Kalends of October, during the Consulate of Pius and Pontianus, 239.

10. The Same to Valerian.

If the former husband of your wife, being his own master, gave her lands or other property as a donation, and' continued in the same mind up to the time of his death, the donation will be confirmed by a Rescript of the Divine Severus. But if the father of the deceased unjustly took the property, he will be compelled by the Governor of the province to return it; for even if the death of the husband was caused by the wickedness of his wife, he, while imputing to her the offence, should not, under the pretext of the accusation, deprive her of the property given to her, as a case where liberality is involved differs from a criminal accusation.

Given on the seventh of the Kalends of February, during the Consulate of Arian and Pappus, 244.

11. The Same to Maximus.

Just as a claim for the amount which the husband promised his wife every month, or every year, for her own private use, cannot be allowed, so, it is clear that, for the same reason, money paid and expended on this account cannot be recovered.

Given on the fifth of the Kalends of July, during the Consulate of the Emperor Gordian, Consul for the second time, and Pompeianus, 242.

12. The Same to Secundina.

If your husband, having become involved in debt, encumbered to his creditors land previously given to you as a donation, and which you, on this ground, claim under your rights, you are advised that the said obligation interferes with your defence; for it is evident that a donation made by a husband to his wife is not only revoked by an obligation of this kind, but also by a donation or sale of his property, or by any other mode of alienation of the same whatsoever.

Given on the third of the Kalends of February, during the Consulate of Arian and Pappus, 244.

13. The Emperors Diocletian and Maximian to Rufina.

If (as you state) the land given to you as a donation by your husband was encumbered by him to his creditors, there is no doubt that the alienation will be valid after the deduction of the amount of the indebtedness (that is, where the policy of the law does not deprive the creditor of his right of action). If, however, the donation was legally made, either because this was done before marriage, or under the circumstances in which a donation is allowed to take place during its existence, the obligation is invalid, for it is certain that the act of your husband, whom you allege is dead, cannot affect your rights.

Given on the twelfth of the Kalends of July, during the Consulate of Maximus, Consul for the second time, and Aquilinus, 286.

14. The Same to Octaviana.

The right to demand a legacy or a trust is not, by any means, conferred by the mere insertion of words in last wills, although they

may be useful for the purpose of trusts or legacies, but this is only the case where expressions are inserted with the intention of bequeathing the property; hence, it is clear that the matter contained in your petition involves a question of intent, and not of law. Therefore, after having read the will, We notice that your husband, by a preceding donation, reserved the ownership of the property for you, and afterwards stated that you should obtain it for your greater security, and the meaning of the words does not indicate that a trust was left, but that your husband authorized by the Decree of the Senate, when about to die, provided that the gift of the ownership of the property should be confirmed, and secured to you, as far as this could be done at the time of his decease.

Given on the third of the Nones of October, under the Consulate of the same Emperors.

15. The Same to Justus and Others.

If your father did not enter into a true contract, but donated the possession of certain property to your mother by a species of sale, and the remainder of his estate was not sufficient to satisfy the Treasury for what was due from him as Chief Centurion of the Triarii, although he did not change his mind with reference to the donation, still, recourse must be had to the identical property for the purpose of making up the amount which could not be collected from what was left by him. If, however, your father, by changing his mind, interrupted the course of his bounty, there is no doubt that the ownership of the said property will revert to his estate.

Given on the fourth of the Kalends of February, during the Consulate of Tyberianus and Dio, 291.

16. The Same to Theodore.

If your emancipated sons should acquire for themselves the estate of their mother, prove before the Governor of the province that you did not purchase the land in question in the name of your wife for the purpose of giving it to her, but that you have already made use of her name, which you can do by showing that the ownership of the said land was transferred to you by the vendors, through their giving possession of the same, so that the injustice of your children having been exposed, your title to the property may remain unimpaired.

If, however, you did this with the intention of bestowing the land upon her, the right of action to recover the purchase-money will lie in your favor.

Given on the sixth of the Ides of March, during the Consulate of Tyberianus and Dio, 291.

17. The Same Emperors and Cassars to Capitolina.

With reference to the property brought into the house in addition to the dowry, and which you allege has been consumed by your husband, if this was done by you for the purpose of making a donation, you are informed that you will only have a right of action against

the heirs for the amount by which your husband profited. If, however, he used the property against your consent, the whole of it must be returned to you.

Given at Heraclea, on the eighth of the Kalends of March, during the Consulate of the same Emperors, 291.

18. The Same Emperors and Csesars to Materna.

Where a donation is made by a husband to his wife during marriage, the ownership of the property cannot be transferred in the beginning; nor afterwards, if a divorce should take place, or if the person who is the recipient of the bounty should die first; nor can it subsequently become valid, if it has been revoked by him who gave it.

Given on the fourth of the Kalends of September, during the Consulate of the same Emperors.

19. The Same Emperors and Csesars to Dionysia.

If your mother transferred a house to you during your marriage she renders it part of your property.

Given on the Ides of July, at Philippopolis, during the Consulate of the Csesars.

20. The Same Emperors and Csesars to Claudia.

A creditor, after his debt has been paid, cannot transfer to the wife of his former debtor any of the pledges which has been released, nor will the consent of the said debtor, acceded to by his former creditor, avail to any extent to transfer the ownership of the property by a fictitious sale; as not only simulated transactions, but also such as have reference to donations of property to a wife by her husband during marriage, are considered as never having been made on account of their prohibition by the Civil Law (when you suppose the case that a wife is survived by her husband).

21. The Same Emperors and Csesars to Maucalia.

Where, by engagements which you yourself contracted, you borrowed money and spent it for your husband, with the intention of considering it a donation, as this has been done for a worthy purpose, and your husband has not been enriched thereby, you should understand that an action will not lie in your favor against him.

Given on the third of the Ides of August, during the Consulate of the Caasars.

22. The Same Emperors and Csesars to Archinoa.

A husband can give a slave to his wife during marriage, with the intention of manumitting him.

Given on the Kalends of August, during the Consulate of the Caesars.

23. The Same Emperors and Csesars to Csecilianus.

If your mother-in-law placed you in possession of a certain tract of land as a donation, either before or after your marriage, her change of mind will avail nothing for the purpose of revoking the gift.

Given on the Kalends of November, during the Consulate of the Csesars.

24. The Emperors Constantine to Petronius Probinus.

Any property of a wife, which may have come into her possession through inheritance, purchase, or the gift of her husband made before he was criminally accused, if the latter should be condemned to death, or reduced to a servile condition by way of penalty, shall remain intact; nor shall she be oppressed by the misfortune of another's crime, as it is only just that she should, in accordance with the laws, enjoy the property derived from her father or mother, as well as that which she herself has acquired; and any donation made by the husband before he was accused of crime, for the reason that it is regarded as the recompense of modesty, should stand, just as if the course of nature, and not punishment, had removed him.

When, however, he has been forbidden the use of water and fire, or has been sentenced to deportation, and death did not result from the penalty, any donations made by him to his wife will remain in abeyance, because in cases of this kind the marriage is not dissolved; so that if the husband should not revoke them during his lifetime, they will be confirmed by his death, and Our Treasury will not afterwards have any claim upon such property.

Given on the second of the Kalends of March, at Sardinia, during the second Consulate of the Csesars Crispus and Constantius, 321.

Extract from Novel 22, Chapter Vill. Latin Text.

But, at the present day, no one originally well born can be rendered a slave by way of punishment for crime, and therefore marriage is not dissolved for this reason.

25. The Emperor Justinian to Menna, Prsetorian Prefect.

We order that donations made by parents for the benefit of their children of either sex, who are under their control, or those made by a wife for the benefit of her husband, or by a husband for the benefit of his wife, or by either of them in behalf of a third party to whom it is not lawful to make a donation during marriage, or for the benefit of any person to whom they cannot make a donation, shall be rendered valid by the silence of the donor, if they reach the amount authorized by law or exceed it, and have been recorded, for We do not permit a donation of a larger sum than is legal to be recorded, or confirmed by the silence of the person who made it.

When, however, the donor specifically confirms such donations by his or her last will, they shall be considered as ratified without any distinction, so that if they exceed the amount provided for by law, and have not been recorded, their explicit confirmation shall be valid from the time when this took place. But if the donation is not excessive, or if it is larger than is sanctioned by law, and has been recorded, then the silence of the donor, and the special confirmation by either him or her shall revert to the time when the donation was made, just

as it is necessary to refer other ratifications of business matters to the date of the execution of the contracts. Nor can any subtle distinction between law and fact be introduced.

Given on the Ides of December, during the second Consulate of Our Lord, the Emperor Justinian, 528.

26. The Same to Menna, Prsetorian Prefect.

We order that the donations which the Divine Emperor has made in favor of the most pious Queen, his wife, and those which she has made in favor of her most serene husband, shall immediately be valid, and be fully confirmed, for the reason that Imperial Contracts take the place of laws, and require no external assistance.

Given on the eighth of the Ides of April, during the Consulate of Decius, 529.

27. The Same to John, Prsetorian Prefect.

Where anyone who was united in marriage, after having made a donation for the benefit of another, is taken by the enemy and reduced to slavery, and subsequently dies in captivity, the question arose whether a gift of this kind, which he had previously made, would be confirmed or weakened by this occurrence. It was also asked if the donor should die in Roman territory, and he who received the donation was in captivity at the time of his death, and afterwards returned, whether the donation would then be held to have been confirmed. Therefore, as in both these instances, the doubt should be removed by an Imperial remedy—for there is nothing so peculiar to the majesty of the Empire as humanity, by means of which alone the imitation of God is preserved—We decree that, in both these cases, the donation shall be valid.

Given on the Kalends of December, under the Consulate of Lam-padius and Orestes, 530.

TITLE XVII.

CONCERNING REPUDIATION AND THE ABOLITION OP THE ACTION DE MoRiBus.1

1. The Emperor Alexander to Abutiniana.

Marriage is not dissolved by deportation or by the interdiction of water and fire, if the state into which the husband has fallen does not

1 Little is known concerning the Actio de moribus mulieris, which was a personal one of a penal character, in which the return of the dowry was involved. It was resorted to in case of the criminality, infidelity, drunkenness, or other serious misconduct of the wife, and the court was authorized to impose a fine at his discretion. "Vir cum divortium fecit, mulieri judex pro censore est, imperium quod videtur habet, si quid perverse tsetreque factum est a muliere, multitatur; si vinum bibit, si cum alieno probri quid fecit, condempnatur." (Aulus Gellius X, XXIII, 4.)

If the husband was aware of her character before he married her, he forfeited all claim to the dowry.—ED.

alter the affection of the wife. Therefore the exaction of the dowry is not competent by law, but neither the rules of equity nor any examples permit that she whose attachment is worthy of praise should remain unendowed.

Given on the Nones of November, during the Consulate of the Emperor Alexander, Consul for the third time, and Dio, 230.

2. The Emperors Valerian and Gallienus, and the Cassar Valerian to Paulina.

Your daughter is free to marry if, having waited for her betrothed for three years, and all hope of this union having been lost, she does not think that she should wait any longer, and thereby miss an opportunity for marriage, as, even if the man is present and she should change her mind, she can serve notice on him to that effect.

Given on the seventh of the Kalends of April, during the Consulate of .aCmilianus and Bassus, 260.

3. The Emperors Diocletian and Maximian to Tullius.

There is no doubt that everything transacted properly and after due consideration is, by law and reason, rendered firm and valid. Wherefore, if you gave a dowry for the benefit of a woman, and stipulated for its return at the time of her death, and a fictitious repudiation has been made for the purpose of deceiving you, and the marriage is rescinded for a short time, the Governor of the province shall entertain no doubt that you are entitled to receive the dotal property which you offered before the marriage, for it is certain that the above-named official should see that whatever has been done contrary to justice does not profit those who have resorted to cunning to evade the law, for schemes of this kind are displeasing to Us.

It has also been decided by the ancient legal authorities that fictitious notices, that is to say those of repudiation, are of no effect, whether the parties pretend to have renounced either their marriage or betrothal.

Given on the second of the Kalends of September, during the Consulate of the same Emperors and Caesars.

4. The Same Emperors and Csesars to Piso. The divorce of a daughter is not under control of her mother. Given on the third of the Kalends of January, during the Consulate of the Caesars.

5. The Same Emperors and Csesars to Schyro.

Our Father, and most religious Emperor the Divine Marcus, decided that the consent of a parent should not be considered as ratified where he gave his consent to the marriage in the beginning and afterwards revoked it, and the daughter under paternal control decided to remain with her husband, unless the act of the father was caused by some good and sufficient reason. No rule of law directs a wife to return to her husband against her consent. The father of an emancipated daughter cannot, at will, authorize her divorce.

Given at Nicomedia, on the fifth of the Kalends of September, during the Consulate of the Caesars.

Extract from Novel 22, Chapter XIX. Latin Text.

And, on the other hand, a new constitution with reference to marriage sets forth what is the law where the children subject to paternal authority desire to be divorced against the wishes of their parents. That is to say, that marriages shall not be dissolved to the injury of the parents, who either alone, or along with their children, have offered or received a dowry, or an ante-nuptial donation; for the reason that as the consent of parents is required in contracting marriage, so, also, it is necessary for the purpose of dissolving it.

6. The Same Emperors and Cassars to Phcebus.

Although the written notice of repudiation may not have been delivered to the husband, or he may not have been aware of it, the marriage will, nevertheless, be dissolved.

Given at Nicomedia, on the eighteenth of the Kalends of January, during the Consulate of the Caesars.

7. The Emperors Constantine to Dalmatius.

A wife who, after the lapse of four years from the time of the departure of her husband for the army, has been unable to obtain any tidings of his safety, and therefore is thinking of contracting another marriage, still should not do so before sending notice of her intention to the general of the army, for then she will not be considered to have contracted a clandestine marriage; nor will she sustain the loss of her dowry, or be liable to capital punishment, who, when so long a time has elapsed, is proved to have married, not rashly or stealthily, but after a public announcement of her intention has been made. Therefore it should be noted that, where no suspicion of adultery exists, and no clandestine marriage is disclosed, no danger need be apprehended by those who have contracted matrimony under such circumstances, since, if the marriage has been knowingly and secretly violated, the law will impose the proper punishment.

Given during the Consulate of Felicianus and Titian, 337.

Extract from Novel 117, Chapter XI. Latin Text.

To-day, no matter how many years the husband may remain in the army, the wife should be patient, although she may have received neither letters nor tidings from him. If she hears that he is dead, she ought not to marry again before either going herself, or sending someone to the officer under whom her husband served, and interrogating him as to whether he is actually dead or not, so that the said officer may swear in court that the husband is no longer living, which having taken place, the woman may marry after a year has elapsed. If, however, she should do so without taking this precaution, she, as well as the man who marries her, shall be punished as guilty of adultery.

Where the person who took the oath is convicted of having sworn falsely, he shall be dismissed from the army, and shall pay ten pounds of gold to him whom he falsely stated to be dead, and the latter shall have permission to recover his wife if he desires to do so.

8. The Emperors Theodosius and Valentinian to Hormisdas, Prse-torian Prefect.

We decree that legal marriage may be contracted by consent, but this having once been done, that it cannot be dissolved unless by notice of repudiation, for the favor to which children are entitled demands that its dissolution should be rendered more difficult.

(1) We clearly enumerate the causes of repudiation by this most salutary law, for as We (with proper limitations) forbid marriage to be dissolved without good cause, so that where one of the parties is compelled by necessity, or the other is oppressed by some misfortune, We desire that he or she shall be liberated by Our aid, when this becomes necessary.

(2) Therefore, if a woman should ascertain that her husband is an adulterer, a homicide, a poisoner, or one who is plotting anything against Our government; or has been convicted of perjury or forgery, or is a violator of sepulchres, or has stolen anything from sacred buildings; or is a robber or a harborer of robbers, a cattle thief or a kidnapper; or, in contempt of his house and of her, or in her presence, has consorted with dissolute women (which is especially exasperating to females who are chaste) ; or if he has attempted to deprive her of life by poison, or by the sword, or in any other way; or if she should prove that he had beaten her (which is not allowed in the case of freeborn women), We then grant her permission to avail herself of the necessary aid of repudiation, and to present legal reasons for divorce.

Extract from Novel 117, Chapter IX. Latin Text.

By the new law, however, a husband who has done this without any cause shall be compelled to surrender to his wife, even during marriage, out of his other property, an amount equal to the third part of the ante-nuptial donation which he made, but the marriage shall not be dissolved on this account.

END OF THE EXTRACT.

THE TEXT OF THE CODE FOLLOWS.

(3) The husband, also, is controlled by similar restrictions, for he shall not be permitted to repudiate his own wife, except for reasons which have been clearly designated; nor can she be driven away under any circumstances, unless he should find her to be an adulteress, a poisoner, a homicide, a kidnapper, a violator of sepulchres; or one who has stolen something from sacred buildings; or an accomplice of thieves; or one given to frequenting banquets where strange men are present, her husband either being ignorant of the fact or having withheld his consent; or where, without his permission, and without good

and reasonable cause, she has passed the night in some public resort, or frequented the circus, theatre, or the exhibitions of the arena, in those places in which they are usually conducted, in spite of his opposition; or if she has attempted to kill him by poison, by the sword, or by any other means; or where she is cognizant of any plots against Our government; or has been implicated in the crime of forgery or perjury; or he can prove that she has laid violent hands upon him. For, under these circumstances, We necessarily grant him the right of separation, and the power to establish the causes of divorce in accordance with the laws.

(4) If neither the husband nor the wife should observe these regulations, he or she shall be punished with the avenging penalty of this most provident law. For if a woman, in contempt of the law, should attempt to send a notice of repudiation, she shall forfeit her dowry and her ante-nuptial donation, and shall not have the power to marry again within five years, for it is just that, in the meantime, she should be forbidden marriage, of which she has shown herself unworthy.

If, however, she should marry in spite of this provision, she herself shall become infamous, and We are unwilling that her union shall be designated marriage, and, in addition to this, We grant authority to anyone to attack it who desires to do so. But if she should prove the case which she has stated, she shall then recover her dowry, and profit by her ante-nuptial donation; and We decree that she shall have the right to claim them by law, and We grant her permission to marry after the expiration of a year, in order that no doubt may arise with reference to her offspring.

(5) We order by the following just regulation that the husband, also, who can prove that his wife has attempted to commit unlawful acts, can claim not only the dowry but also the ante-nuptial donation, and that he can immediately take another wife, if he wishes. But if, on the other hand, he should merely desire to repudiate his wife, he must return the dowry, and lose the ante-nuptial donation.

(6) Where the crime of adultery or treason is alleged, the male and female slaves of both the husband and wife who have 'reached puberty should be subjected to torture for the purpose of ascertaining the cause of repudiation, by which the truth may the more readily be ascertained, or more clearly revealed, provided other sources of proof are lacking. We desire that the same evidence shall be admitted in the case of wounds having been inflicted by either of the parties (as has already been stated), since the truth of matters which take place in the household is not easily established by the testimony of strangers.

(7) If notice of repudiation is given and there are any children, either sons or daughters living, We order that whatever was obtained by the marriage shall be preserved for the benefit of the said sons or daughters, after the death of the person who received it; that is to say, if the father should rashly serve notice of repudiation, the antenuptial donation shall be preserved by the mother; if the mother

should do so, the dowry, on the death of the father, shall be transferred to the child, or children. Still, the father or mother will have the right to appoint as heir or heirs one, or all of the children, or to make a donation of his or her property to any one of them, in accordance with his or her choice. We do not grant the power to alienate or substitute any of the above-mentioned property. When, however, any of it is lacking, We order that it shall be made good, either by the heirs, or by those having it in their possession (provided the parties do not appoint any heirs, or the children who were appointed do not enter upon the estate) so that, in this way, the children may not suffer injury through the inconsiderate notice of repudiation.

(8) Where any agreements are made in opposition to Our present decree, We desire they shall have no validity, as being contrary

to law.

Given on the fifth of the Ides of January, during the Consulate of

Protogenes and Astorius, 449.

9. The Emperor Anastasius to Theodore, Prsetorian Prefect.

Where a marriage has been dissolved by common consent, rather than by the repudiation of the wife, and not on account of any cause included in the most wise Constitution of the Emperors Theodosius and Valentinian of Divine Memory, the woman shall not be required to wait for the expiration of the term of five years, but can contract a second marriage after the lapse of one year.

Given on the fifteenth of the Kalends of March, during the second Consulate of the Emperor Anastasius, 497.

Extract from Novel 117, Chapter X. Latin Text.

At the present time, a divorce of this kind cannot take place except where the husband and wife desire to live in chastity, and under such circumstances the dowry, as well as the ante-nuptial donation, shall be preserved for the benefit of the children. If, however, the parties subsequently contract another marriage, or are found to be living in debauchery, their property shall be delivered to their children, and they shall lose control of the same. In case there are no children, it shall be forfeited to the Treasury. Those who are guilty of such offences shall be subjected to the penalties prescribed by law.

10. The Emperor Justinian to Menna, Pr&torian Prefect.

We add the following to the causes specifically enumerated by reason of which repudiation can legally take place; namely, when a husband on account of natural impotence is unable to have coition with his wife for two consecutive years, from the beginning of the marriage, the wife, or her parents, can serve notice of repudiation upon him, without risk of losing the dowry; provided, however, that the ante-nuptial donation is preserved for the benefit of the husband.1

1 The causes authorizing divorce in the different States of the Union are almost innumerable. Few of them coincide, and with the exception of adultery, not a single one is applicable everywhere. In addition to adultery, they include

Given on the third of the Ides of December, during the second Consulate of Our Lord Justinian, 528.

Extract from Novel 22, Chapter VI. Latin Text.

At the present day, We decree that instead of the term of two years, that of three shall be reckoned from the time of cohabitation.

11. The Same to Hermogenes, Master of the Offices.

We order that where anyone has taken a wife with the consent of her parents, or, if she had no parents, actuated by true marital affection, even if no dotal instruments were drawn up, nor any dowry given, the marriage of the parties shall be considered valid, just as if it had been accompanied with dotal instruments; for marriages are not contracted by means of dowries but through mutual attachment.

(1) When anyone desires to separate from a woman whom he married without a dowry, he shall not be permitted to do so, unless some fault has been committed which is condemned by Our laws. If, however, he should reject her without her having been guilty of any fault, or he himself should commit such a fault against an innocent woman, he shall be compelled to give her the fourth part of his own property, in proportion to its amount; so that if he has an estate with four hundred pounds of gold, or more, he must pay his wife a sum not exceeding a hundred pounds of gold, and no more. If, however,

cruelty; insanity; failure to provide; ungovernable temper; desertion; procuring of marriage by fraud or duress; conviction of felony; previous divorce; sodomy; habitual drunkenness; notorious licentiousness of either party before marriage; pre-marital pregnancy; concealment or contraction of venereal disease; impotence, or sexual incapacity; existence of a former wife or husband; lewd conduct of wife; attack by one party upon the other with homicidal intent; disappearance without tidings for a specified term of years; marriage within the degrees prohibited by law; refusal of the wife to change her residence at the desire of the husband; violent behaviour rendering married life intolerable; exclusion of the wife from the home; public defamation; general disagreement; and gross neglect of duty, a provision of broad and ample meaning, which of itself covers a multitude of marital sins.

Statistics show that within the last quarter of a century more than a half of a million divorces have been obtained in this country. The so-called "enfranchisement" of the sex, which is incompatible with home life and domestic happiness, is mainly responsible for this condition, and by affording opportunities that would have appeared incredible to the preceding generation, has invested women with masculine qualities, enabled them to indulge their predilection for dress to the point of extravagance, and facilitated indulgence in dissipation of every kind, to the serious detriment of those distinguishing characteristics and attributes which constitute the glory of the sex, and are the chief source of its attractions. With the individuality of the husband, formerly the head of the family, have disappeared the reserve, the gentleness, the solicitude and the delicacy of the wife; instead of which we now have love of notoriety, aspiration to public office, and the corruption and turmoil of partisan politics. The physical nature of woman, utterly at variance with such pursuits, the care of the household, the duties of maternity, are forgotten amidst the homilies of the pulpit, the contests of the bar, the excitement of electioneering, and the din of political controversy. The absolute unfitness of the sex for these avocations is disclosed by the fact that no member of it has ever become eminent in any profession, and few have even attained to mediocrity.—ED.

his estate should amount to less than four hundred pounds of gold, then, a calculation having been made, the fourth part of his property shall be given to the wife, as the smallest amount to which she is entitled.

The same rule should be observed with reference to women who have not been endowed, and who have repudiated their husbands, without the fault of the latter, and contrary to law; or where they themselves have given cause for divorce to husbands who were innocent, so that, on both sides, justice and the punishment may be equally administered.

The benefit of the aforesaid share of the property shall be enjoyed by the husband or the wife where there are no children, and shall be disposed of by them in any way which they may desire. When there are children or descendants of the latter by the said marriage, the property shall in every respect be preserved by them, just as in the case of a dowry or a donation in consideration of marriage, as has been previously decided with reference to the same.

(2) We add to the causes of divorce of husbands and wives already enumerated by the laws, the following; namely, if the wife should by her own efforts produce an abortion; or if she should be so lascivious as to dare, for the sake of debauchery, to bathe with other men; or, while she is still married, attempt to take another husband. In cases of this kind, We decree that the law shall apply which treats of the guilt of both husband and wife, so, just as a dowry or a donation made in consideration of marriage is lost, in like manner, women who have not been endowed shall run the risk of losing the fourth part which, by the terms of this law, We have destined for husbands and wives.

The Actio de moribus, which was formerly inserted in ancient laws, but which was not often resorted to, is hereby absolutely abolished.

We decree that none of the former causes for divorce, which were requisite and set forth in ancient laws, except those which have been confirmed by the present enactment, and those which the latter has introduced, shall be valid.

Given on the twelfth of the Kalends of December, during the second Consulate of Our Lord, the Emperor Justinian, 528.

TITLE XVIII.

IN WHAT WAY THE DOWRY CAN BE RECOVERED WHEN THE MARRIAGE HAS BEEN DISSOLVED.

1. The Emperors Severus and Antoninus to Germilla.

After the dowry has been estimated, and an agreement or stipulation has been entered into with reference to the same, there is no doubt that if the property of which it is composed should be in existence at the time of the dissolution of the marriage, it should be restored to the wife; and any female slaves, together with their offspring,

which constitute part of the same, must also be returned by virtue of the action based on the stipulation.

Given on the third of the Ides of April, under the Consulate of Lateranus and Rufinus, 198.

2. The Same Emperors to Aquilia.

It is in accordance with the principle of the law that you think that your dowry should be restored to you by the Treasury, which confiscated the property of your father after his conviction. For although your father was the heir of your former husband, still this cannot derogate from your rights, as your father could neither exact nor receive your dowry without your consent.

Given on the day before the Nones of April, during the Consulate of Aper and Maximus, 208.

3. The Emperor Antoninus to Hostilia.

If, being ignorant of the condition of Eros, you married him and gave him a dowry, as a freeman, and he afterwards was decided to be a slave, you can recover your dowry out of his peculium, and anything else in addition which it appears that he owes you. Your children, however, being born of a free woman, but of a father whose status was uncertain, are understood to be illegitimate freeborn children.

Given on the third of the Kalends of September, during the Consulate of Lsetus and Cerealis, 216.

4. The Emperor Alexander to Apollonius.

The dowry provided by a father, where the woman dies in marriage while still under paternal control, should be returned to him.

Given on the eighteenth of the Kalends of September, during the Consulate of Fuscus and Dexter, 226.

5. The Emperors Valerian and Gallienus, and the Csesar Valerian, to Taurus.

If your wife lives among enemies, her brother cannot yet, as her heir, claim her dowry. If, however, she is dead, and he has a right to her estate, he can also legally recover her dowry, as this was set forth in the stipulation.

Given on the second of the Nones of May, during the Consulate of ^milianus and Bassus, 360.

6. The Emperors Diocletian and Maximian to Alexander and Nero.

If your mother has been deceived, and the dotal property has been appraised at its true value, what has been decided with reference to a defect of this kind in contracts is well known. Hence, if your mother has been misled as to the appraisement of the dowry by the fraudulent artifices of her husband, and you can prove this by conclusive evidence, before the Governor of the province, he can, by his authority, grant you an exception on the ground of bad faith for the purpose of obtaining the lands of which you are already in possession; and he

will know to what extent to perform the duties of his judicial office. If, however, after the truth has been ascertained, the husband should allege that he has been injured by the appraisement, he cannot be compelled to return more than the just price.

These rules apply when the property is in existence, but if it has been destroyed, the sum stated in the dotal instrument must be adhered to.

Given on the eleventh of the Kalends of November, during the Consulate of the above-mentioned Emperors.

7. The Same Emperors and Csesars to Erotius.

You are not prohibited from depriving your daughter of money, if she is under your control. Where, however, you have given her property as dowry, you cannot do this during the existence of the marriage, if she does not give her consent; nor, even after the marriage has been dissolved, can you claim the said property if she is unwilling for you to do so.

Given on the fifth of the Ides of February, under the Consulate of the Csesars.

8. The Same Emperors and Csesars to Sallustia.

The husband (even though, after a divorce, he may have had judgment rendered against him to the extent of his means) cannot refuse the payment of the balance of the dowry, if he should after wards become solvent, provided he has not already paid it in full. There is no doubt that his heirs can be sued for the entire amount; and hence you, without good cause, apprehend that you cannot bring suit against them, although they may be solvent.

Given on the thirteenth of the Kalends of April, during the Consulate of the Csesars.

9. The Same Emperors and Caesars to Martia.

You should sue the heirs of your husband in an action of dowry to recover what was given to him by way of dowry; but you have no right to take possession of the dotal property without the authority of a competent court, if your husband's heirs do not give their consent.

Given on the eighth of the Kalends of November, under the Consulate of the Csesars.

10. The Same Emperors and Csesars to Epigonus.

If you have given a dowry to the father-in-law of your daughter, although your son-in-law may have died while under his father's control, the latter must return the dowry to you, not merely to the extent of his son's peculium, but for the entire amount, if you bring suit against him with the consent of your daughter.

Given at Heraclea, on the seventh of the Ides of November, under the Consulate of the Csesars.

11. The Emperors Honorius and Theodosius to Marinianus, Praetorian Prefect.

When the husband dies during marriage, the dowry which is alleged to be given or promised out of the property of the wife shall be returned to her, and the heir of the deceased cannot claim for himself any of what the death of the husband causes to revert to his wife.

Given at Ravenna, on the Nones of December, during the Consulate of Honorius, Consul for the eighth time, and Theodosius, Consul for the third time, 409.

TITLE XIX. WHERE A DOWRY HAS BEEN PAID DURING MARRIAGE.

1. The Emperors Honorius and Theodosius to Marinianus, Prse-torian Prefect.

Where the dowry was illegally given by the husband to the wife, during marriage (which cannot stand, because it is considered a donation), and the wife dies, the property, together with the profits of the same from the day when the dowry was bestowed, must be delivered to the husband by her heirs.

The ownership of the same, however, vests in the children of the wife, and cannot be alienated by the husband, as this would be contrary to law.

Given on the fifth of the Nones of November, during the Consulate of Honorius, Consul for the eighth time, and Theodosius, Consul for the third time, 409.

TITLE XX.

NEITHER TRUSTEES NOR MANDATORS FOR DOWRIES SHALL BE APPOINTED.

1. The Emperors Gratian, Valentinian, and Theodosius to Cyne-gius, Praetorian Prefect.

No matter whether the law providing that a husband shall furnish a surety for the preservation of the dowry for his wife is derived from legal enactment, or from custom, We direct that it shall be abolished.

Given on the eighth of the Nones of September, during the Consulate of Eucherius and Syagrius, 381.

2. The Emperor Justinian to Julian, Prsetorian Prefect.

For the purpose of extending the scope of the preceding constitution by a general provision, We decree that no security or mandate with reference to a dowry shall be exacted either from a husband or his father, or from any of those who may have received it; for if the wife thought that she herself and her dowry could be entrusted to her husband's father, why should a surety or any other bondsman be

required, in order that reason for distrust might be introduced between the parties during their marriage?

Given on the tenth of the Kalends of August, during the fifth Consulate of Lampadius and Orestes, 530.

TITLE XXI. CONCERNING PROPERTY SURREPTITIOUSLY REMOVED.

1. The Emperor Alexander to Polydeuca.

It is with justice that you assert the right of set-off, for it is only equitable that you should not be obliged to pay what it is established that you owe before an answer has been made to your claim for money loaned; and there is all the more reason for this, because you allege that you are demanding property which you complain has been removed on account of divorce. Therefore, after you have been sued under the stipulation before a competent judge, you must prove to him that the property taken formed part of the dowry, and that it was

yours.

Given on the fifth of the Kalends of December, during the Consulate

of Alexander, Consul for the third time, and Dio, 230.

2. The Emperors Diocletian and Maximian, and the Csesars, to Serenus.

An action for the recovery of property which has been fraudulently removed is granted by the Perpetual Edict; where, in case of divorce, it has been taken by the husband from the wife, or by the wife from the husband. Still, while marriage exists, neither a penal action nor one involving infamy will lie against either of the parties, but an action in factum for indemnity is granted.

Given on the fifth of the Kalends of October, during the Consulate of the above-mentioned Emperors.

3. The Same Emperors and Csesars to Quartinus.

You are not prohibited from asserting ownership of the property which you allege your former wife removed on account of the divorce, by bringing the Actio perum amotarum against her successors, not, however, for the entire amount, but only for as much of it as has come into their hands.

Given on the fifth of the Nones of December, during the Consulate of the above-mentioned Emperors.

TITLE XXII.

THE ESTATE OF A HUSBAND CANNOT BE GIVEN TO A WOMAN INSTEAD OF HER DOWRY.

1. The Emperors Diocletian and Maximian to Apollinaria. It is prohibited by law for the estate of a deceased husband to be given to his widow instead of dowry. When, however, he died in-

solvent without leaving any heir, you will not be prevented from seeking indemnification in accordance with the provisions of the law, to the extent that the condition of the succession will permit.

Given on the fifth of the Nones of December, during the Consulate of the above-mentioned Emperors.

TITLE XXIII. CONCERNING DOTAL LANDS.

1. The Emperor Severus and Antoninus to Didia.

Where lands which have been appraised are given by way of dowry, and the choice of either the land or its value is reserved for the woman, the Lex Julia will, nevertheless, apply. Alienation is every act by means of which the ownership is transferred.

Given on the twelfth of the Kalends of March, during the Consulate of Antoninus, Consul for the fourth time, and Balbinus, 213.

2. The Emperor Gordian to Domitia.

Husbands who have received as dowry land held in common with another, and which has not been appraised, cannot bring suit in partition; although they themselves can have an action of this kind brought against them.

Given on the fifth of the Nones of October, during the Consulate of Gordian, Consul for the second time, and Pompeianus, 242.

TITLE XXIV.

WITH WHOM CHILDREN SHOULD RESIDE OR BE BROUGHT UP, WHEN A DIVORCE HAS TAKEN PLACE.

1. The Emperors Diocletian and Maximian, and the Csesars, to Celestina,

Although it has not been provided by any of Our Constitutions, or by any of those of Our Divine Ancestors, that a division of children should be made among parents according to sex, a competent judge must decide whether the children shall live with, and be brought up by their father, or their mother, after the marriage has been dissolved.

Given at Verona, on the seventh of the Kalends of July, during the Consulate of the Csesars.

Extract from Novel 117, Chapter VII. Latin Text.

Where the father has given cause for divorce, the children shall be brought up by the mother at his expense, if she has not contracted a second marriage. Where, on the other hand, the mother is to blame, then the children shall be reared by the father at the expense of the mother, if she is wealthy; for when he has not sufficient means to care for them, and she has, this duty devolves upon her. For, just as

children who are rich are compelled to provide their mother with a livelihood, if she is poor, so We decree that it is but just that children shall be supported by their mother. We order that what has been stated concerning a mother and children who are without means shall also be observed with reference to all ascending and descending relatives of both sexes.

TITLE XXV.

CONCERNING THE SUPPORT OP CHILDREN AND RELATIVES IN THE ASCENDING LINE.

1. The Emperor Antoninus Pius to Bassus.

It is but just that children should relieve the necessities of their relatives in the ascending line.

Without date, or designation of Consul.

2. The Divine Imperial Brothers to Celer.

A competent judge will order you to be supported by your son, if his means are such that he can provide you with food.

Given on the Ides of April, during the Consulate of the same Emperors.

3. The Same Emperors to Titiana.

If you prove before a competent judge that the child which you allege was born to you and Claudius is actually the son of the latter, he will order support to be furnished him in accordance with the means of his father. The same judge must decide whether the child shall be brought up by him.

Given at Rome, on the thirteenth of the Kalends of March, during the Consulate of Rusticus and Aquilinus.

4. The Emperors Severus and Antoninus to Sabinus.

If you have properly discharged the duties which you owe to your father, he will not refuse you his paternal affection. If he should not do this voluntarily, a competent judge, having been applied to, shall order him to support you in proportion to his means. If, however, he denies that he is your father, the same judge must, in the first place, investigate this point.

Given on the Nones of February, during the Consulate of Lateranus

and Rufinus, 198.

TITLE XXVI. CONCERNING CONCUBINES.

1. The Emperor Constantine to the People.

Permission is given to no one to have a concubine in his house during marriage.

Given on the eighteenth of the Kalends of July, during the Consulate of the Constantines, Father and Son, 321.

TITLE XXVII.

CONCERNING NATURAL CHILDREN AND THEIR MOTHERS, AND FOR WHAT REASONS THEY BECOME LEGITIMATE.

1. The Emperor Constantine to Gregorius.

It is decided that Senators, or Prefects, and persons in the cities who have been invested with the dignity of duumvirs, or with that of the priesthood (that is to say, such as are attached to the government of Phoenicia or Syria), shall be branded with infamy, and excluded from the protection of the Roman law, if they give their consent to place among the number of legitimate persons either the children of female slaves, or the daughter of a female slave; or a freedwoman, or her daughter; or a public actress, or her daughter; or the daughter of a tavern-keeper, or her daughter; or the offspring of anyone of low and degraded social position; or the daughter of a procurer, or of a gladiator; or that of a woman publicly engaged in business as a merchant; whether they do this by their, own authority or by that of one of Our Rescripts. In case a father should give anything to such children (whether he states that they are legitimate or natural), it shall be taken from them, and delivered to his lawful offspring, or to his brother, his sister, his father, or his mother. If anything should in any way be bestowed upon a wife of this kind, or even transferred to her by way of sale, We order that it shall be taken from her and given to those legally entitled to it.

We also order that those women with whose poison the minds of ruined persons are affected shall be subjected to torture; and if anything is demanded of them, or is said to have been entrusted to them, it shall be restored to those whom We have mentioned, or confiscated to Our Treasury. Therefore, whether the donation was made either by him who is alleged to be the father, or by someone else, or by an individual introduced for that purpose, or whether the property has been purchased by him or by another, or in the names of the children themselves, it shall immediately be restored to those whom We have designated; and if no such persons are in existence, it shall be legally claimed by the Treasury.

Where, however, such persons exist, and, with the property before them, decline to act, they having been excluded either by agreement or by oath, the Treasury shall take possession of all such said property without delay. When they remain silent, or are guilty of dissimulation, the time for offering a defence to the Treasury shall be limited to two months, within which period, if they do not assert their claim, or apply to the Governor of the province for that purpose, whatever an illegal generosity may have bestowed upon such children or wives shall be seized by Our Treasury, which shall demand any such property which has been donated or entrusted to them, under the severe penalty of quadruple damages.

Given at Carthage, on the twelfth of the Kalends of August, during the Consulate of Nepotian and Facundus, 336.

Extract from Novel 127, Chapter IV. Latin Text.

By a new law, however, such women can contract marriage with men of every description, even where they are incumbents of the aforesaid offices, provided dotal instruments are executed for this purpose by persons of illustrious rank. All others, with the exception of those who are invested with the highest dignities, can contract marriage through affection alone, provided the women with whom it is lawful for them to contract marriage are free.

2. The Emperors Arcadius and Honorius to Antemonius, Praetorian Prefect.

Where the mother, or any legitimate children, grandchildren, or great-grandchildren of either sex, to the number of one or more, are living, a father can only give or leave one-twelfth of his estate to his natural sons or daughters, or to their mother; or if only his concubine is living, he is authorized to give or bequeath to her one-twelfth of his estate. Anything which may be left beyond the amount prescribed by law shall go to his legitimate children, or to their mother, or to his other heirs.

Given on the Ides of November, under the Consulate of Stilicho, Consul for the second time, and Anthemius, 405.

Extract from Novel 89, Chapter XII. Latin Text.

At present, only natural and legitimate children are subject to this limitation. This is not the case with the mother.

3. The Emperors Theodosius and Valentinian to Apollonius, Prse-torian Prefect.

Where anyone has only natural children, whether he himself is free, or bound by the restrictions of the curia, and he prefers to transfer his natural children wholly or in part to the curia of the city from which he himself derived his origin, We grant him the power to do so, and to appoint them heirs to his entire estate. If, however, a person who is not the native of a city but of a village, or was born upon any tract of land whatsoever, should have natural children, and desires them to be benefited by the honorable distinction of the curia, as foresaid, and profit by their father's estate, they should be attached to the city within whose jurisdiction the village or farm, which was the birthplace of the father, is considered to be. But where the father claims as his birthplace either of the two Imperial Cities, he shall be entitled to place his children born out of wedlock among the decurions of either of them, provided the one which he may select has jurisdiction over the entire province; for it is disgraceful for anyone who boasts of being a native of a most Holy City not to be able to give his natural children the benefit of a residence in it; and this disposition the father can either make for the benefit of his natural children by his last will, or by a donation of any amount whatsoever.

And what We have desired to be observed with reference to the rank of decurion, whether it be conferred by will or by any other legal

document, We decree shall be observed as valid and established; so that if the children abstain from accepting the estate, or reject the donations, and wish to avoid the condition of decurion, and are afterwards found to be in possession of the estate of their father, either wholly or in part, they shall, by all means, be compelled to accept the position which their father desired them to occupy with his wealth, even though they may have alienated the property, and are unwilling to discharge the duties of the office.

Where, however, the father has a natural daughter or daughters, and disposes of her or them in marriage to the decurions of the city in which he was born, or upon which the village or farm where he derived his origin is dependent, or of that city which has jurisdiction over the entire province, these regulations shall, so far as the said children are concerned, apply, as in the case of a husband. For what difference does it make whether cities are benefited by means of sons or sons-in-law, or whether the law creates new decurions, or favors those already in existence?

Given on the twelfth of the Kalends of January, during the Consulate of Eudoxius and Dioscorus, 442.

4. The Emperors Leo and Anthemius to Armasius, Prsetorian Prefect.

As, not without good reason, We ascertain the desires of the dying from the opinions of the living, so, where anyone, having a natural son, desires to have him invested with the office of decurion for the purpose of making him legitimate, and rendering him a citizen of his birthplace, he shows unquestionably that, induced by paternal affection, he has selected him as the successor to his entire estate. A person of this kind cannot, by virtue of the Imperial Constitutions, be granted the power either of alienating or rejecting the estate or donation of his father, for the purpose of defrauding the curia; but he shall be compelled to accept the duties imposed upon him by the will of his father; and We do not suffer that, in any way whatsoever, the claims of calumnious persons shall be admitted, contrary to Our present regulations; but We order that Philocalus himself, the heir at law of the entire estate of his father, and attached to the curia of Our city, shall perform the duties which have been, or should be enjoined upon him; and that any children whom he may now have, or who may hereafter be born to him, shall likewise be subject to the condition imposed by his father.

We decree that this rule shall hereafter be observed in all cases which may hereafter occur, no matter in what Order or curia of any city.

Given at Constantinople, on the Kalends of January, during the Consulate of Jordanus and Severus, 470.

5. The Emperor Zeno to Sebastian, Prsetorian Prefect. Renewing the most Sacred Constitution of the Divine Constantine, who provided the Roman Empire with the revered faith of the Chris-

tians, which Constitution had reference to the taking as concubines of freeborn married women, and stated that any children born to them either before or after marriage should be considered legitimate, We order that if those who, before the promulgation of this law, had, without the ceremony of marriage, lived in concubinage with freeborn women, and had children of either sex by them; the latter shall not be considered legitimate, for the reason that their mothers were not their father's wives. If, however, they should desire to marry the women who were formerly their concubines, they can contract lawful matrimony with freeborn women of this description, as previously stated; and the children of both sexes begotten of the former union with the same women shall, immediately after the marriage with their mothers has been celebrated, become legitimate, and be under the control of their fathers, and shall succeed to the entire estates of the latter along with those who may afterwards be begotten during the said marriages, or alone; and, if no child should afterwards be born, they can claim their estates not only under the last will of their fathers, but also as heirs at law. And so far as any agreements which may have been entered into during marriage with reference to dowries or ante-nuptial donations, in which they themselves are interested are concerned, they shall, none the less, be entitled to the benefit of the same, either alone (if no other child has been begotten) or along with their brothers born to the same parents, in accordance with the provisions of the laws.

Those, however, who, up to the time of the promulgation of this most Sacred Decree, have had no issue by freeborn concubines, shall, by no means, enjoy the benefit of this law; for as they are permitted to unite themselves in matrimony with these women, when there are no free children or wives living, they can, by marrying said women, beget lawful offspring; and persons who have had issue by freeborn concubines, but have neglected to marry them after the promulgation of this law, must not presume to urgently demand that their children shall hereafter be considered legitimate.

Given on the tenth of the Kalends of March, during the Consulate of Basilius, Consul for the second time, and Armatius, 476.

6. The Emperor Anastasius to Sergius, Prsetoria/n Prefect.

We order that those who have no legitimate children living, and who at the present time are keeping women instead of wives, shall consider any issue born to them to be legitimate, and subject to their control; and that they can transfer to them their private property by their last wills, by donations, or by any other method recognized by law, if they should desire to do so.

We also decree that the said children shall be entitled to succeed to the estates of their fathers, and that neither the agnates nor cognates of the latter, nor anyone else, shall hereafter have the right .to raise any question or dispute, by availing themselves of the subtleties of the laws or constitutions, for the purpose of depriving them of the succession. Nevertheless, where anyone keeps a woman of this

kind as a wife, and dotal instruments have been executed, the same rule shall be observed with reference to his offspring, in order that, in no way, he may be deprived of acquiring his own patrimony by means of his children.

In addition to this, We decree that any children who have, by virtue of Imperial Rescripts, been arrogated by their fathers, shall enjoy the benefit and assistance of this Our most salutary law.

Given on the Kalends of April, during the Consulate of Anastasius, Consul for the fourth time, and Agapitus, 508.

7. The Emperor Justin to Marinus, Prsetorian Prefect.

We decree that the law of Anastasius, of Divine memory, which was promulgated with reference to natural children, shall only be valid in those cases which, up to this time, have come under the terms of the same law with reference to the marriages then existing, or which have subsequently been contracted; provided, however, that it shall not be held to benefit children born of a wicked or incestuous union. Moreover, We have decided, not without reason, that relief should be afforded to children of both sexes who, not the issue of an incestuous or wicked marriage, have, through the efforts of some woman, been arrogated or adopted by virtue of an Imperial Rescript, whether before the said law was promulgated, or afterwards, up to the present time; so that said adoption or arrogation may be valid, and no question may be raised alleging that what the parties have obtained was forbidden by some law; as mercy dictates that, if any doubt on this point should arise, it ought not to be entertained, for the reason that those who suffer from the faults of others are not to blame. Therefore, children of this kind, after arrogation or adoption, come under the control of their fathers, and are entitled to succeed to their estates, not only as heirs at law, but also under a will.

Moreover, all persons are hereby notified that lawful posterity can only be sought in legal marriage, just as if the above-mentioned Constitution had not been published, for hereafter no excuse can be alleged for the unlawful desires of libertinage. No encouragement shall be given for this purpose beyond what is provided by the ancient laws, nor shall dependence any longer be placed upon the aforesaid Constitution which Our pious judgment declares shall be repealed from this day; nor shall the pretext of arrogation or adoption be advanced, as these will no longer be tolerated; nor shall any subtleties or claims based upon Imperial Rescripts be made use of, nor any dependence be placed upon unlawful schemes; for it is extremely unworthy as well as wicked to demand protection for vices in order that persons may be permitted to indulge their wantonness, and claim for themselves, under color of law, the rights and name of father which are legally denied them.

Given on the fifth of the Ides of November, during the Consulate of Justinus and Euthericus, 519.

8. The Emperor Justinian to Menna, Prsetorian Prefect.

On the ground of humanity, We grant permission to the fathers of natural children, when they have no legitimate offspring, or their mother is living, to appoint their said natural child or children their heirs, not only to three-twelfths of their estates (which former laws sanctioned), but to half, that is to say, six-twelfths of the same. So that, although they have no claim as heirs at law to the estate of their natural father, permission is given to them to take by his last will as aforesaid six-twelfths of the same, if their natural father is willing for them to do so; provided, however, that the testator does not, under any circumstances, exceed the above-mentioned amount of six-twelfths, in making bequests to all his natural children and their mother.

We also grant the natural father free permission to bequeath his estate to the amount of six-twelfths, in legacies and trusts, as well as in dowries and donations to his children begotten before marriage.

These provisions only apply to wills, bequests, dowries, and donations to be given or made hereafter.

Given at Constantinople, on the Kalends of January, during the second Consulate of Our Lord, the Emperor Justinian, 528.

Extract from, Novel 89, Chapters XII, and XV. Latin Text.

A father who dies without leaving any children, or relatives in the ascending line, to whom he would be required to bequeath his estate, can either transfer all of it to his natural children by will, or can give it to them by a donation inter vivos. Where only relatives in the ascending line survive him, he is permitted, after leaving them the share to which they are legally entitled, to distribute the remainder among his natural children. If, however, he leaves no legitimate offspring, and is not survived by a lawful wife, and dies intestate, but has natural children by a concubine, who was united to him solely by undoubted affection, the said children shall succeed to two-twelfths of their father's estate, and their mother shall receive her legitimate share of the same, if she is living. For whether there are any surviving legitimate children or not, or whether there are other heirs, and the wife is living, it is necessary for natural children of this kind to be supported in accordance with the judgment of a good citizen. Hence such children are required to furnish the same service to their parents, if there is need of it; but those who are born of an unlawful connection are excluded from all benefits whatever.

9. The Same to Menna, Prsetorian Prefect.

We, very properly being of the opinion that the public welfare demands that the subjects of Our Empire should be governed by laws which are clear and free from all ambiguity, do promulgate the following decree, by which all doubt prevailing up to the present time having been removed, We establish it as certain that, whenever natural children are assigned to the curia of the domicile of their father, during the lifetime of the latter, or even after his death, they, in this manner, acquire a legitimate right to his estate; so that (as is mani-

festly entirely just), even though the said natural children may have previously attained to some illustrious dignity by which the condition of decurion cannot be effaced, they shall not be permitted to claim for themselves any rights to the estates of the ascendants or descendants of their said natural father, or of any of his agnates or cognates through their relationship to him; although they themselves, on account of the above-mentioned attachment to the curia, become the lawful heirs of their natural father.

These provisions apply to those who have already been assigned by their natural fathers to the condition of decurion, and are still living; and, in like manner, none of the legitimate descendants, ascendants, or collateral relatives can legally claim anything for themselves out of the estates of the said natural children. Where, however, a natural child of this kind, having subsequently been made the lawful heir of his father, whether he has children formerly born in lawful marriage or has other issue descended from him, they shall, by all means, be called to his succession without the execution of a will by the deceased, and the rule relating to the curia shall not apply; but if a fourth part of the estate should be due to the curia, none of the children of the deceased can be compelled to discharge the duties of decurion. The rule that any children which the said natural son may beget after he has been assigned to the curia, will undoubtedly be born decurions, and be compelled to discharge the duties of that office, must be observed.

(1) If, however, the decurion should die without leaving any children, and only the mother should survive, she will be entitled to the third part of his estate, and the curia, to whom the father has been attached shall have the other two-thirds. If, however, the mother of the deceased should not be living, others of her cognates, either of the descending or ascending lines, or in the collateral line, shall be called to her succession; and then whatever property came into the hands of the deceased through his natural father shall belong to the same curia. But where, after a natural son has been rendered a lawful heir, he has acquired anything from his mother, or from any other legitimate source, this shall go to the nearest maternal cognates of the deceased.

The following rule must, however, be observed; namely, whether the mother is living, or whether she died before her son, if anyone of the same family is ready to attach himself to the same curia,, he will be permitted to receive the property of the deceased which came into his hands from his father's estate, and he shall discharge the duties of decurion; and when this takes place, the mother of the deceased, if she is still living, shall not only be entitled to the third part of the property which her son has acquired from other sources than his father's estate, but she shall also receive all the property which she, as sole heir, is entitled to, or she shall share the same with her coheirs, if any there be.

(2) The rules which We have established with reference to the succession of a natural son who dies after having obtained the position

of decurion, not only shall apply to those who were assigned to the curia by their natural father, but also to such as have previously been assigned to it, if they are still living. Where, however, they have died before the promulgation of the present law, We do not include their succession in its provisions.

(3) And, since the curias of cities should, by all means, be favored, We order that the following shall be added to what has preceded it, namely, that it shall be lawful for fathers to attach their natural sons to the curise of their places of residence, not only where they have no lawful children living, but also where they have any sons or other descendants by a lawful marriage, and that by this means their natural children shall also become their lawful successors; provided, however, that they shall, by no means, be permitted to give or leave either by donation or by last will to a natural child any more than they may have given or left to a child born in lawful marriage, to whom the smallest share has been either donated or bequeathed.

Given on the Kalends of June, during the second Consulate of Our Lord Justinian, 528.

10. The Same to Demosthenes, Prsetorian Prefect.

Where anyone has lived for a time in the pleasant society of a free woman with whom marriage is not forbidden by the laws, and has children by her, without any dotal instruments having been drawn up, and afterwards, induced by the same affection, he marries her, and begets other children after the marriage, in order to prevent the latter, being legitimate and under his control, from claiming for themselves the entire estate of their father, thereby excluding their brothers, who were born before the marriage, from sharing in the estate, We decree that injustice of this kind shall not be tolerated. For as affection for the first offspring was instrumental in bringing about the marriage, and gave occasion to the birth of the more recent children, why is it not most inequitable for the offspring born after marriage to exclude the others, when the former should be grateful to their brothers through whose means they themselves have become legitimate, and have obtained the name and standing of children of this description? For it is not probable that the man who afterwards made a donation, or gave a dowry to a woman of this kind, did not from the beginning entertain for her sufficient affection to consider her worthy of being his wife. Wherefore, We decree that in such cases all children, whether they have been born before marriage or subsequently, shall be equal in every respect; that all those belonging to the father shall be held to be under his control; and that no distinction shall exist between the former and the latter, but that all who are the issue of the same marriage shall enjoy similar advantages.

Given at Chalcedon, on the fifteenth of the Kalends of October, during the Consulate of Decius, 529.

11. The Same to Julian, Prsetorian Prefect.

We formerly promulgated a law by which We ordered that if anyone should live with a woman without having for her the attachment

of a husband from the beginning (provided she was one with whom lawful marriage could be contracted), and he should have children by her, and afterwards, induced by affection, should marry her, and have other sons and daughters by her, not only the second children who were born after marriage shall be legitimate, and under paternal control, but also those previously born, who have afforded those who came into the world subsequently the opportunity of obtaining legitimacy.

Certain authorities have held that this law should be interpreted in such a way that if any children were born after the marriage, or even if there were some who had died, those born previously should not be considered legitimate, unless the children born under these different conditions should be living at the same time. We decree that excessive subtlety of this description shall be absolutely disregarded, as it is sufficient for a man to have sufficient affection after the birth of children to induce him to execute an instrument of marriage with the hope of having others. For even though what was hoped for may not have taken place, an accidental circumstance should, by no means, be conceded to derogate from the rights of children previously born. Where anyone has been living with a woman and causes her to become pregnant, and subsequently, while she is still in this condition, enters into a contract of marriage with her, and a boy or girl is born, a much better reason exists that this offspring should be the legal issue of the father, be brought under his control, and be his heir in case of his death, whether he dies testate or intestate. For it would be extremely absurd if children born after marriage should confer the benefit of legitimacy upon others previously born, and that a boy or girl of this kind could not secure this advantage for themselves.

And, generally speaking, with reference to the various opinions given in such cases, We decree, and include in a definite provision -that, always, under such circumstances, where any doubt exists as to the status of children, the time of their birth, and not that of their conception, should be taken into account. This We do in order to favor children by providing that the date of birth should be considered, except in those instances in which the welfare of infants demands that the time of conception should rather be noted.

Given on the fifteenth of the Kalends of April, during the fifth Consulate of Lampadius and Orestes, 530.

Extract from Novel 12, Chapter III. Latin Text.

This rule shall also apply where a father, previous to this union, had legitimate children by another wife from whom he has been legally separated, or where she is dead.

Extract from Novel 18, Last Chapter. Latin Text.

A new constitution, however, does not permit this rule to apply to the case of a female slave, unless where a man has no other children who are legitimate.

Extract from Novel 78, Chapter HI. Latin Text.

Another new constitution is considered generally to provide with regard to the children of a female slave that, by the sole fact of the bestowal of a dowry, she, as well as her offspring, will receive their freedom.

Extract from Novel 74- Latin Text.

Moreover, anyone who has no legitimate offspring, but only natural children the issue of a union of this description, can, by presenting a petition to the Emperor, render them legitimate, even without marriage, if the woman is already dead, or if she has left him, or remains concealed, or for any other reason is prevented from appearing, or where some impediment to matrimony exists, as for instance, the priesthood.

Extract from Novel 74, Chapter II. Latin Text.

Likewise, where a man dies without leaving legitimate offspring, and states in his will that he wishes his natural children to be his lawful heirs, he shall be permitted to do this, so that, after his death, the said children may petition the Emperor, and, after having produced the will, they can become the heirs through the indulgence of the sovereign and the law, provided they carry out the provisions of their father's will. This rule shall generally be observed. If, however, some of them desire to become legitimate, and others do not, the wishes of the first shall be granted, and the others shall remain in their condition of natural children.

Extract from Novel 13, Chapter II. Latin Text.

Where anyone who has natural children by a free woman capable of being his wife who states either in a public document or in one drawn up in his own hand and subscribed by three witnesses worthy of confidence, or says in his will or in any instrument, that such-and-such children are his, and does not use the term "natural," offspring of this kind shall be his lawful heirs; and if, to any one of the said children, he should make a statement in the manner above mentioned, it will be sufficient to confer the rights of legitimacy upon all others born of the same woman.

12. The Same-to John, Prsetorian Prefect.

A man, who had a legitimate son, had a natural grandson by the latter, and the question arose whether the name of grandson could legally be given to a child of this kind, for the grandfather desired to leave his entire estate to this grandson, his legitimate son, the father of the latter, having died; as it was only prohibited by the Sacred Constitutions that the entire inheritance, or such a part as 'he desired to leave them, should be left to natural children, and at .the same time their interest was limited to a certain amount.

A doubt of this kind gives rise to another, for what would be the case where a grandfather has either a legitimate grandson or a

natural grandson by a natural son? Hence, as in all ambiguous questions of this kind, no definite conclusion can be arrived at with reference to such persons, and by the introduction of natural offspring no legal right can arise; to the end that the necessity of leaving something to them may be provided for by the laws, they shall be permitted to bestow upon these descendants as much of their estates as they may desire (of course, where there is no legitimate issue living). For the Imperial Constitutions prohibited that as much should be left to natural children as their parents might desire to give them, because they considered that, by so doing, the debauchery of their fathers could be restrained.

With reference to grandchildren, however, the rule in the instance above mentioned should not be observed, where there is no legitimate offspring to offer an impediment. But where such offspring exists, We extend the provisions of the ancient constitutions, which have been established concerning natural sons, to grandsons, as well; but We decree that they shall only apply to those who can obtain a share in their grandfather's estate by virtue of his will, for We do not allow any of them to become his heirs at law.

We decree that they shall not only have the benefit of the estate of their natural paternal grandfather, but also those of their greatgrandfather, and of his cognates; if anyone should desire to apply this term to men of such degenerate character.

Given during the Kalends of November, during the fifth Consulate of Lampadius and Orestes, 530.

TITLE XXVIII. CONCERNING TESTAMENTARY GUARDIANSHIP.

1. The Emperor Severus and Antoninus to Sperata.

The person whom you state was appointed guardian for you by the will of your patroness is not liable to you in any action, if he did not interfere in the administration of the guardianship, for he was not legally appointed your guardian. Where, however, he, of his own accord, transacted your business, you can proceed against him in an action based on voluntary agency.

Given on the Kalends of August, during the Consulate of Asper and Maximus, 208.

2. The Emperor Antoninus to Sabinianus.

Although the guardian who was legally appointed for you by your father's will was living at the time when you became his heir, still, as another was also legally appointed for you by a codicil, both of-them will be your guardians under the will of the testator; unless your father revoked the testamentary appointment by designating the other mentioned in the codicil, for then the latter alone will be your guardian.

Given on the Ides of April, under the Consulate of the Aspers, 213.

3. The Emperor Alexander to Gordius and Others.

Where testamentary guardians are appointed for you, even though one of you may have attained his majority, that is to say, have passed the period of tutelage, your guardianship will not belong

to him.

Given on the fifth of the Kalends of January, during the Consulate of Maximus, Consul for the second time, and Julianus, 224.

4. The Same to Feliciana.

A mother cannot appoint guardians for her children unless she has made them her heirs. However, when she has not designated them as her heirs, it is customary for the testamentary guardian to be confirmed by the Governor. Where, however, none of these things take place, and the testamentary guardians have administered the affairs of the trust, they will be liable in an action of guardianship.

Given on the seventh of the Kalends of June, during the Consulate of Julian, Consul for the second time, and Crispinus, 225.

5. The Emperors Valerian and Gallienus to Daphna.

If the father of certain minors desired that a slave belonging to another, with reference to whom you petition, should become the guardian of said minors, and be free, another guardian previously appointed retaining his office in the meantime, it will be necessary for the said slave to be purchased and manumitted in the presence of the Governor, and be added to the administration as curator.

Given on the third of the Kalends of March, during the Consulate of Secularis and Donatus, 261.

6. The Emperors Diocletian and Maximian, and the Csesars, to Domna.

If your father legally appointed your uncle your guardian by will, and he was not excused, an action of guardianship can be brought against him, not only with reference to the affairs which he administered, but also on account of what he neglected (and which he Should have administered), before a competent judge, who shall order that satisfaction be given you in accordance with good faith.

Given on the Nones of April, during the Consulate of the CaBsars.

7. The Same, and the Csesars, to Triphena.

As you intend to proceed in an action against the guardian appointed for you by the will of your father, under whose control you were, a competent judge, having been applied to, will order anything due to you to be paid; for there is no doubt that a curator cannot be appointed by will.

Given on the seventeenth of the Kalends of May, during the Consulate of the Csesars.

8. The Emperors Theodosius and Valentinian to Florentius, Prse-torian Prefect.

It is legal for testamentary guardians to be appointed in the Greek language, so that those appointed in this manner may be

considered to have been appointed by the testator in terms authorized by law.

Given on the day before the Ides of September, during the Consulate of Theodosius, Consul for the fourteenth time, and Maximus, 439.

TITLE XXIX. CONCERNING THE CONFIRMATION OF A GUARDIAN.

1. The Emperor Alexander to Prisons.

Guardians appointed by the will of the mother have no reason to be excused, unless, after proper examination, they are found to have also been appointed by a decree in accordance with the will of the deceased.

Given on the third of the Nones of March, during the Consulate of Julian, Consul for the second time, and Crispinus, 225.

2. The Same to Valerius.

There is no doubt that a guardian cannot legally be appointed either by a letter, or by an imperfect testament, but the wishes of the father with reference to the appointment of guardians or curators, in cases of this kind, is accustomed to be observed by the judge who has jurisdiction of such matters. In accordance with which, you should be under no apprehension that the prescribed time has expired before you have been confirmed.

Given on the eighth of the Ides of August, during the Consulate of Alexander, Consul for the second time, and Marcellus, 217.

3. The Same to Sossianus, Prsetorian Prefect.

If (as you allege) your father illegally appointed testamentary guardians for the minor whom you have mentioned, and that, before they were confirmed, others were also appointed by someone who" had the right to do so, what was properly done by law cannot be revoked; but a competent judge, having been applied to, will decide, in accordance with the welfare of the minor, whether the guardians appointed by the will of the father should be appointed his curators.

Given on the third of the Ides of April, during the Consulate of Modestus and Probus, 229.

4. The Emperor Justinian to Julian, Prsetorian Prefect.

With a view to providing for the welfare of natural children, We grant permission to their fathers to appoint guardians for them, to insure the administration of such property as they may have given or bequeathed them in any manner whatsoever; provided this is done within the limits prescribed by Our laws, and the said guardians are confirmed by a competent judge, and then administer the affairs of the guardianship.

Given at Constantinople, on the fifteenth of the Kalends of April, during the Consulate of Lampadius and Orestes, 530.

TITLE XXX. CONCERNING LEGAL GUARDIANSHIPS.

1. The Emperors Diocletian and Maximian to Firmina.

The guardianship of males is not granted to maternal uncles by the Laws of the Twelve Tables, but this right is accorded to paternal uncles if they are not excused.

Given on the eighth of the Kalends of June, during the Consulate of Diocletian, Consul for the fourth time, and Maximian, Consul for the third time, 290.

Extract from Novel 118, Chapter V. Latin Text.

As the right of inheritance is conceded to relatives without taking agnation into account, so also is the burden and benefit of guardianship granted to relatives, provided they are of the male sex and of full age, and are not forbidden by any law to undertake it. Where, however, there are several relatives of the same degree, and they are called to the guardianship, We order that, when one or more of them is present in court, a choice shall be made. The guardianship should be committed to him or them who are the best qualified to attend to it; responsibility attaching to all called to its administration and their property being tacitly encumbered to their wards to secure the proper management of the trust.

2. The Same Emperors and Csesars to Asclepiodotus.

It is perfectly clear that the administration of guardianship legally belongs to the agnates of the minor, unless they have undergone a change of condition.

Given on the third of the Nones of April, during the Consulate of the same Emperors.

3. The Emperor Leo to Erythrius, Prsetorian Prefect.

The Lex Claudia having been abrogated by a Constitution of the Emperor Constantine, of Divine Memory, and the right of agnation remaining unimpaired by virtue of the authority of the ancient law, the blood-relatives, that is to say, the brother, as well as the paternal uncle and the other kindred legally authorized, are called to the guardianship of females.

Given on the Kalends of July, during the Consulate of Martian and Zeno, 469.

4. The Emperor Anastasius to Polycarp, Prsetorian Prefect.

An emancipated man who, by Our present law, in the succession to his brother's or sister's estate is ordered to take precedence of all other cognates and agnates of inferior or more distant relationship, shall also be called to the legal guardianship of his brothers and sisters, as well as to that of their children, although he has been liberated from the control of his father by emancipation, unless he can avail

himself of some other excuse provided by law; for We are not willing for him to claim that under this pretext he is released from the administration of the guardianship.

Given on the Kalends of April, under the Consulate of John and Paulinus, 498.

5. The Emperor Justinian to Demosthenes, Praetorian Prefect.

No brother, nor any other relative authorized by law, shall be called to the guardianship of either a freeborn person or a freedman before he has completed his twenty-fifth year; for each person must be liable only for his own administration, to prevent one from being burdened with the charges of another. For in this way both minors and adults will be subjected to proper guardianship, and the natural order will be reserved in every respect. How can it be tolerated that anyone should be a guardian, and at the same time subject to guardianship, or that the same individual should be a curator, while he himself is under tutelage? This is indeed an abominable confusion of names and things. All these matters are distinct, and testamentary or legal guardians or curators must be of such an age as to be competent for the management of their own affairs, and have all their property liable to hypothecation.

All those provisions which have been established by former laws with reference to the succession of freeborn persons, as well as freedmen, shall remain in full force, and shall not, in any way, be demin-ished in efficiency by the operation of the present law; and this particularly applies to the inheritances of freedmen, in order that they may not appear to lose the advantage of succession, for the reason that they do not assume the burden of guardianship.

Read seven times in the new Consistory of the Palace of Justinian.

Given on the third of the Kalends of November, during the fifth Consulate of Decius, 539.

TITLE XXXI.

CONCERNING THOSE WHO DEMAND GUARDIANS OR CURATORS.

1. The Emperor Antoninus to Chrysantha.

Notify the young man against whom you wish to appear to demand that curators be appointed for himself, with whom you can confer in accordance with the forms of law. If, however, he should not make this demand, you can apply to a competent judge, and he must perform his duty, and appoint curators.

Given on the second of the Nones of February, during the Consulate of Messala and Sabinus, 215.

2. The Same to Epaphroditus.

If your patron's children are of such an age that their affairs should be administered by guardians, be sure to appear before the

Praetor, and give him the names of those for whom guardians ought to be appointed; and if you fail to do so, you will run the risk of being punished for your neglect of duty to your patron.

Given on the Nones of July, during the Consulate of Messala and Sabinus, 215.

3. The Same to Atalanta.

Ask a competent judge to appoint a capable guardian for your children, who is a resident of the same province, instead of the one that is deceased, or has been banished for life, who, in accordance with his duty, will provide for their welfare.

Given on the fourth of the Ides of July, during the Consulate of Lsetus, Consul for the second time, and Cerealis, 216.

4. The Same to Domninus.

If there are no near relatives who can demand that guardians be appointed for the children of your debtor, you yourself can take measures for that purpose, in order that the said children may be legally defended.

Given on the third of the Ides of July, during the Consulate of Lsetus, Consul for the second time, and Cerealis, 216.

5. The Emperor Alexander to Fusciana.

A maternal aunt is not forbidden to petition for guardians to be appointed for the children of her brother.

Given on the fifth of the Kalends of July, during the Consulate of Maximus, Consul for the second time, and Julianus, 224.

6. The Same to Otacilia.

Maternal affection will suggest to you whom you should ask to have appointed guardians for your son, and it should also induce you to see that nothing but what is proper is done in the administration of the affairs of your minor child. However, the necessity of demanding curators for their sons is not imposed upon mothers, as minors who have arrived at puberty, but are under twenty-five years of age, can petition to have curators appointed for themselves, if their affairs

require it.

Given on the tenth of the Kalends of October, during the Consulate of Julian, Consul for the second time, and Crispinus, 225.

7. The Emperor Gordian to Dionysius.

Notify her, who was formerly your ward, to ask that a curator be appointed for herself, as she has not yet arrived at puberty, and you intend to give her in marriage. If she should neglect to do this, you will not be prevented from demanding a curator before a judge having jurisdiction of such matters, in order that you may be able the more readily to render an account of your administration.

Given on the sixth of the Ides of January, during the Consulship of Gordian and Aviola, 240.

8. The Emperors Diocletian and Maximian to Musicus.

As the positive duty of demanding guardians for their children is imposed upon mothers who are not to be held liable for fortuitous occurrences, and you state that an attorney who was appointed by the mother for the purpose of applying for a guardian for her minor son was killed by robbers, and the demand was postponed on account of this accident, it would be exceedingly unjust for the mother to be excluded from the succession of the estate of her son, as you assert that she was in no way responsible for the delay.

Given on the fifth of the Ides of March, during the Consulate of Tiberian and Dio, 291.

9. The Same Emperors to Asclepiodotus.

As a guardian cannot be appointed for a person who already has one, you will understand that the mother has not neglected her duty as a parent, in demanding the appointment, but that she cannot reasonably ask that a guardian be appointed where her son has already been legally provided with one.

Given at Byzantium, on the third of the Nones of April, under the Consulate of the same Emperors.

10. The Same Emperors and Csssars to Prisons.

You can formally petition for guardians to be appointed for the grandsons of your brother, if their mother does not perform her duty by making such an application.

Given on the day before the Kalends of May, during the Consulate of the Caesars.

11. The Emperor Zeno to Dioscorus, Prsetorian Prefect.

Mothers shall be subjected to the necessity of demanding the appointment of guardians for their natural children, just as in the case of those who are born in lawful wedlock, and neither ignorance of the law, nor its assumption for the purpose of evading the Imperial Constitutions, will profit them, if they should fail to apply for such an appointment.

Given at Constantinople, on the Kalends of September, during the Consulate of Zeno, Consul for the second time, 479.

TITLE XXXII.

WHERE A PETITION MUST BE MADE FOE THE APPOINTMENT OF GUARDIANS OR CURATORS.

1. The Emperor Antoninus to Aristobula.

The magistrates of the town from which your children derive their origin through their father, or where their property is situated, must see that guardians or curators are appointed for them at once, in accordance with the provisions of the law. If, however, your children do not possess any property in the province where they reside, and do

not derive their paternal origin therefrom, they must return to their own country, or the place where their patrimony is situated, and establish their residence there, and legal defenders will, then be appointed for them.

Given on the Kalends of October, during the Consulship of Lsetus, Consul for the second time, and Cerealis, 216.

TITLE XXXIII.

CONCERNING THE GUARDIANS AND CURATORS OF ILLUSTRIOUS OR DISTINGUISHED PERSONS.

1. The Emperors Valentinian, Theodosius, and Arcadius, to Proculus, Prefect of the City.

Let the Prefect of the City, after having associated with himself ten men taken from among the senators, together with the distinguished Praetor, who has jurisdiction over matters relating to guardianships, appoint illustrious persons of any rank whatsoever, who are properly qualified, guardians or curators; and let them, as judges and experts, freely make such appointments without liability for any damages which may result from their acts. And if any of those who are eligible are not equal to the management of the property of the wards, it is proper that several be designated for this purpose in accordance with the ancient laws; so that he whom the assembly determines to be most worthy of administering the guardianship of said wards may obtain the appointment by the sole decision of the Prefect; and after all the formalities have been complied with, the decree shall be issued by the Praetor. Therefore, all those who were present will be free from apprehension, and a just defence will be provided for the noble children and adults by the deliberation of these learned men.

It is, however, evident that We have established this regulation with reference to persons who have neither testamentary nor legal defenders to protect their lives, their age, or their property. Where men of this kind are appointed, and take no action for the defence of the rights of their wards, We prescribe by law that they can be held liable. We also decree that everything else which has been provided by former laws with reference to the cases of minors shall remain unaltered.

In the provinces governed by decurions, where guardians and curators are to be appointed for noble persons, they must give proper security, and, mindful of the risk they run, recognize that the property shall hereafter be liable to indemnify the said minors for any losses which they may sustain.

Given at Milan, on the third of the Kalends of January, under the Consulate of Timasius and Promotus, 389.

2. The Emperors Valentinian, Theodosius, and Arcadius to Aure-lian, Prefect of the City.

It is provided by this general law that decurions, occupied with the duties of their office, shall not be called to the guardianship of senators.

Given on the eighth of the Kalends of August, during the Consulate of Theodosius, Consul for the third time, and Abundantius, 393.

TITLE XXXIV.

WHO CAN APPOINT GUARDIANS AND CURATORS AND WHO CANNOT BE APPOINTED.

1. The Emperor Alexander to Amphibulus.

As you are at such an age that it is clear that your affairs should be administered by guardians or curators, for the reason that you allege that a dispute has arisen with reference to your freedom, it is not necessary for an obstacle to be placed in the way of the appointment of a curator, by whom your case may be defended, because in the meantime you are considered to be free.

Given on the Kalends of November, during the Consulate of Alexander, 223.

2. The Same to Arthemisia.

Although a husband should attend to the business of his wife, still, he cannot have a curator appointed for her.

Given on the Kalends of July, during the Consulate of Fuscus, Consul for the second time, and Dexter, 226.

3. The Emperor Philip- to Dolens.

The statement made to you that a curator should be appointed for one who is blind is false.

Given on the thirteenth of the Kalends of August, during the Consulate of Peregrinus and ^Emilianus, 245.

4. The Same to Emeritus.

A soldier engaged in the performance of military duties cannot be appointed a guardian or a curator, whether he is legally entitled to hold the office, or has been designated by will, or in any other way, even though he may consent. When, however, being unaware of his incapacity, he administers the office, he will be liable to an action on the ground of business transacted.

Given on the tenth of the Kalends of August, during the Consulate of Peregrinus and ^milianus, 245.

5. The Emperors Diocletian and Maximian, and the Ctesars, to .zEmiliana.

It is a certain rule of law that a person who is born in another state, and who does not have his domicile where he is named, cannot legally be appointed a guardian by the Governor of another province, or by the municipal magistrates of the same, when he is not subject to their jurisdiction. Hence, when he ceases to discharge the duties of the office wrongfully imposed upon him, this does not render him liable.

Given on the twelfth of the Kalends of May, during the Consulate of the above-mentioned Emperors.

6. The Same Emperors and Csesars to Leontius.

Apply to the Governor of the province for the decision of the question referred to, namely, that a mother refuses to demand guardians for her children; and if he ascertains that she has neglected her duty, the said magistrate will not be prevented from appointing guardians, or he can order the names of persons to be presented to him, so they can be confirmed by his decree.

Given on the second of the Kalends of May, during the Consulate of the above-mentioned Emperors.

7. The Same Emperors and Csesars to Rufus.

There is no doubt that a guardian or curator cannot legally be appointed by a Governor for a person of servile condition.

Given at Philippopolis, on the second of the Nones of July, during the Consulate of the same Emperors.

8. The Same Emperors and Csesars to Evelpistus.

There is no doubt that when a creditor is appointed the guardian of his debtors, he not only loses his right of action against them, but that also he can pay himself.

Given on the fifth of the Nones of June, during the Consulate of the Caesars.

Extract from Novel 72, Chapter II. Latin Text.

The debtor of a minor, or one to whom a minor is liable, or one who has the property of the latter in his possession, is prohibited from acting as his curator. If a curator should subsequently become the creditor of the minor, he cannot administer his affairs without the addition of another curator; for, in this instance, he who is appointed must either prove or swear in the beginning that the minor is indebted to him, or that his property is in his possession. If he remains silent, he shall lose his right of action. Likewise, if the debtor remains silent, he will not be entitled to rescind his contract, or pay the debt during the existence of the curatorship. If, however, the curator receives the assignment of an action against the minor, he will not be permitted to make use of it, even after the expiration of his term of office; nor can the person who assigned it to him bring suit, as he has violated the law, although the assignment may have been made for just reasons; but the minor will be pecuniarily benefited.

These provisions are valid, and apply to every curatorship, including those of spendthrifts and insane or demented persons, as well as to all others introduced by the laws.

9. The Same Emperors and Csesars to Maximian.

If you have been appointed guardian of your sister's children whose paternal uncle has already been made their guardian, and who has not

yet claimed any privilege of exemption, there is no doubt that, as the minors already have a guardian, the laws forbid another to be appointed, and that the former must discharge the duties of the administration ; and you will not be liable under the said appointment.

Given on the third of the Kalends of February, during the Consulate of the Caesars.

10. The Same Emperors and Csesars to the Soldier Florentinus.

There is no doubt in law that a curator cannot be added when the person in question already has one, unless where proper cause is shown; and one cannot be substituted instead of another, if the latter . has not previously been removed. Therefore, you will be liable for the injury sustained by the business of your wards in the meantime, as you should have appointed an agent to act in your stead at your own risk; since it is certain that a magistrate cannot appoint another curator to act for you during your absence.

Given on the third of the Kalends of April, during the Consulate of the Caesars.

11. The Emperor Constantius, and the C&sar Constantine, to Bassus, Prefect of the City.

It is decreed that, in all kinds of actions, no one can appear in court before he reaches the age of puberty, unless by a special decree, or where a curator has been appointed for the purpose of administering his patrimony, or conduct the litigation, in order that any disputes which may arise during the course of the proceedings may be terminated promptly in accordance with law.

Given at Aquileia, on the third of the Ides of October, during the Consulate of Constantius and Licinius, 312.

12. The Emperors Valentinian, Gratian, and Theodosius to Eutro-pius, Prsetorian Prefect.

A curator appointed for a minor cannot abandon a case after issue has been joined, or withdraw from the administration of the trust under the pretext that, after the suit was commenced, a special curator to conduct it was appointed by himself.

Given at Constantinople, on the fourth of the Kalends of October, during the Consulate of Eucherius and Syagrius, 381.

13. The Emperors Honorius and Theodosius to Monaxius, Urban Prefect.

In order that the authority of magistrates may not be exceeded, We give notice that no tenant of the Emperor, nor anyone else who has a right to protect himself by special privilege from such an appointment, shall be compelled to discharge the duties of guardianship.

Given during the Consulate of Honorius, Consul for the eighth time, and Theodosius, Consul for the third time, 409.

235

TITLE XXXV.

WHEN A WOMAN CAN DISCHARGE THE DUTIES OF GUARDIANSHIP.

1. The Emperor Alexander to Otacilia.

It is the privilege of men to administer the office of guardian, as duties of this kind cannot be undertaken by women on account of the weakness of their sex.

Given on the tenth of the Kalends of October, during the Consulate of Julian, Consul for the second time, and Crispinus, 409.

2. The Emperors Valentinian, Theodosius, and Arcadius to Tatian, Praetorian Prefect.

Mothers who, after the death of their husbands, petition for the guardianship of their children and the administration of their affairs, must, before they are confirmed in office in accordance with law, state solemnly in writing under oath that they will not marry again. No woman, however, shall be forced to accept an office of this kind, but shall be free to do so under the conditions which We have established; for if she prefers to contract a second marriage, she should not administer the guardianship. But in order that it may not be easy for her to violate her obligations, after she has once undertaken the legal guardianship, We order that the property of the husband who married her while she was administering it shall become encumbered, and be liable to the little children in order that none of their property may be lost by neglect or fraud.

We add to these provisions that if the woman is of full age, she shall have the right to demand the guardianship, when either a testamentary or a legal guardian is lacking, or when such a one is, by special privilege, excused from acting, or has been removed from office by reason of suspicion, or where he has been ascertained to be unfit to administer the property through weakness of either mind or body. If, however, the woman should refuse the guardianship, and prefer to marry again, then the Illustrious Prefect of the City, having summoned the Praetor who has jurisdiction of the appointment of guardians, or the judges who dispense justice in the provinces, shall, after investigation, direct defenders selected from another order to be appointed for the said minors.

Given at Milan, on the twelfth of the Kalends of February, during the Consulate of Valentinian, Consul for the fourth time, and Neo-terius, 373.

Extract from Novel,8, Chapter V. Latin Text. We permit the mother and grandmother, in their order, to assume the guardianship even before agnates, when either of them has declared in writing that she will not contract another marriage, and renounces the benefit of the Velleian Decree of the Senate. Testamentary guardians, however, will alone be preferred to the mother and grandmother, and will take precedence of legal and other guardians

that may be appointed, as We desire the intention of the deceased to be carried out. With the exception of these women, We forbid all others to discharge the duties of guardians.

Extract from Novel 91, Chapter II. Latin Text.

The oath is not required at present, but it is settled that where a woman contracts a second marriage, she can be removed from the guardianship, and that she shall be fully liable to the minors, so far as is provided by law.

Extract from Novel 94. Latin Text.

In addition to this, if indebtedness of any description exists between the mother and her children, she cannot be permitted to act as their guardian as long as the obligation remains unpaid. The mother, however, can administer the guardianship of her natural children, if she observes all the formalities which are prescribed in the case of legitimate children.

3. The Emperor Justinian to Julian, Praetorian Prefect.

If a father did not, in accordance with Our Constitution, appoint any testamentary guardian for his natural children, for the administration of the property which came to them from him, and their mother should desire to assume their guardianship, whether they are girls or boys, it shall be lawful for her to do so, as in the case of legitimate offspring, provided she previously swears before a competent judge that she will not contract a second marriage, but will preserve her chastity intact, and will renounce the benefit of the Velleian Decree of the Senate and every other legal privilege, and render her own property liable. Under such circumstances, We consent for her to be the guardian of her natural sons or daughters, and that all the provisions of the Imperial Constitutions which have reference to mothers, and their children born in lawful marriage, shall be observed by parents of this description. For if they can be appointed guardians of legitimate children who have a right to testamentary or legal guardians, and are themselves permitted to be the guardians of their children where others are lacking, there is much more reason, and it is much more humane in cases of this kind, where no legal guardianship can exist, for their mothers to be appointed.

Given at Constantinople, on the fifteenth of the Kalends of April, during the fifth Consulate of Lampadius and Orestes, 530.

TITLE XXXVI.

IN CASES WHERE A MINOR ALREADY HAS A GUARDIAN OR CURATOR, ANOTHER GUARDIAN OR CURATOR CAN BE

APPOINTED.

1. The Emperor Antoninus to Tyberian and Rufus.

When the guardian in whose stead you have been temporarily appointed, having been absent on public business, has performed the

service which was imposed upon him, and returned, you should entertain no doubt that the affairs of the female ward come within the scope of his duty and care, and you will act for the benefit of your own interest if you appear before the eminent Governor of the province, and request that the guardian be compelled to resume the administration of the trust.

Given on the eighth of the Kalends of August, during the Consulate of Antoninus, Consul for the fourth time, and Balbinus, 214.

2. The Emperor Alexander to Valentinian.

A competent judge could and should have appointed a curator instead of the one who has been excused, even though the minor may already have had other guardians. Moreover, although he may have been substituted, together with others, in the place of the guardian who has been excused, still, you will not be liable for the risk of the administration after the age of puberty.

Given on the fifth of the Ides of June, during the Consulate of Modestus and Probus, 229.

3. The Same to Hylas.

If the Governor of the province does not consider that you are sufficiently solvent, as the property of your wards is scattered, that is to say, situated in different places, or if you alone are not competent to undertake the administration of the same, he must decide whether it is necessary for other curators to be joined with you for the purpose of administering the guardianship.

Given on the eighth of the Ides of December, during the Consulate of Pompeianus and Pelignus, 232.

4. The Emperors Valerian and Gallienus to Euploius.

Although a guardian cannot be appointed for a person who already has one, still, another who is suitable can, under certain circumstances, be substituted by the decree of a competent court, instead of one who, having been suspected, has been convicted and removed; and also instead of a guardian who has been excused, or who is dead, or who has been relegated.

Given on the Ides of March, during the Consulate of Secularis, Consul for the second time, and Donatus, 261.

5. The Emperors Diocletian and Maximian, and the Csesars, to Zeno.

As it is usual to add new curators on account of the increase of the property of the wards, those last appointed are not released from responsibility for the administration of the guardianship. For certainly if he who has ceased to administer the trust was solvent at the time of its termination, it is clear that no liability will attach to you for any subsequent period.

Given on the third of the Kalends of April, during the Consulate of the Csesars. '

TITLE XXXVII.

CONCERNING THE ADMINISTRATION OF GUARDIANS AND CURATORS, AND OF MONEY BELONGING TO THE WARDS WHICH HAS EITHER BEEN LENT AT INTEREST, OR

DEPOSITED.

Extract from Novel 72, Chapter VI. Latin Text.

It has very recently been provided that money belonging to a ward shall not be lent at interest by his curator, and if the latter should do so, he must assume the risk of the loan, except when the entire property subject to his administration is movable, for then the curator is only compelled to lend a sum sufficient for the support of the minor, and for the preservation of his estate. Any property in excess of this must be carefully preserved, unless the guardian is compelled by necessity to lend it, as, for instance, for the purpose of paying the expenses , of his ward.

1. The Emperors Severus and Antoninus to Modestus.

It is without good reason that you hesitate to administer the property of the youth whose curator you are, on the ground that someone may think that you are liable for the time preceding your appointment; but do those things which you think should be done, and (as is the interest of all parties) see that the judge appointed to decide between you and the guardians discharges his duty as soon as possible.

Given on the twelfth of the Kalends of October, during the Consulate of Albinus and ^Emilianus, 207.

2. The Same Emperors to Timon and Elpidophorus.

You cannot bring suit against the curator of a youth with whom you have been appointed a colleague, as long as your common administration exists.

Given on the second of the Kalends of May, during the Consulate of Aper and Maximus, 208.

3. The Emperor Antoninus to Eumosus.

If it is proved before the judge who has jurisdiction of matters of this kind that the expenses incurred by you were necessary for your ward, and are due to just and honorable causes, he will direct that an account be taken of the same, even if a decree of the Praetor was not issued with reference to their payment; for whatever has been expended in good faith by guardians or curators is rather confirmed by justice than by the authority of others.

Given on the fourteenth of the Kalends of September, during the Consulate of the two Aspers, 213.

4. The Same to Procula.

Unless it is established that the money which was due (according to his accounts) from the paternal freedman who was the guardian

of your daughter was either deposited by him, or expended in the purchase of land, it must be paid over to the Prefect'of the City, and the guardian shall be punished by him in accordance with what is prescribed by law.

Given on the twelfth of the Kalends of October, during the Consulate of the Emperor Antoninus, Consul for the fourth time, and Balbinus, 214.

5. The Same to Rufinus.

It is in vain that the former guardians of the young men, whose curatorship you are administering, refuse to comply with the judgment rendered against them, as the money collected can be placed on deposit by order of the Governor.

Given on the Kalends of June, during the Consulate of Laetus, Consul for the second time, and Cerealis, 216.

6. The Emperor Alexander to Poconius.

It is not unknown that, where guardians or curators purposely institute vexatious actions in the name of their wards or minors, they must, on that account, be punished, lest they may think that they can fraudulently and with impunity bring actions of their own, under the pretext of acting in behalf of their wards, or minors.

Given on the sixth of the Ides of May, during the Consulate of Maximus, Consul for the second time, and ^lianus, 224.

7. The Same to Valerius.

You should administer the guardianship of your wards in such a way as not to sell the building which was left to them, as it was devised under the condition that it should not be alienated.

Given on the sixth of the Ides of July, during the Consulate of Maximus, Consul for the second time, and ^lianus, 224.

8. The Same to Aprilus.

If you are aware that you have been appointed curator and you do not administer the trust, an action cannot be brought against you, if there are other curators who have administered the curator-ship and are solvent. If, however, you did not know that you were appointed curator, no liability will attach to you, even if the others should be insolvent.

Given on the seventh of the Kalends of December, during the Consulate of Alexander, Consul for the third time, and Dio, 230.

9. The Same to Inclyta.

If you have curators, and they are unwilling to endow you with your own property, having appeared before the Governor of the province, you can have them compelled to provide a dowry suited to a person of honorable rank.

Given on the seventeenth of the Kalends of May, during the Consulate of Agricola and Clementinus, 231.

10. The Same to Rufina.

If you have suffered any injury through the negligence or fraud of the freedman who is your curator, the Governor of the province will take measures that the damage shall be made good by him who is responsible for it, and you should entertain no doubt that more severe measures will be taken, if fraud has been so openly committed that the freedman, after having been convicted of the crime, should be punished for having perpetrated it.

Given on the eleventh of the Kalends of August, during the Consulate of Agricola and Clementinus, 231.

11. The Emperor Gordian to Csecilius.

If the female ward, whose guardian you are, had a good case, and you did not take an appeal from the judgment rendered against her; or if, after the appeal, you did not comply with the formalities required by such a proceeding, you must indemnify your ward in an action on guardianship.

Given on the Ides of August, during the Consulate of Gordian and Aviola, 240.

12. The Same to Octaviana.

You should take action with reference to the matters which you allege have been fraudulently or negligently conducted by the guardian or curator of those to whom you have succeeded, provided you have reached lawful age, for you are not ignorant that the number of children is of very little advantage to women in the administration of their affairs, if they are under lawful age.

Given on the third of the Nones of October, during the Consulate of Gordian and Pompeianus, 242.

13. The Same to Longinus.

It is clear that guardians have a right to demand anything that is due to their wards, or placed on deposit, without being required to furnish security.

Given on the eighth of the Kalends of May, during the Consulate of Arian and Pappus, 244.

14. The Emperor Philip, and the Csssar Philip, to Clement.

It is certain that the accounts of the administration of a curator-ship cannot legally be demanded during the term of office of the curator, that is to say, before the minor has attained his twenty-fifth year.

Given on the day before the Nones of August, during the Consulate of Philip, Consul for the second time, and Titian, 246.

15. The Emperors Diocletian and Maximian to Licinius.

If you have not signed as surety, you need be under no apprehension of having suit brought against you as curator, on account of your having signed in that capacity, as you state that you have been released from liability by a decree of the Governor.

Given on the day before the Nones of March, during the Consulate of Diocletian, Consul for the third time, and Maximian, 287.

16. The Same Emperors and Czesars to Proculus.

Guardians have not the power to alienate the property of their wards without restriction, but they should, in making a sale, do so only for the advantage of the administration of such property as they are permitted to dispose of, and must furnish to the purchasers a just title to possession. Therefore, as guardians, under no circumstances, have authority to give away the property of those whose affairs they are managing, you will not be prevented from claiming the ownership of the property in question from those now in possession.

Given at Heraclea, on the tenth of the Kalends of May, during the Consulate.of the above-mentioned Emperors.

17. The Same Emperors and Caesars to Martialis.

Guardians need be under no apprehension with reference to their succession, as the execution of a will is not denied to those who have administered a guardianship, and they are not forbidden to give away any of their own property.

Given on the sixteenth of the Kalends of November, during the Consulate of the above-mentioned Emperors.

18. The Same Emperors and Csesars to Sotericus.

As you state that you have been appointed a guardian, notify the debtors of your female ward to make payment as is required by your office, for liability for the collection of the claims attaches to you. If they fail to satisfy their debts, you can have recourse to the Common Law by selling the pledges.

Given on the day before the Kalends of January, during the Consulate of the above-mentioned Emperors.

19. The Same Emperors and Csesars to Vindicianus.

When a guardian is appointed by a decree during his absence, and he is not excused according to law, after having been notified, he will remain liable for the administration of the guardianship.

Given on the third of the Ides of February, during the Consulate of the Csesars.

20. The Emperor Constantine to Euphemiana.

Minors are not prevented from claiming for themselves the property of their guardians or curators, on account of their liability for their administration, just as if the said property had been pledged to them.

The same rule applies where a guardian or curator is appointed, and does not administer the property of the minors.

Given on the seventh of the Kalends of April, during the Consulate of Volusianus and Annianus, 314.

21. The Same Emperors to Maximus, Praetorian Prefect.

The guardians of wards or minors are responsible for any loss of property, if the conditions upon which donations are dependent are neglected by them.

Given at Rome, on the third of the Kalends of February, under the Consulate of Sabinus and Rufinus, 316.

22. The Same to the People.

The law which requires guardians and curators to sell and reduce to money all gold, silver, jewels, clothing, and other valuable personal effects, as well as urban estates and slaves, buildings, baths, and warehouses and other property in the city, excepting rustic estates and slaves, is a rule which operates greatly to the disadvantage of minors. Hence, We order that no guardian or curator shall be permitted to sell any property of this description, unless required to do so by necessity, or by former laws, under which he is authorized to dispose of rustic estates and slaves, or pledge them or give them as a donation on account of marriage, or by way of dowry; this, of course, having been done after judicial investigation, proof of the case and rendition of a judgment, in order that there may be no room for fraud.

Therefore urban slaves, who- alone are familiar with the entire personal property, shall by all means always be retained as a part of the estate and household. For good slaves prevent the commission of fraud, and bad ones, where circumstances demand it, having been subjected to torture, can be compelled to reveal the truth; and all things shall be done in such a manner that the guardian cannot diminish, change, or suppress anything from the inventory. This is necessary with reference to clothing, pearls, gems, vases, and other personal property. In such cases it is better for slaves to die in the houses of their masters than to serve strangers. Responsibility for their flight should attach to the guardian, who has either caused discipline to be relaxed by his negligence, or has punished the slaves with undue severity, or subjected them to starvation or scourging, for they love their masters more than they hate them. This law is better than the ancient one, for, under the terms of the latter, the custody of slaves was relaxed, and the life of minors frequently endangered.

It is not permitted to sell the house in which the father died or the minor was brought up, for it would be sad enough not to see the statues of the family ancestors fastened therein, or to have them torn away. Therefore the house and all other immovable property shall remain as part of the patrimony of the minors, and no building of any kind originally belonging to the estate shall be destroyed, or allowed to fall into ruin through the fraudulent acts of the guardian. If, however, the father or any other person of whom the minor is the heir should leave a building in bad condition, the guardian, after having taken the evidence of several persons with reference to it, shall be compelled to repair it, so that the annual rent will bring more to the minors than the value of the same will lose by neglect.

Slaves, who are familiar with any trade, must contribute their labors to the profit of the minor, and the others who have no trade and cannot be of any use to their master, shall be supported partly by their labor, and partly by provisions forming part of the estate. This law has in view not only the interests of minors, as against their guardians, but also as against prodigal and dissolute women, who, for the most part, not only abandon the property of their children but also the lives of the latter to their new husbands.

It happened under the old law, by whose provisions the practice of loaning at interest money belonging to minors (on which the ancients based the entire force of patrimony), that this practice was no sooner temporary than it became permanent and established; and that the money loaned under such circumstances was often lost, and the inheritance of the minors reduced to nothing. Hence a sale of property made by a guardian without the authority of a decree shall be null and void, with the exception solely of such clothing as, being worn out by use, or, having been spoiled, can serve no purpose by being preserved. We do not forbid superfluous animals to be sold, even though they may be the property of minors.

Given on the Ides of March, during the Consulate of Constantine, Consul for the seventh time, and Constantine-Csesar, 326.

23. The Same to Felix.

If, through the negligence or fraud of his guardian or curator, the land of a minor should be lost because he was unwilling to pay the rent imposed upon said land by emphyteutical contract, the said guardian or curator shall be required to indemnify the minor out of his own property for any loss which he may have sustained.

Given at Constantinople, on the thirteenth of the Kalends of May, during the Consulate of Dalmatius and Xenophilus, 333.

24. The Emperors Arcadius and Honorius to Eutychianus, Prse-torian Prefect.

Guardians or curators, immediately after their appointment, must, in the presence of public officials, be careful to make a formal inventory of all the property and credits of the minors. They must also place all gold, silver, and other personal property which is not changed by lapse of time, that is found among the effects of the ward, in as safekeeping as possible, so that they can purchase suitable lands with the proceeds of said property; or if none can be found (as is usual) they can, in compliance with the terms of the ancient law, provide for the increase of said property by means of loans at interest, the collection of which is at the risk of the guardian.

Given at Constantinople, on the seventh of the Kalends of March, during the Consulate of Arcadius, Consul for the fourth time, and Honorius, Consul for the third time, 396.

25. The Emperor Justinian to John, Prsetorian Prefect. We order that the debtors of wards or minors shall be permitted to make payment to them through the medium of their guardians and

curators, who have previously given proper security, provided that this has been done by virtue of a judicial decision without any loss. After this has taken place, and the judge has rendered his decision, and the debtor has discharged the obligation, he shall then enjoy perfect security, and no one shall subsequently be subjected to annoyance on this account; for whatever has been done properly and in accordance with law in the beginning should not be revived in any event whatsoever.

We do not, however, extend the operation of this law to rents, income, or anything else of this kind to which the ward or the minor may be entitled; but if a foreign debtor should desire to make payment and release himself from liability arising from a loan at interest, or from any other such obligation, he can do so, for then We order that the above formalities shall be observed.

Given at Constantinople, on the tenth of the Kalends of March, after the fifth Consulate of Lampadius and Orestes, 531.

26. The Same to John, Prsetorian Prefect.

A certain woman, having drawn up her will, passed over her son, and the latter became the guardian or curator of his brother, or of a stranger who had been appointed heir by the mother of the guardian or curator. In the present instance, it is perfectly plain that the guardian or curator occupies a dangerous position; for whether he refuses his authority or consent for the ward or minor to enter upon the estate, lest by doing so his rights may be prejudiced (for if he does, he runs the imminent risk of an action of guardianship on the ground of voluntary agency being brought against him by either the ward or the minor to indemnify him for loss suffered through his delay), or whether he, being alarmed by apprehensions of this kind, gives his consent, he still runs a risk, as by acquiescence he loses his rights, for he appears to have confirmed the will of his mother, which he thought should be attacked.

In addition to this, many other cases arise in which a guardian or curator may be apprehensive of prejudicing his interests, as, for instance, where hypothecation and various other matters are involved.

We find that it has been generally laid down that all rights of action to which a guardian or curator is liable on account of his conduct in office should be assigned against the former ward or minor, after the guardian or curator has relinquished his trust. Induced by this excellent example, We desire to remove the fear of a guardian or curator in all other cases also, in which he may apprehend that his rights will in some manner be prejudiced; therefore We grant him the power to administer the affairs of his wards or minors with the greatest confidence, being aware that this Our law preserved for him his rights unimpaired, and that he will suffer no loss through giving his authority or consent under such circumstances.

Given at Constantinople, on the tenth of the Kalends of September, after the fifth Consulship of Lampadius and Orestes, 531.

27. The Same to John, Prsetorian Prefect.

We extend the scope of the Constitution that We have recently promulgated, which has reference to payments to be made in the case of the contracts of minors, whether they relate to rents, income, or other similar sources, as well as to interest. It is, however, only applicable to interest recently due, and not to that accrued for several years, the total of which does not exceed the sum of a hundred solidi.

Given at Constantinople on the tenth of the Kalends of November, after the fifth Consulate of Lampadius and Orestes, 531.

28. The Same to John, Prsetorian Prefect.

We decree that no guardian or curator of a ward, a minor, a madman, or any other person for whom curators are appointed under the ancient laws, as well as under Our Laws and Constitutions, shall refuse to undertake the defence of such a person which he has agreed to conduct, but that he shall defend all those above mentioned from the beginning of the suit, in every way authorized by law, and shall prepare their cases in a proper manner, being well aware that this is a necessary duty of his guardianship or curatorship. If, however, he should refuse to do so, or delay to act, he can not only be removed on the ground of suspicion, and be considered infamous, but he shall also be compelled to make good out of his own property all losses which the persons aforesaid may sustain through his refusal to undertake their defence.

(1) Where, however, anyone, after having been notified that proceedings have been instituted against him, furnishes the ordinary security required in proceedings of this kind, either after issue has been joined in which he has appeared by himself and not by an attorney, or if he should become demented or insane, We order that he shall at once have a curator appointed for him by a competent court, through the care and foresight of the judge before whom the action is pending, as well as through that of the cognates and other relatives of the party in question, and even through the agency of the plaintiff, if he should desire this to be done, so that the suit brought by him may not be too greatly prolonged, and the curator who has been appointed may be required to conduct the defence, and attend to the other matters growing out of the action.

(2) Those also (whether they be mothers or any other persons) who, at their own risk, have asked that guardians and curators of their own property be appointed, should compel the individuals whom they have designated as guardians or curators to prepare to undertake the defence of the parties whom they represent. If they should be unwilling to do this, and, on account of their refusal, should be removed from the guardianship or curatorship, We require the persons aforesaid to designate other guardians or curators for the administration of those matters for which guardians or curators are appointed, who will declare openly that they will conduct the defence. Lest such persons may be abandoned without proper protection, or the rights of the parties interested may remain too long without being

decided, We decree that immediately, that is to say, after the refusal of those who were designated to undertake the defence, in cases (as has already been stated) when this can be done, the appointment of other guardians and curators shall be made, the cognates, other relatives, connections by marriage, creditors, and all other persons who are interested being present, and advising those who, according to the laws, have a right to appoint guardians or curators.

(3) In this instance, wishing to state and define more clearly what kind of a defence should be conducted, lest guardians or curators may think that too heavy a burden is imposed upon them, We decree that they shall make such a defence as does not require security to be furnished with a view to the termination of the action; but only that they will proceed in behalf of the ward or minor or any other person whom they represent, in conformity with the provisions of the laws, and by the authority of this enactment, they are granted permission to give the property subject to their administration as security for the lawsuit, without any decree.

(4) Desiring to remove all doubt with reference to the defence of wards, minors, and other persons, We order that guardians and curators shall not be appointed, unless they first solemnly declare that every step for the administration of the property of those entrusted to their care will be taken by them, not only in the conduct of their affairs, but also in whatever relates to furnishing security for the same. They must also state in plain terms that they will conduct the defence of their wards and minors, and the other persons previously mentioned, without any delay whatever, as they are required to do.

(5) In order to leave no doubt on this point, We add to these provisions that all guardians and curators shall be permitted to sell at a just price, and without any decree of court, all crops of every description, that is to say, wine, oil, and grain, whether these are obtained from the rents of land, or have been derived from property of the persons under their control, at the price at which they are worth at the time and place of the sale, and any money which may be collected from the sale of said crops shall be administered along with the other property of the said wards, minors, or other persons.

Given at Constantinople, on the twelfth of the Kalends of November, after the fifth Consulate of Lampadius and Orestes, 531.

TITLE XXXVIII.

CONCERNING THE LIABILITIES OF GUARDIANS AND CURATORS.

1. The Emperor Alexander to Quantus.

Freedmen who are appointed guardians on account of their knowledge of the circumstances of their wards, although they alone may not be invested with the power of administering the property of the said wards or minors on account of their poverty, are, nevertheless,

all liable, whether they conceal from their fellow-guardians or curators those things which they ought to know, as being connected with the welfare of their wards, or whether they are guilty of fraud, either alone or in complicity with others, or whether they should be regarded as suspicious, or whether they fail to discharge the duties of their office, or do not manifest the respect which they should do.

Given on the ninth of the Kalends of February, during the Consulate of Alexander, Consul for the second time, and Marcellus, 227.

2. The Same to Saturus.

Personal liability for the administration of guardians who transact the affairs of wards in one province does not extend to those who administer the guardianship in another.

Given on the Nones of July, during the Consulate of Alexander, Consul for the second time, and Marcellus, 227.

3. The Emperor Philip and the Csesar Philip to Graticm..

If the property belonging to your ward, which was deposited in a warehouse and which you should have sold, has been consumed by fire in your lodging, as you allege, you assert without good reason that you should not bear the loss resulting from your negligence or inactivity, but that it should be sustained by your ward.

Given on the third of the Kalends of April, during the Consulate of Philip and Titian, 246.

4. The Same Emperor and Caesar to Florus.

It has frequently been stated in rescripts that guardians and curators are not responsible for accidental occurrences which could not be provided against.

Given on the twelfth of the Kalends of September, during the Consulate of Philip and Titian, 246.

5. The Emperors Diocletian and Maximian to Severus.

If you have been appointed guardian on petition, or by will, and have not learned of your appointment, not because of negligence, but through excusable ignorance, and you establish this fact by clear proofs, you will not be liable for the administration of the guardianship during the time you were ignorant that it had been conferred upon you.

Given on the third of the Ides of September, during the Consulate of Diocletian, Consul for the fourth time, and Maximian, Consul for the third time, 290.

6. The Same Emperors and Csesars to Epictetus.

It is reasonable that a guardian should not be responsible for the administration of the guardianship, for any time following the termination of the same.

Given on the fifth of the Kalends of September, during the Consulate of the Csesars.

TITLE XXXIX.

WHEN MINORS CAN SUE OB BE SUED ON ACCOUNT OP THE ACTS OF THEIR GUARDIANS OR CURATORS.

1. The Emperor Antoninus to Septimius.

If Juliana, against whose curators a decision has been rendered in your favor, has passed her twenty-fifth year, a praetorian action to enforce judgment can be brought by you against her, and her property, for it has frequently been decided that guardians and curators cannot be sued on account of their administration of the affairs of wards or minors after the termination of their office.

Given at Rome on the eighth of the Kalends of July, under the Consulate of Antoninus, Consul for the fourth time, and Balbinus, 214.

2. The Emperor Alexander to Sorarchus.

Although your guardians, when they lent your money, made stipulations in their own names, you will be entitled to an equitable action.

3. The Emperor Gordian to Prudentianus.

If the money lent in the name of the minor to the guardian or curator has been employed for the benefit of the property of the former, it is only reasonable that a personal action should be granted against the said minor.

Given on the Nones of September, during the Consulate of Gordian and Aviola, 240.

4. The Emperors Diocletian and Maximian, and the Csesars, to Maximiana.

If those who have been appointed your guardians or curators while you were under age should afterwards continue to administer your affairs, and lease your lands, sue them in accordance with the forms of the law. An equitable action based on their contracts can be demanded by you against the heirs of the lessee.

Given on the third of the Nones of March, under the Consulate of the above-mentioned Emperors.

5. The Same Emperors and Csesars to Onesima.

A right of action cannot be transferred by a guardian to his ward unless for certain reasons.

Given on the Ides of December, during the Consulate of the Csesars.

TITLE XL.

WHERE THERE ARE SEVERAL GUARDIANS OR CURATORS,

ALL OR ONE OF THEM CAN SUE OR BE SUED IN THE

NAME OF THE MINOR.

1. The Emperor Antonins to the Soldier Cassius.

You should not be ignorant that a case can be defended by one of the guardians or curators of a minor, when the others refuse to undertake the defence.

Given on the Nones of November, during the Consulate of Mes-sala and Sabinus, 215.

2. The Emperor Constantine, and the Csesar Licinius, to Sym-machus.

If liability for the administration has been divided among guardians by provinces, it is settled that those only can sue and be sued who are discharging the duties of the guardianship and curatorship in each province, to prevent the guardians of minors in one province from being brought into court in another.

Given on the day before the Nones of February, during the Consulship of Constantine and Licinius, 319.

TITLE XLI.

NEITHER A GUARDIAN NOR A CURATOR SHALL ACT AS A COLLECTOR OF TAXES.

1. The Emperor Antoninus to Sextus.

A competent judge is well aware that those who are conducting the affairs either of the guardianship or curatorship of wards or minors, and have not yet rendered the account of their administration, should not be permitted to act as collectors of taxes. But although you accepted an office of this kind contrary to law, as you have voluntarily appeared before me, you will not be guilty of the crime of deceit, if you satisfy the Treasury as well as your wards. If, however, being already liable to the Treasury on this account, you state that you have subsequently been appointed a guardian, you can be released from liability for the guardianship.

Given at Rome on the eighth of the Kalends of August, during the Consulate of Antoninus, Consul for the fourth time, and Balbinus, 214.

TITLE XLII.

CONCERNING THE GUARDIAN OR CURATOR WHO DOES NOT FURNISH SECURITY.

1. The Emperors Valerian and Gallienus to Titus and Flavianus.

If you have not yet reached lawful age, demand security from those who you state have been appointed your curators by your adversary while he was performing the functions of a magistrate, and who are not solvent, for they should be prevented from administering your affairs, unless they provide for your security by means of a bond.

Given on the Nones of July, during the Consulate of ^milianus and Bassus, 260.

2. The Same Emperors, and the Ctesar Valerian, to Euploius.

Application having been made to the Governor of the province, he will order that if the remaining guardian does not furnish secu-

rity in accordance with his order and the requirements of the law, he shall be removed from office if, without being branded with infamy, he did this on account of poverty; but if he has acted fraudulently he will be considered infamous, and the Governor shall order other suitable guardians to be substituted in the place of those who are deceased, especially as you allege that the patrimony of the ward has been increased by the addition of another estate. The guardians who have been appointed must demand an account of the guardianship from the heirs of those who you say have died.

Given on the Ides of May, during the Consulate of Secullaris and Donatus, 261.

3. The Emperors Diocletian and Maximian to Stratonicus.

There is no doubt that guardians who have not been appointed by will have no authority to administer property unless the guardianship is protected by security previously furnished. Therefore, where a guardian who has not given security for his administration is sued, the judgment rendered against him cannot affect your rights, nor can the business which he has transacted be considered as possessing any validity. Hence you will in vain apply for the relief of complete restitution, when whatever has been done by him is void in law.

Given at Nicomedia, on the eighteenth of the Kalends of January, during the Consulate of Diocletian, Consul for the third time, and Maximian, 287.

4. The Same Emperors and Csesars to Tertullus.

The condition of all guardians is not the same. For example, where a testamentary guardian has been confirmed by a Governor, or one is appointed after investigation, it is clear that he is not required to give security for the preservation of the property of his ward; still, it has long been the practice that where several guardians have been appointed after investigation, and one of them has, in accordance with the terms of the Edict, furnished security for the preservation of the property of his ward, he shall be preferred to the others in the administration of the guardianship.

Given at Nicomedia, on the Ides of December, during the Consulate of the Caesars.

5. The Emperors Constantine and Maximian to the Csesars Sev-erus and Maximus.

A guardian who is obliged to furnish security, but has not done so, cannot in any manner alienate any of the property of his ward. But it is perfectly evident that, after he has been chosen for the administration of the guardianship, he can demand possession of the property in the name of his ward, and that he should perform any other acts which are necessary to be done at the time.

Given on the eleventh of the Kalends of January, during the Consulate of Constantius and Maximian, 305.

TITLE XLIII. CONCERNING SUSPECTED GUARDIANS AND CURATORS.

1. The Emperor Antoninus to Domitia.

You can cause your freedman, who is the guardian of your son, to be declared liable to suspicion, if you think that he has fraudulently administered the property of his ward, provided his office has not been terminated by the arrival of the ward at the age of puberty; for if he has ceased to be a guardian by law, an action of guardianship should be brought against him.

Given at Rome on the Ides of August, during the Consulate of the two Aspers, 213.

2. The Same to Longinus.

Where, through the fault of curators, the transfer of their trust to them is delayed, they become liable. If, however, you think that this delay has been caused by fraud, demand that they be declared suspicious, and you can have others appointed in their stead.

Given on the Ides of January, during the Consulate of Lsetus, Consul for the second time, and Cerealis, 216.

3. The Emperor Alexander to Fortunata.

The Governor of the province will, by the employment of more severe measures, compel the guardians of your children to discharge the duties of their administration. If, however, they persist in the same obstinacy, you will not be prevented from asking that they be declared suspicious, in order that others may be appointed in their stead.

Given on the Ides of January, during the Consulate of Alexander, Consul for the third time, and Dio, 230.

4. The Same Emperor to Thalida.

You can demand that the guardian who has been appointed by the will of your father be declared suspicious, if you think that he has committed fraud while acting in that capacity.

Given on the eighth of the Kalends of January, during the Consulate of Maximus, Consul for the second time, and Paternus, 234.

5. The Same to Asclepias.

In applying for the removal of guardians or curators on the ground of suspicion, it is necessary in the first place to carefully consider not only the amount of their property, but whether anything has been done by them either negligently or fraudulently.

Given on the sixth of the Kalends of January, during the Consulate of Maximus, Consul for the second time, and Paternus, 234.

6. The Emperor Gordian to Felix.

You are performing the duty required by affection when you attempt to protect the children of your brother, as blood relationship

demands. Therefore, if their guardians or curators should not properly administer their affairs, and, having demanded that they be declared suspicious, you proved that this is the case, you can easily have others appointed in their stead. If, however, they have committed no fraudulent act, but are so poor that the property of the children of your brother will be endangered by their administration of the same, the Governor of the province must decide whether a curator, who is solvent, should be added to them. The right to demand their removal is not restricted to their ascendants of either sex, but is also enjoyed by their cognates, as well as strangers and connections by marriage, and even by him who has the administration of the property, if he is not under the age of puberty; which step must be approved by his cognates of good reputation.

Given on the fifth of the Ides of November, during the Consulate of Pius and Pontianus, 239.

7. The Same to Gorgonia.

The Governor of the province shall order him whom you accuse of being a suspicious guardian or curator to abstain from the administration of all your property during the hearing of the case, and until it has been terminated. In the meantime, another may be appointed in his stead for the management of the property.

Given on the seventh of the Kalends of March, during the Consulate of Sabinus, Consul for the second time, and Venustus, 341.

8. The Emperor Philip and the C&sar Philip to Proculus.

If you have not made application for your fellow-guardian to be declared suspicious, and be removed from the administration of the property of your ward, the demand that you now make for him to transfer the guardianship to you in the name of said ward, can, by no means, be admitted.

Given on the fourteenth of the Kalends of November, during the Consulate of Peregrinus and ^milianus, 245.

9. The Emperors Diocletian and Maxvmian to Hammianus.

It is clear that guardians who have been declared suspicious on account of fraud committed by them, and not those who have been removed on account of negligence, become infamous.

Given on the eighth of the Kalends of May, during the Consulate of the Caesars.

TITLE XLIV.

CONCERNING A GUARDIAN OR CURATOR APPOINTED TO CONDUCT LITIGATION.

1. The Emperor Antoninus to Miltiades.

If you have any action to bring against your wards, you can bring it, provided your fellow-guardians appear and defend the case; and

if you have no fellow-guardians, curators should be appointed for the purpose of defence in litigation of this kind.

Given on the thirteenth of the Kalends of August, during the Consulate of Antoninus, Consul for the fourth time, and Balbinus, 214.

2. The Emperor Alexander to Evarestus.

The judge having jurisdiction of such matters shall decide whether you are entitled to an action for the recovery of the land belonging to your father's estate. You should, however, take into consideration your duty as guardian (which office you say you hold), in order that, if eviction should take place in consequence of the proceedings, you will not subject your ward, as the heir, to the payment of a larger price than was given by the other party, if you undertake the defence, and you can either set it off against your accounts, or you can bring a counter action of guardianship.

Your rights, if you have any, will not be prejudiced under these circumstances; and curators can be appointed for the ward for the purpose of defending the case, which should be brought against you as claimant of the property.

Given on the twelfth of the Kalends of May, during the Consulate of Julian, Consul for the second time, and Crispinus, 225.

3. The Emperor Galliemis to Valerius.

A guardian or curator appointed for the purpose of defending the case of a ward cannot be sued for the acts of his administration, as the guardianship has only been undertaken for a special purpose. Therefore if (as you allege) you have transacted no business with the exception of that for which you were appointed, suit will in vain be brought against you.

Given on the Kalends of April, during the Consulate of Valerian and Lucian, 266.

4. The Same Emperor to Irenseus.

If, acting as a guardian appointed to conduct a lawsuit, you have expended anything in good faith, you can collect it in the customary manner from your fellow-guardians.

Given on the Kalends of November during the Consulate of Pa-ternus and Arcesilaus, 263.

5. The Emperors Diocletian and Maximian to Tigranus.

When, either under the terms of a will, or through legal relationship, the responsibility of the guardianship of the children of your brother has been imposed upon you, you should be under no apprehensions with reference to any disputes which you state formerly existed between you and your deceased brother; for if suit should be brought, an attorney having been appointed, and a curator designated to conduct the case of the wards, which should be done with the formalities required by law, the interests of all parties will be protected.

Given on the fourth of the Kalends of May, during the Consulate of the Caesars.

TITLE XLV.

CONCERNING ONE WHO TRANSACTS BUSINESS IN THE PLACE OF A GUARDIAN.

1. The Emperors Valerian and Gallienus to Marcellus.

Women, also, who administer the affairs of wards in the capacity of guardians, are required to render accounts.

Given during the Consulate of ^Emilianus and Bassus, 260.

2. The Emperors Diocletian and Maximian, and the Cazsars, tc Marcus.

A person who has not been legally appointed guardian, but who acts in the name of minors, can be removed by an exception (if he is not a guardian), although he may discharge the duties enjoined upon persons of this kind.

Given on the Nones of December, during the Consulate of the Caesars.

TITLE XLVI. WHERE A MOTHER PROMISES INDEMNITY.

1. The Emperor Alexander to Brutia.

The guardians who have been appointed by the magistrates upon your application, are at their risk, rather than that you, contrary to the condition of your sex, should be liable to anyone for the reason that you have demanded guardians to be appointed for your children on your own responsibility.

Given on the third of the Ides of March, during the Consulate of Maximus, Consul for the third time, and Urbanus, 225.

2. The Emperor Philip and the Csesar Philip to Asclepias and Menander.

You allege that indemnity has been promised to you in the name of your wards by their mother and paternal uncle, who have desired to transact certain business, and, under such circumstances, if the said wards have reached lawful age, they can proceed against you legally, and not against their mother or their uncle; hence, it is not without reason that you ask to be indemnified against what you state was undertaken at their risk, during their administration of said business.

Given on the fourth of the Ides of July, during the Consulate of Praesens and Albinus, 247.

3. The Emperors Diocletian and Maximian to Caianus.

You improperly contend that the mother is liable to you for the administration of an incapable guardian appointed at her instance, as this cannot take place unless it was specifically stated in the decree authorizing his appointment that she would be liable.

Given on the Kalends of December, during the Consulate of the same Emperors.

TITLE XLVII.

WHERE A GUARDIAN Is APPOINTED AGAINST THE WISHES OF THE MOTHER.

1. The Emperors Severus and Antoninus to Tertius.

If you prove that Fuscinius was appointed guardian of your son in opposition to the last will of his deceased mother, the Praetor will decree that he shall be removed from the guardianship, without being considered infamous. This provision, however, will not apply if the guardian should be convicted of having been guilty of fraud.

Given on the thirteenth of the Kalends of March, during the Consulate of Lateranus and Rufinus, 198.

TITLE XLVIII.

A GUARDIAN SHOULD ASSIST IN THE TRIAL OF A CASE OF His WARD AFTER THE LATTER REACHES PUBERTY.

1. The Emperor Philip to Dexter.

It has been frequently stated in rescripts that guardians who have not yet transferred their administration to curators must assist in the defence of the cases of their wards. Therefore if, as you allege, the parties whom you mention have in their possession any documents which can be of assistance in the appeal of the case, the Governor of the province, after application has been made to him, shall order them to produce said documents, or be liable for not doing so.

Given on the twelfth of the Kalends of November, during the Consulate of Philip and Titian, 246.

TITLE XLIX. WHERE MINORS SHOULD BE BROUGHT UP.

1. The Emperor Alexander to Dionysodorus.

The bringing up of your wards should be entrusted to their mother in preference to all other persons, if she has not given them a stepfather. Where, however, a dispute with reference to this point arises between her and the cognates and guardians, the Governor of the province, after having taken into consideration the rank and relationship of the parties, should decide where the child is to be brought up; and when he renders such a decision, he whom he charges with this duty will be obliged to perform it.

Given on the seventh of the Ides of February, during the Consulate of Maximus, Consul for the second time, and Julianus, 224.

2. The Emperors Diocletian and Maximian, and the Csesars, to Grata.

The Governor of the province will decide whether your grandson by your daughter shall reside with you, or with his paternal uncle,

after having- taken into account the affection which each of you entertains for him, and which one he is most likely to succeed as heir.

TITLE L. CONCERNING THE SUPPORT TO BE FURNISHED TO A WARD.

1. The Emperor Antoninus to FoMstinus.

When a ward is not furnished support by his guardian, he should apply to the Governor of the province who will perform his duty in seeing that no delay takes place in providing him with food.

The same rule applies if a suit is pending with reference to the status of the ward or minor, or concerning his property.

Given at Rome, on the sixth of the Ides of July, during the Consulate of La3tus, Consul for the second time, and Cerealis, 216.

2. The Emperor Alexander to Euphidus.

Although for the most part it is required that the support given to wards or minors by a decision of the Prsetor should be regulated in proportion to their means, still, sometimes those who transact the business of others make provisions for them at their own instance, to avoid having any controversy in court. Hence, where a guardian, being a good and innocent man, provides for his ward in accordance with his own judgment, which it is sometimes necessary for him to do in order to avoid revealing the secrets of the estate, and exposing debts which may be doubtful, since, in the meantime, it is better to keep silent than to have any inquiry made concerning the amount of their property, by voluntarily applying to the judge to establish their allowance and giving him information against the interests of the wards, there is no doubt that they should be reimbursed for any expenses which they may have incurred for the support, the bringing up, and the education of the wards, in accordance with the opinion of a good citizen. For it should not be tolerated that a young man who has received instruction and has been supported should refuse to pay such expenses, if he cannot prove that they have been incurred by someone else, just as if he had lived on wind, and was not imbued with the principles of a freeman.

Given on the Nones of December, during the Consulate of Maximus, Consul for the second time, and ^Elianus, 224.

TITLE LI.

THE DECISION OP GUARDIANSHIP. 1. The Emperor Antoninus to Leo.

As an account of the administration of your guardianship has been demanded by you, it is not in conformity with the trust or with legal evidence (as you allege), for you to be compelled to show that

the testator either increased or diminished the estate of the wards by the terms of his will.

2. The Same to Prsesentinus.

The judge who has jurisdiction over the case shall examine whether the debts due to the estate were good at the beginning of the guardianship, and whether they have subsequently become uncollectible through the gross negligence of the guardian; and if it is clear that they have been depreciated through the fraud or evident negligence of the guardian, he must provide for indemnification of the ward by an action of guardianship growing out of the negligence of the guardian.

Given on the Nones of July, during the Consulate of Antoninus, Consul for the fourth time, and Balbinus, 214.

3. The Same to Vitalius.

If your curator, after a decree of the Governor, appropriates a sum of money which had been deposited for the purchase of a certain tract of land, and purchases it for himself, you can take your choice whether you will claim the property as having been bought with your money, or whether you will demand it with interest as having been converted by him to his own use. The judge before whom the action is brought shall render his decision in accordance with the circumstances.

Given on the third of the Kalends of July, during the Consulate of Lastus, Consul for the second time, and Cerealis, 216.

4. The Emperor Alexander to Aglaiis.

There is no reason why he who rejects the estate of his father in conformity with the terms of the Edict should have an action of inheritance brought against him. Nor does it make any difference if an action will lie in his favor against his curators or guardians, where he did not designedly reject the estate. In a proceeding of this kind, which has reference to what the guardians did, or should have done, their negligence alone is considered; and no account is taken of the damages sustained by the ward through not accepting the estate. The result of this is that, if you have compromised with your guardians or curators, no action will lie in favor of the creditors of your father as against you.

Given on the third of the Kalends of May, during the Consulate of Alexander, 223.

5. The Emperor Gordian to Victorinus.

It has been established for a long time that all guardians or their heirs should appear before the same judge. Therefore, as you allege that your father administered the guardianship with another person, the Governor of the province should appoint the same judge for the purpose of determining how much you, as well as the heirs of the fellow-guardians of your father, should each be required to pay.

Given on the tenth of the Kalends of August, during the Consulate of Pius and Pontianus, 239.

6. The Emperors Diocletian and Maximian, and the Csesars, to Conon and Others.

As it is alleged that your guardian is not only guilty of having made a forbidden sale, but also of fraud with reference to the price, the Governor of the province should not hesitate to order the remainder of the price, together with interest for" which your property was sold, immediately to be returned to you, if you desire to have the sale confirmed. It is superfluous for you to petition Us to have the heirs of him who sold the property pay you the price of the same, which you have demanded from them, for the reason that this cannot be concealed from the knowledge of the Governor.

The guardians who are concerned in the transaction, or their heirs, should be sued in the first place, on account of the affairs which have been administered by them, and the other guardians can only be held liable for damages for business which they have transacted as substitutes. If, however, it is shown that all of them administered the guardianship together, you will have the right to select which one you will sue, so that the rights of action which you have against the others may be assigned to the one whom you have chosen.

Given on the fourth of the Kalends of September, during the Consulate of the Emperor Diocletian, Consul for the fourth time, and the Emperor Maximian, Consul for the third time, 290.

7. The Same Emperors and Csesars to Alexander.

It is a certain rule of law that anything that minors have lost through the fraud, or gross or slight negligence of a guardian or curator, they can recover by the action of guardianship, or by the praetorian action of voluntary agency, even if the said guardian or curator did not acquire the property when he could have done so.

Given on the day before the Ides of April, during the Consulate of the above-mentioned Emperors.

8. The Same Emperors and Csesars to Dalmatius.

The prescription of long time does not prevent guardians from being sued in the action of guardianship. Therefore, if you have not released your guardians by a compromise, a novation, or a receipt, you will not be prevented from demanding whatever is due to you before the Governor of the province.

Given on the fourteenth of the Kalends of May, under the Consulate of the above-mentioned Emperors.

9. The Same Emperors and Csesars to Julian.

You can sue your former guardian before the Prsetor to compel him to render an account, or to restore what you are entitled to and which remains in his hands. For although it is alleged that your mother, having received the administration of your property from the

hands of your guardian, promised to indemnify him for any loss you might sustain in consequence, still, a right of action based on the stipulation will lie in your favor against your mother's heirs.

Given on the day before the Kalends of January, during the Consulate of the above-mentioned Emperors.

10. The Same Emperors and Csesars to Pomponius.

If the deceased administered your guardianship, you cannot claim or hold the ownership of his property, but an action of guardianship will lie in your favor against his heirs. It is, however, necessary for the debt to be proved by other evidence; for as neither he nor his wife had possession of the property previous to the administration of the guardianship, the evidence which you offer is not sufficient; for neither industry, nor the increase of their property which is obtained by their labor or in many other ways should be forbidden to the poor.

Ordered on the tenth of the Kalends of February, during the Consulate of the Caasars, 293.

11. The Same Emperors and Csesars to Chrusianus.

Where a guardian continues in the administration of the guardianship after a girl has arrived at the age of puberty, he can be compelled by an action of guardianship to render an account for the entire time. If, however, he does not interfere in the management of the affairs of the ward after his administration has been terminated, he will not be responsible for the time which has subsequently

elapsed.

Given on the Kalends of December, during the Consulate of the

Caesars, 293.

12. The Same Emperors and Csesars to Quintilla.

An action of guardianship will lie in favor of the heirs of a ward against those of the guardian.

Given on the tenth of the Kalends of December, during the Consulate of the Csesars, 293.

13. The Emperor Justinian to Julian, Prsetorian Prefect.

In order to dispose of the doubt attaching to the ancient law, We order that if a guardian or curator has stated that the property of a ward or minor is greater in amount than it really is, whether he did so for the welfare of the ward, or minor, or through his own mistake, or for any other reason whatsoever, it shall, in no way, prejudice the truth, but this shall prevail; and the estimate of the property of the ward or minor shall not be calculated on any other basis than that which the nature of the property requires. Where, however, the said guardian or curator publicly stated the amount of the property of the ward or minor in an inventory, and by means of a document of this kind made it greater than it really was, the value of said property shall not be estimated in any other way than by

means of the said inventory, and the guardian or curator shall be compelled to render an account of the estate in accordance with the terms of that document. For no man can be found who is so stupid (even if he is a fool) as to suffer anything against himself to be inserted in a public inventory.

(1) The rule should be strictly observed that a guardian or curator shall not venture to have anything to do with the property of his ward or minor, or claim for himself any right to administer it before an inventory has been publicly drawn up, and the said property transferred to him in the usual manner, unless the testator from whom it was derived especially forbade an inventory of the same to be made. All guardians and curators are notified that, if they have failed to make an inventory, and are removed from office as being suspected, and are subjected to the penalties provided by the laws, and are afterwards branded with perpetual infamy, they cannot enjoy the benefit of the Imperial absolution from this dishonor.

Given at Constantinople, on the Ides of August, during the Consulate of Lampadius and Orestes, 530.

TITLE LII.

CONCERNING THE DIVISION OP GUARDIANSHIP, AND FOR WHAT PORTION OP THE SAME EACH GUARDIAN Is LIABLE.

1. The Emperor Gordian to Optatus.

If, when the administration of the guardianship was terminated, your colleagues were solvent to the extent to which they were liable, and afterwards not having been called to account, they became insolvent, the rule of law does not permit that the fault of others should be atoned for at your expense.

Given on the sixth of the Ides of March, during the Consulate of Gordian, Consul for the second time, and Pompeianus, 242.

2. The Emperors Carinus and Numerianus to Primigenius.

If the division of the administration has not yet been made between guardians or curators in the same place or province in which they were appointed, the minor has a right to select one of them and collect the entire indebtedness from him, and, by doing so, he will release any other rights of action against the other guardians or curators to which he may be entitled. But where the division of the administration has been made either by the Governor, or by the will of the testator, the minor can sue either one of the said guardians or curators on account of his share of the administration.

In a case of this kind, the guardians or curators are only responsible for the share of the administration with which they have been entrusted, unless they have failed to remove one of their number on account of his being suspected of being guilty of fraud or negligence; or they stated their suspicions of this, when it was too late, and the said guardian or curator had become insolvent; or whether,

in proceeding against the suspected person, they have voluntarily betrayed the interests of the ward; it will be of no advantage to them to allege that their fellow-guardian did not administer the affairs of

the trust.

Where, however, they themselves divided the administration between them, the minor will not be prevented from suing any one of them for the entire amount, provided he transfers to the one whom he selects all the rights of action which he has against the others.

Given on the twelfth of the Kalends of April, during the Consulate of Carinus, Consul for the second time, and Numerianus, 284.

3. The Emperors Diocletian and Maximlan, and the Csesars, to Zoticus.

Although guardians cannot, by means of a mutual agreement, release one another from liability, still, there is no doubt that the one who administered the trust, as well as his heirs, can be sued in the first place, if he is solvent.

Given on the fourth of the Kalends of October, during the Consulate of the Caesars.

TITLE LIII.

CONCERNING THE OATH TO BE TAKEN DURING LITIGATION.

1. The Emperors Severus and Antoninus to Asclepius.

When receiving a judge for the transfer of the guardianship as against the heirs, you desire that all the documents having reference to the ward shall be returned to you at the time of the commencement of the suit. If, through fraud, they are not produced, you will have a right to be sworn, provided you wish to extend the affection due to your former ward by invoking the sanction of religion.

Given on the Kalends of August, during the second Consulate of Antoninus and Geta, 206.

2. The Emperor Antoninus to Sevenis.

He who demands an account of the administration of a guardianship or a curatorship cannot be compelled against his will to take the oath in court, but if he wishes to do so, he should be heard, if the heir of the guardian either through fraud, or for the purpose of deceiving the ward, refuses to produce the documents in which the latter is interested. When, however, he is not convicted of fraud, gross negligence, or an intention to deceive the heir, as the oath under such circumstances does not apply, the judge shall ascertain the truth which he can do by means of convincing evidence.

Given on the eleventh of the Kalends of October, during the Consulate of the two Aspers, 213.

3. The Same to Priscianus.

The sum mentioned in the decree which the judge, after having caused you to be sworn, has rendered against your former curators, cannot be diminished by an agreement.

Given on the Kalends of July, during the Consulate of Lsetus, Consul for the second time, and Cerealis, 216.

4. The Emperor Gordian to Mutian.

A guardian is subject to one law and his heir to another, for if the guardian should not produce the inventory and other documents demanded, the oath in court can be admitted against him; and the same rule applies to his heir, if he has found the documents among the papers of the estate, and fraudulently refuses to produce them. But as you allege that as proceedings were instituted against the guardian himself, they must be transferred by you against his heirs; and, unless the documents in question are produced, the Governor of the province must perform his duty, being well aware what it is as prescribed by the terms of the constitutions.

Given on the seventh of the Kalends of October, during the Consulate of Pius and Pontianus, 239.

5. The Emperors Diocletian and Maximian, and the Csesars, to Artemidorus.

Although it has been decided that, in an action of guardianship, the oath should not be taken against the heirs for the reason that they have not made the inventory, still, it is proper for the judge to render a decision against them after having ascertained by other evidence that fraud has been committed by the guardian.

Given at Nicomedia, on the eighth of the Kalends of January, under the Consulate of the Csesars, 294.

TITLE LIV. CONCERNING THE HEIRS OF GUARDIANS OR CURATORS.

1. The Emperors Severus and Antoninus to Fuscianus.

The heirs of a guardian should not be held liable for his neglect, which is not comparable to gross negligence, if proceedings were not instituted against him, as they have neither profited by the loss of the ward, nor have done nothing by way of favor.

Given on the sixth of the Ides of March, during the Consulate of Lateranus and Rufinus, 198.

2. The Emperor Antoninus to Valentine and Maternus.

Your father, having been appointed a guardian or curator, and not having been excused, you can, none the less, as his heirs, be sued in an equitable action or one on guardianship, although you allege that he did not administer the guardianship or curatorship; for lia-

bility exists on account of his failure to administer the same. It has, however, frequently been stated in rescripts that proceedings should first be instituted for their acts against those who administered the trust.

Given on the eleventh of the Kalends of March, during the Consulate of Antoninus, Consul for the fourth time, and Balbinus, 214.

3. The Same to Vita.

Proceed against the heirs of your former guardian by an action of guardianship, and whatever he was liable to you for on account of being a surety, will also be included in the action.

Given on the third of the Nones of July, during the Consulate of Antoninus, Consul for the fourth time, and Balbinus, 214.

4. The Emperor Alexander to Frontimis.

The heirs of those who have administered a guardianship or curatorship are required to restore whatever may have come into their hands which forms part of the property of the ward or the minor. There is also no doubt that an account should be rendered of whatever the guardian or curator should have administered, but did not.

Given on the eighth of the Kalends of November, during the Consulate of Alexander, Consul for the third time, and Dio, 230.

TITLE LV. WHEN A GUARDIAN OR A CURATOR DOES NOT ACT.

1. The Emperor Alexander to Zodicus.

It is certain that not only those who administered the affairs of a guardianship, but also those who ought to have done so, and did not, will be liable in an action of guardianship for what could not be recovered from their fellow-guardians, for the reason that they failed to have them declared suspicious when they should have done so.

Moreover, although you could not bring an action involving infamy against your patron, you still were able to provide that you should lose nothing by the administration of the guardianship, by making the necessary application to the court having jurisdiction of such matters.

Given on the second of the Ides of December, during the Consulate of Maximus, Consul for the second time, and ^Elianus, 224.

2. The Same to Justus.

Where persons do not interfere in the affairs of a guardianship or curatorship, they are not liable when those guardians or curators who have administered the guardianship are solvent. If, however, they have failed to perform certain acts which they should have performed, all will be equally liable for gross negligence.

Given on the eighth of the Kalends of May, during the Consulate of Julian, Consul for the second time, and Crispinus, 225.

TITLE LVI. CONCERNING INTEREST BELONGING TO WARDS.

1. The Emperor Antoninus to Crescentina.

It was long ago settled that a gu'ardian or curator who has employed the money of his ward for his own benefit will be liable for legal interest on the same.

Given on the Nones of June, during the Consulate of Antoninus, Consul for the fourth time, and Balbinus, 214.

2. The Emperor Alexander to Ampliatus.

There is no doubt that interest should be paid on what is due on account of the guardianship, although payment is required for what is due from a fellow-guardian who is insolvent, as this would not have happened if the removal of the guardian had been accomplished by means of a statement that he was liable to suspicion.

Given on the thirteenth of the Kalends of July, during the Consulate of Julian, Consul for the second time, and Crispinus, 225.

3. The Same to Vitalius.

If you have not been able to lend the money belonging to your ward to persons who are solvent, or employ it in the purchase of land, the judge will know that interest on said money cannot be collected from you.

Given on the Ides of April, during the Consulate of Modestus and Probus, 229.

4. The Emperors Diocletian and Maximian, and the Csesars, to Ditatius and Aurelius.

Your ward cannot be compelled to bring an action of guardianship against you, but if you owe him anything, try to bring him into court by frequently serving notice upon him, so that interest may not run on what you owe; and if, through dissimulation, he protracts the affair, file your statement in writing before the Governor of the province. In this way, you will provide for your own security, as well as that for your children. This also applies to curators.

Given on the third of the Kalends of September, during the Consulate of the Csesars, 293.

TITLE LVII.

CONCERNING THE SURETIES OR GUARDIANS AND CURATORS.

1. The Emperor Alexander to Felix.

You must choose whether you will proceed against the guardians or curators themselves, their heirs, or those who became their sureties ; or you can divide your action if you prefer to do so; for suit

cannot be brought against a defendant and his sureties for the entire amount, at the same time.

Given on the tenth of the Kalends of February, during the Consulate of Julian, Consul for the second time, and Crispinus, 225.

2. The Same to Priscus.

It is a certain rule of law that if the principal is chosen to be sued, and is solvent, the surety will be released, and therefore if the surety is merely accepted for the amount for which the guardian or curator will be liable (as you state that the guardian or curator having had judgment rendered against him has made payment), how can any doubt arise as to the release of the surety? If, however, any stipulation has been entered into with reference to the integrity of the property of the ward, or security has been given for anything which cannot be made good by the guardian or curator, the surety will remain bound to make up the deficiency.

Given on the seventh of the Kalends of August, during the Consulate of Fuscus, Consul for the second time, and Dexter, 226.

TITLE LVIII. CONCERNING THE COUNTER ACTION OP GUARDIANSHIP.

1. The Emperors Severus and Antoninus to Strata.

If you have paid a sum of money for your fellow-guardian, after judgment has been rendered against you, no action will lie in your favor against the ward to compel him to assign his right of action to you against him who has been released by your having made payment. Where, however, you have purchased the claim, having been appointed attorney in your own behalf, you can bring an action to enforce judgment against the heirs of the person for whom you made payment.

Given on the second of the Kalends of March, during the Consulate of Fabian and Mutianus, 202.

2. The Emperor Antoninus to Primitivus.

If you, through no fault of your own, have had judgment rendered against you in favor of your female ward, and while absent and undefended you acquiesced in the decision, as you have taken measures to satisfy the judgment, you can have her rights of action against your fellow-guardian assigned to you by your ward, or you can avail yourself of the praetorian action.

Given on the second of the Ides of October, during the Consulate of the two Aspers, 213.

3. The Emperors Diocletian and Maximian to Thesis.

If your father, whom you allege administered the estate of his step-son, died after having executed a will according to law, and by it appointed his former ward his heir, as it is established that a claim

for the hereditary share of the guardianship has not been extinguished by merger, it will be proper for you as the co-heir of your father to render an account for the remaining portion of the guardianship before a competent judge.

In accordance with the requirements of good faith, set-off will be admitted for the amount which you allege your father expended for the benefit of his ward, and if, after this, any more is due, you will be obliged to pay it. Where, however, being aware that more has been expended for his benefit than you are liable for, he does not think that an action of guardianship should be brought on this ground, you can sue him in a contrary action.

Given on the eighteenth of the Kalends of January, during the Consulate of the Caesars, 294.

. TITLE LIX.

CONCERNING THE AUTHORITY WHICH SHOULD BE GRANTED BY A GUARDIAN OR CURATOR.

1. The Emperors Diocletian and Maximian, and the Csesars, to Antoniamis.

The absence of neither the guardian nor curator will prejudice, in any way, a stipulation made in behalf of a ward or a minor.

Given without date, during the Consulate of the above-mentioned Emperors.

2. The Same Emperors and C&sars to Serena.

By releasing them while you were a minor without the authority of your guardian, you can, by no means, lose your right of action.

Given on the seventeenth of the Kalends of May, during the Consulate of the Caesars, 293.

3. The Same Emperors and Csesars to Gaius.

The prescription of long time does not protect anyone who has purchased something from a ward without the authority of his guardian.

Given on the third of the Kalends of December, during the Consulate of the Csesars, 293.

4. The Emperor Justinian to John, Prtetorian Prefect.

In order to make Our statement clear to posterity, We order that guardians or curators must, by all means, be present when minors under the age of twenty-five years either institute criminal proceedings, or are defendants under circumstances where the laws permit minors and wards to be accused, as it is more prudent and better that minors should make their defences or prosecute their cases with the full advice of their guardians, in order that they may not either say or suppress anything through their want of experience or juvenile impetuosity, which, if it had been stated on the one hand, or not

mentioned on the other, might have been of advantage to them, or have prevented them from being injured.

Given at Constantinople, on the tenth of the Kalends of March, after the fifth Consulate of Lampadius and Orestes, 531.

5. The Same to John, Prsetorian Prefect.

Desiring to remove all doubt which formerly existed as to whether a single testamentary guardian, or one appointed after investigation, could act by his sole authority (even though there were several guardians who were not appointed for different places), or whether all those who were legally or judicially appointed could be compelled to give their consent, We order that where several guardians have been appointed either by the will of the father, or called by law, or named by the judge either after an investigation or without ceremony, the consent of one guardian alone shall be sufficient, where the administration is not divided either by localities, or by portions of the estate. For it is necessary for each one to give his consent to the ward with reference to the part of the estate, or the locality for which he has been designated, and We order that, in this respect, testamentary guardians shall not differ from those appointed after investigation, or such as are called by law, for which reason they are all equally obliged to furnish security, and a subsidiary action in favor of their wards will lie against them.

These provisions, however, must be understood only to be applicable where the dissolution of the guardianship is involved, as, for instance, where the ward desires to give himself in arrogation; for it would be absurd if the guardianship should be abolished, not only without the consent, but perhaps without the knowledge of the person appointed. For then, whether the guardians are designated by will, or after investigation, or whether they are called by law or appointed without ceremony, it is necessary for all of them to consent, so that what concerns them all may be approved by all. These provisions must likewise be observed with reference to curators.

Given at Constantinople, on the Kalends of September, after the fifth Consulate of Lampadius and Orestes, 531.

TITLE LX.

WHEN GUARDIANS OR CURATORS CEASE TO DISCHARGE THE DUTIES OF THEIR OFFICE.

1. The Emperor Antoninus to Hernula.

When curators are added to guardians, it is perfectly clear that the duties of both are terminated by the arrival of the minor at the age of puberty, and therefore that other curators should be appointed on account of the weakness attaching to the age of the minors.

Given at Rome, on the fourth of the Kalends of August, during the Consulate of Antoninus, Consul for the fourth time, and Balbinus, 214.

2. The Emperors Diocletian and Maximian, and the Csesars, to Menippus.

It is perfectly evident that the duties of a guardian cannot be terminated merely by the will of the ward.

Given on the thirteenth of the Kalends of February, during the Consulate of the Caesars, 292.

3. The Emperor Justinian to Menna, Prsetorian Prefect.

Abolishing the indecent examination established for the purpose of ascertaining the puberty of males, We order that just as females are considered to have arrived at puberty after having completed their twelfth year, so, likewise, males shall be held to have arrived at that age after having passed their fourteenth year, and the disgraceful examination of the bodies of such persons is hereby terminated.

Given at Constantinople, on the eighth of the Ides of April, during the Consulate of Decius, 529.

TITLE LXI.

CONCERNING THE APPOINTMENT OP AN AGENT BY A GUARDIAN OR CURATOR.

1. The Emperors Diocletian and Maximian, and the Csesars, to Alphocratio.

If your children, who are their own masters, have succeeded their mother, although it may be shown that you were their guardian, still it is settled that you may petition for their affairs to be managed during your absence, not by an attorney, but by an agent appointed by you under a decree.

Given on the Nones of January, during the Consulate of the Caesars, 293.

TITLE LXII.

CONCERNING THE EXCUSES OF GUARDIANS AND CURATORS AND WHEN THEY MAY BE OFFERED.

1. The Emperors Severus and Antoninus to Aviola.

You are laboring under an erroneous idea when you think that because you are an eunuch you are exempt from performing the duties of guardianship.

Given on the Kalends of May, under the Consulate of Chilo and Libo, 205.

2. The Same to Habentianus and Cosconius.

If you have been appointed curators in general terms, and it has not been mentioned in the decree that you are only to discharge your duties in Italy, you should go before a competent judge and obtain your release from administration in the province. If this should be

done, the minors can petition to have curators appointed for them in the province.

Given on the eighth of the Kalends of September, during the Consulate of Chilo and Libo, 205.

3. The Same to Crispinus.

It is certain that if you, being freeborn, have been appointed guardian of a freedman, you can be excused, but as the Governor of the province did not think that you should be heard because your application was barred by prescription, as you applied to him too late, and did not appeal from this decision, you are advised that you must comply

with it.

Given on the Ides of March, during the Consulate of Albinus and

JElianus, 207.

4. The Emperor Antoninus to Agathus Demon.

It has been established by a Decree of the Senate that anyone who marries his female ward is understood to contract an illegal marriage, and will be branded with infamy. If, however, you, while absent and ignorant of the fact, were appointed the curator of Demetria, to whom you were married, you can rest secure, provided someone is substituted in your stead; for the ignorance of a husband should not be considered as fraud under the Decree of the Senate.

Given on the eleventh of the Kalends of July, during the Consulate of Sabinus and JSmilianus, 207.

5. The Emperor Alexander to Basilius.

The illustrious order of the Senate, at the suggestion of the Divine Marcus, decreed that freedmen could, under no circumstances, be excused from the guardianship or curatorship of the children of their patron or patroness; therefore, it would be of no advantage to them to allege that they have been appointed curators for said children, against the consent of their patron or patroness, in order to avoid administering the guardianship of said children.

6. The Same to Maximian.

The same constitution which established the term of fifty days, within which persons who have been appointed guardians or curators can excuse themselves, also provided that the time shall run from the date when the decree of the Praetor or the will of the father was brought to the attention of the person appointed to discharge this duty. If, however, anyone, after the time when notice was served upon him, should be unjustly treated by the court, and does not appeal, he must comply with the decision.

Given on the third of the Nones of May, during the Consulate of Julian, Consul for the second time, and Crispinus, 225.

7. The Same to Antoninus.

No one is excused from guardianship or curatorship for the reason! that he is either a creditor or a debtor of the person for whom he has]

been appointed; but he ought to have an associate, so that, if circumstances should demand it, the minor who needs the assistance of others may be protected.

Given on the third of the Ides of July, during the Consulate of Julian, Consul for the second time, and Crispinus, 225.

8. The Same to Maximus.

Tenants, that is to say, the lessees of lands belonging to the Treasury, cannot allege this as an excuse for exemption from civil functions, and therefore they should discharge the duties of guardianship imposed upon them.

Given on the fourth of the Kalends of February, during the Consulate of Fuscus and Dexter, 226.

9. The Same to Romanus.

Your brother should not be excused from guardianship or curator-ship for the reason that he has lost an eye, hence you understand that he cannot avoid the duty imposed upon him.

Given on the Kalends of February, during the Consulate of Modes-tus and Probus, 229.

10. The Same to Crispinus.

You should have had no doubt that collectors of taxes while performing their duties are exempt, not only from civil charges, but also from guardianship.

Given on the Ides of August, during the Consulate of Alexander, Consul for the third time, and Dio, 230.

11. The Same to Hylas.

You, having been appointed a testamentary guardian, should have applied within fifty days to be excused from the administration of the property of your ward, which is situated in another province from the one in which you are, and where you reside. If you failed to do this, your application to be excused will be barred by prescription; but if the Governor of the province is of the opinion that you are not capable of administering the property, on account of its being widely scattered, he will provide for curators to be joined with you in the management of the same.

Given on the eighth of the Ides of December, during the Consulate of Pompeianus and Pelignus, 232.

12. The Emperor Gordian to Valentine.

Voluntary acceptance of guardianship does, in no way, deprive a person of the privileges to which he is entitled.

Given on the eleventh of the Kalends of November, during the Consulate of Pius and Pontianus, 239.

13. The Same to Apollinarus.

Neither the freedman of senators or others are exempt from civil charges merely for the reason that they are transacting the business

of their patrons. The freedman of a senator, however, who is transacting the affairs of his patron, may be excused from guardianship or curatorship.

Given on the tenth of the Kalends of February, during the Consulate of Gordian and Aviola, 240.

14. The Same to Heraclida.

The Governor of the province must severely punish the magistrates who appointed your uncle guardian, if he should ascertain that this has been done with the expectation of his paying them money to be excused from performing his duties.

Hence if he is entitled to any excuse, and can show that he has not been nominated for any other reason than to be annoyed by a lawsuit, he who appointed him shall, in compliance with the terms of the constitution, be required to return to him everything which he has expended in the proceedings.

Given on the Ides of September, during the Consulate of Gordian and Aviola, 240.

15. The Same to Taurus.

Although you have been retained in the guardianship because the excuse which you offered was not accepted, and you have had recourse to an appeal, and, in the meantime, the persons whom you mentioned have reached the age of puberty, the examination of the appeal must, nevertheless, proceed in the manner prescribed by law, on account of the risk attending the administration of the trust.

Given on the eighth of the Kalends of November, during the Consulate of Arian and Pappus, 244.

16. The Emperor Philip to Theodotus.

If (as you state) you have been appointed guardian of those with whom you have a dispute concerning an estate, and, the time formerly prescribed within which your excuse must be offered has not yet expired, you can appear before the Governor of the province, who will render a decision in compliance with the Decrees of the Emperors according to the importance of the case.

Given on the tenth' of the Kalends of August, during the Consulate of Peregrinus and .ZEmilianus, 245.

17. The Emperors Gallienus and Valerian to Epagathus.

Although the question is not specifically mentioned in an Address of the Divine Marcus on this subject, still, he who has been appointed curator of his daughter-in-law after the marriage has taken place, should be excused, lest he may act contrary to the terms of the said address and be guilty of want of propriety.

Given on the sixth of the Ides of January, during the Consulate of Valerian, Consul for the second time, and Lucian, 266.

18. The Emperors Diocletian and Maximian, and the Csesars, to Sabinus and Others.

It is a positive rule of law that guardians are not required to appeal after having been appointed. Therefore, although you have not appealed, still, if you think that you have a good excuse, you will not be prevented from presenting it to the Governor of the province within the time prescribed by the Constitution of the Divine Marcus. For the fact that the father of your ward has left the usufruct of all his property to his former wife, as you allege, will not be sufficient to release you from the guardianship.

Given on the Nones of April, during the Consulate of the Caesars.

19. The Same Emperors and Csesars to Dionysius.

You desire something unusual when you petition to be excused from the guardianship of a son, for the reason that you contend that his mother can sue you by the contrary action of guardianship.

Without date or designation of consulate.

20. The Same Emperors and Csesars to Cratinus.

If you have been appointed the curator of minors whose guardian you previously were, you cannot be required to administer the curator-ship against your will. Hence, if the time prescribed for offering excuses has not yet expired, you can make use of a proper defence.

Given at Nicomedia, on the tenth of the Kalends of December, during the Consulate of the Csesars.

21. The Same Emperors and Caesars to Parammon.

You have not a valid excuse for being released from guardianship, because you allege that you hold property in common with your uterine brothers, as a division of it can be made by the appointment of a curator.

Given at Nicomedia on the eighteenth of the Kalends of January, during the Consulate of the Csesars.

22. The Same Emperors and Csesars to Hermodorus.

If, after having been appointed guardian, your excuse has been admitted by the Decree of the Governor, you will be released, for it is clear that no responsibility for the administration will attach to you.

Given at Nicomedia, on the thirteenth of the Kalends of January, during the Consulate of the Csesars.

23. The Same Emperors and Ctesars to Neophytus.

The principles of humanity and affection do not permit you to be compelled to bring suit against your sister or her children, on account of matters connected with the guardianship, as the welfare of the ward himself, of whom you have been appointed guardian, appears to require another course, that is to say, that he should have a guardian who will not be prevented from conducting his defence through affection for his adversary. Therefore, in accordance with the rule which We

have formulated after having been consulted, you must go before the Praetor and he will act in accordance with your wishes, as well as for the welfare of your ward.

Given on the sixth of the Kalends of February, during the Consulate of Tuscus and Amulinus, 295.

24. The Emperors Arcadius and Honorius to Flavian, Prastorian Prefect.

We have, up to this time, granted exemption from guardianship or curatorship to the owners of vessels, so that they are only required to serve in this capacity where the minors belong to their association.

Given at Milan, on the third of the Nones of March, during the Consulate of the above-mentioned Emperors.

25. The Emperor Anastasius to Antiochus, Imperial Chamberlain.

We order that the illustrious men belonging to Our Imperial palace, known as silentiarii, shall be exempt from guardianship and curator-ship while in attendance on Our person.

Given on the Kalends of January, during the Consulate of John and Asclepio, 300.

TITLE LXIII.

WHERE A GUARDIAN OR CURATOR HAS BEEN EXCUSED BY MEANS OF FALSE ALLEGATIONS.

1. The Emperor Alexander to Symmachus and Diotimus.

If, during the absence of your relatives or of those who have volunteered to defend you, the person appointed your guardians or curators have caused themselves to be released from the discharge of their duties by means of improper allegations, in order that they may not profit by having deceived the judge, the Governor of the province shall hear you, and if it appears that they have extorted an unjust decree, he shall decide that they must assume the responsibility for the administration from the time of their appointment.

Given on the twelfth of the Kalends of May, during the Consulate of Maximus, Consul for the second time, and ^Elianus, 214.

2. The Emperor Philip and the Csesar Philip to Aulizanus.

It is clear that the guardians whom you assert have, after administering the property of their wards, obtained their release from the Governor of the province just as if they had done nothing with reference to the guardianship, they can, by no means, avoid responsibility for the administration.

Given on the fourteenth of the Kalends of June, during the Consulate of Philip and Titian, 246.

3. The Same Emperors and C&ssars to Octavius. If (as you allege) the other party has been excused from the administration of the guardianship or curatorship of your brother and

yourself, rather through favor than for any lawful reason, he will not be released from liability for the charge imposed upon him. Without date or designation of consulate.

TITLE LXIV.

WHERE A GUARDIAN OR CURATOR is ABSENT ON BUSINESS FOR THE STATE.

1. The Emperor Gordian to Guttius.

Those who have been appointed guardians or curators, and are about to be absent on public business, should have themselves excused for the time, in order that they may not be held liable in the meanwhile. Therefore, if you have done this, you ought not to be apprehensive of being called to account for the time during which you were absent. If, however, you have neglected to do so, demand in court that the person who administered the trust in your absence be sued first.

Given on the Ides of March, during the Consulate of Gordian and Aviola, 240.

2. The Same to Reginius.

It is certain that those guardians who have ceased to discharge their duties on account of being absent on business for the State ought to be exempt for an entire year following their return.

Given on the fifth of the Kalends of March, during the Consulate of Gordian, Consul for the second time, and Pompeianus, 242.

TITLE LXV. CONCERNING THE EXCUSES OF VETERANS.

1. The Emperor Antoninus to Saturninus.

Those who have been honorably discharged after having served in the army for twenty years, and retain their reputations untarnished, shall enjoy the privileges conceded to veterans.

Given on the seventh of the Ides of August, during the Consulate of Antoninus, Consul for the fourth time, and Balbinus, 214.

2. The Emperor Gordian to the Veteran Celer.

Although it has been decided that veterans can only be compelled to administer the guardianship or curatorship of the sons of their fellow-veterans, or of soldiers, and only one of these at a time, still, if they should be appointed the guardians or curators of others, they must present their excuses before a competent judge within the time prescribed by law.

Given on the third of the Kalends of July, during the Consulate of Gordian and Aviola, 240.

TITLE LXVI.

CONCERNING THOSE WHO ARE EXCUSED ON ACCOUNT OF THE NUMBER OF THEIR CHILDREN.

1. The Emperors Severus and Antoninus to Herodian.

Those who are appointed guardians or curators, and have three children at Rome, concerning whose condition no doubt exists, or four in Italy, or five in the provinces, have a right to be excused.

Given on the Nones of April, during the Consulship of Geta and Plautianus, 204.

2. The Emperor Antoninus to Marcellus.

A deceased daughter is of no advantage to anyone for the purpose of declining the acceptance of a municipal office, nor shall any grandchildren be counted whose father is living, as they only benefit a father in a case of this kind.

Given on the Ides of June, during the Consulate of Antoninus, Consul for the fourth time, and Balbinus, 214.

TITLE LXVII.

CONCERNING THOSE WHO ARE EXCUSED ON ACCOUNT OF

ILLNESS.

1. The Emperor Philip, and the Czesar Philip, to Sabinus.

Anyone who is blind, deaf, dumb, insane, or is suffering from an incurable chronic disease, has a valid excuse for declining a guardianship or curatorship.

Given on the thirteenth of the Kalends of April, during the Consulate of Praesens and Albinus, 247.

TITLE LXVIII. WHO CAN BE EXCUSED ON ACCOUNT OF AGE.

1. The Emperors Severus and Antoninus to Severus.

If your father is over seventy years of age, and is appointed either a guardian or a curator, he can legally be excused.

Given on the fifth of the Ides of September, during the Consulate of Chilo and Libo, 205.

TITLE LXIX.

WHO CAN BE EXCUSED ON ACCOUNT OF THE NUMBER OF GUARDIANSHIPS.

1. The Emperor Severus and Antoninus to Pompeianus. If you are administering three guardianships or curatorships at the same time, which you have not undertaken without due considera-

tion, you shall not be oppressed with the responsibility of a fourth guardianship or curatorship of guardians or minors. Where, however, your duties have been terminated by the arrival of the wards at the age of puberty, or the minors at majority, other trusts can be substituted for them, whose administration you will be obliged to assume, even though you may not yet have rendered your accounts of that of the former guardianships or curatorships. Different kinds of excuses which are not well grounded, although they may be mingled with good ones, are of no avail in obtaining a release; therefore you should know that he who has two children and is administering two guardianships is not entitled to be released from another to which he has been appointed.

Given on the fourth of the Ides of October, during the second Consulate of Antoninus and Geta, 206.

TITLE LXX.

CONCERNING THE CURATOR OP AN INSANE PERSON OR A SPENDTHRIFT.

1. The Emperor Antoninus to Mariniana.

It is customary for curators to be appointed for spendthrifts and insane persons, though they may have attained their majority.

Given on the fourth of the Kalends of August, during the Consulate of Messala and Sabinus, 215.

2. The Emperor Gordian to Avitius.

The benefit of the Rescript of the Divine Severus, by which the rustic estates of wards or minors are forbidden to be sold or encumbered without a decree of the Governor, does not cause any injury to the agnates of an insane person. Hence, if a tract of land belonging to a person who has lost his mind is encumbered to you by one of his agnates, by way of pledge, contrary to the Decree of the Governor, the obligation of pledge with reference to it, will stand; but you will have the right to an equitable personal action against him, if the money which was loaned was employed for his benefit.

Given on the Kalends of January, during the Consulate of Pius and Pontianus, 239.

3. The Same to Aurelia.

If your father is not sane, petition to have curators appointed for him, by means of whom, if any business he transacted should be revoked, after proper examination, matters may be restored to their former condition.

Given on the seventh of the Ides of April, during the Consulate of Gordian and Aviola, 240.

4. The Emperors Diocletian and Maximian to Asclepiodotus. As you allege that the mother of an insane woman, who is her own mistress, and repudiated her husband, who alone had the right to

repudiate her, executed, along with him, certain instruments relating to the affairs of her daughter, you are informed that she could not do anything contrary to the interests of the said insane person, because she has legally no right to represent her.

Given at Byzantium, during the Ides of April, during the Consulate of the above-mentioned Emperors.

5. The Emperor Anastasius to the People.

In order that We may not appear to have intended to unduly benefit an emancipated brother or brothers, in their succession to other brothers, without imposing upon them the burdens of guardianship, We decree by the terms of this law that, notwithstanding the provision of the Twelve Tables concerning the appointment of curators, they can legally be appointed for their insane brothers and sisters.

6. The Emperor Justinian to Julian, Prietorian Prefect.

It sometimes happens that the affliction of insane men remains continuous, and with others the attacks of disease are suspended, and lucid intervals occur, and in this latter instance a great difference exists, for some of the lucid intervals are short, and others are of long duration. In former times the question arose whether the authority of the curator continued to exist during the lucid intervals of insanity, when it temporarily ceased, and when the disease returned, it was restored. Hence We, desiring to decide this doubtful point, do hereby decree that, as when insane persons of this kind recover their senses it is uncertain and impossible to determine whether this will endure for a long or for a short period, and as the parties in question frequently remain on the border line of insanity and health, and after they continue for a considerable time in this condition, the lunacy seems in some cases to be removed, We decree that the appointment of the curator shall not be considered as ended, but to exist as long as the insane person lives, for generally a disease of this kind is incurable; and We also decree that, during their perfectly lucid intervals, the curator shall not exercise his authority, and that the demented person, while he is temporarily in possession of his senses, can enter upon an estate and do everything else which sane men are competent to do.

If, however, he should again become insane, the curator must intervene in his affairs, so that everything may be done in the name of the latter, as often as the disease returns, in order that the appointment of a curator may not be made frequently, or in such a way as to be ridiculous, and seem to be appointed as often as he is required to cease to exercise his functions.

Given on the Kalends of September, during the fifth Consulate of Lampadius and Orestes, 530.

7. The Same to Julian, Prsetorian Prefect.

An insane person, who remains constantly under the care of his parents, undoubtedly cannot have a curator, for paternal solicitude is sufficient for the management of his property, which he obtained as

castrense peculium, or from other sources, whether he acquired it before he became insane, or whether it came into his hands while he was in that condition; and this also applies to the cases of those who have only the mere ownership of property. For where can such affection as influences a father be found in a stranger? Or to whom is the authority of managing the property of children to be entrusted, if their parents are excluded? Although Tertullian, the interpreter of the ancient law, in the single book which he wrote on castrense peculium, appears to have discussed this point in an obscure manner, We now have stated it with perfect clearness.

(1) When, however, the parents of an insane person happen to die, Our Constitution, which We have promulgated with reference to what should be left to an insane person by will, as well as concerning the substitution which can be made on his account, shall remain in full force.

(2) But where a man incurably insane is legally his own master, there is no doubt that, under the ancient law, he can share in the estate of his father which has been left to his children, when it plainly appears that he is a proper heir of his parents.

(3) If, however, for any cause, another inheritance or succession should descend to him, then a great and inexplicable doubt arose under the ancient law whether, while still insane, he should be admitted to enter upon the estate, or demand praetorian possession of the same, or not; and whether his curator could be permitted to demand praetorian possession of the estate. An important discussion on both sides of this question took place among jurists. Hence We, for the purpose of reconciling the authorities, do hereby decree that an insane person can, under no circumstances, accept an estate or obtain praetorian possession of it; but We grant permission to his curator, nay more, We require him, if he should think that the succession would be advantageous, to accept the prsetorian possession of the estate which resembles that formerly granted by a decree, as the demand for it was abolished by a law of the Emperor Constantine, by which a new proceeding was introduced which took the place of the ancient application.

(4) As the ancients established many regulations with reference to the appointment of a curator of an insane person, for example, in what manner a bond or security should be furnished by him with reference to certain property and certain persons, as they were in doubt whether every curator should furnish the same security, it appears necessary to Us, having a view to the interests of the human race, to remove all this obscurity and inextricable confusion, and provide for the entire matter a complete and luminous remedy. And as We first issued a decree authorizing the appointment of a curator for insane persons of both sexes, We now proceed to the consideration and removal of other difficulties.

(5) Where a father, in his last will, by which he either appointed or disinherited his heirs, designated a curator for an insane son or daughter, when it is necessary for security to be given, the will of the father is sufficient, and the person appointed shall obtain the curator-

ship, provided that, in this most flourishing City he appears before the Prefect of the same, and in a province before its Governor in the presence of the most pious bishop of the diocese and his three coadjutors, and, having placed his hands on the most Holy Gospels, he declares that he will conduct all the affairs of the said insane person lawfully and for his benefit, and that he will not omit anything which he may think to be for his welfare, or permit anything to be done which he believes will be to his disadvantage.

Extract from, Novel 72, Last Chapter. Latin Text. Generally speaking, this oath is required of all curators, but they are not exempt from rendering accounts. The same rule applies to

guardians.

END OP THE EXTRACT.

THE TEXT OF THE CODE FOLLOWS.

The curator shall undertake the administration of the estate after an inventory has been publicly drawn up with all the requisite formalities, and he can dispose of said estate as he may desire, his own property being hypothecated as security for his administration, as in the case of the guardians and curators of minors.

(6) If, however, the father did not execute a will, and the law calls an agnate as the curator, or if there is none, or a suitable one does not exist, it will be necessary for a curator to be appointed by the court; and in this instance, the appointment shall be made according to the aforesaid division, in this most nourishing City before the most distinguished Urban Prefect, but if the said insane person is of noble birth, the Senate must be called together, and, after investigation, a curator of the best reputation and the highest integrity shall be appointed. Where no such person can be found, the appointment shall be made under the sole direction of the most distinguished Urban Prefect.

Where the curator is the possessor of a considerable amount of property, this will suffice for the faithful management of his trust, and his appointment can be made without his being obliged to furnish security. If, however, it should be ascertained that he does not possess sufficient property, then the best security possible shall be required of him; and in every instance his appointment shall, by all means, be made with his hands placed on the Most Holy Scriptures.

The curator himself, no matter what his wealth or rank may be, must take the aforesaid oath to properly manage the affairs of the trust, and draw up a public inventory, in order that all the estate of the insane person may be everywhere administered as well as possible. In the appointment of the above-mentioned curator all these formalities must be observed in the provinces before the Governor of the same, and the most reverend bishop of the diocese, and his three coadjutors. The regulations concerning the appointment, the oath, and the inventory, the security, and the hypothecation of the property of the curator, must by all means be complied with.

(7) When the curator of an insane person has been appointed in this manner, and the said insane person afterwards becomes entitled to any property either by inheritance, succession, legacy, trust, or from any other source whatsoever, it shall be added to his estate, and, together with the remainder, be given into the hands of the curator, he of course making an inventory of all said property, and it shall remain in his charge; but if the insane person should afterwards recover his senses, and approve of the acquisition of said property, it shall be restored to him.

(8) If, however, the insane person should die in that condition, or, having recovered his senses, should reject the property, for example it should be an inheritance, it will go to those who have been substituted for him if they are willing to accept it, or to the heirs at law, and in their default, to Our Treasury. It must, however, be observed that those persons are entitled to the succession who were the next of kin to the insane person at the time of his death, provided that, when they are called to the succession, the person has not in the meantime been insane. All securities or bonds which the authorities of the ancient law introduced, and which have caused inextricable confusion, are hereby absolutely abolished. All legacies, trusts, and other acquisitions obtained by the insane person should undoubtedly be added to the remainder of his estate.

(9) If, however, he should recover his senses, and be unwilling to accept the property, and should openly reject it, or his heirs should do the same thing, it must at once be separated from the remainder of his estate, just as if it had never belonged to it in the first place, and should pass by lawful descent in such a way as to neither be a disadvantage nor a benefit to the estate of the said insane person.

(10) If, however, the curator of the insane person who was appointed in accordance with the provisions of Our laws should die, another shall be appointed in the same manner and with the same formalities, just as if the first one had been found to be liable to suspicion, and the other was subrogated to him. This rule, also, was established by the ancient laws.

(11) All these regulations relating to the appointment of curators which have been introduced by this new law are applicable to future cases, and any curators which have previously been appointed shall not be removed on account of it; nor shall any new restrictions be imposed upon them, but, having been appointed under the ancient law, its rules having reference to their appointment shall remain unaltered. No bond or security formerly required in the succession to which insane persons are entitled shall be furnished.

Given at Constantinople, on the Kalends of September, during the fifth Consulate of Lampadius and Orestes, 530.

TITLE LXXI.

LANDS AND OTHER PROPERTY BELONGING TO MINORS SHALL NOT BE ALIENATED OR ENCUMBERED WITHOUT A

DECREE.

1. The Emperor Antoninus to Minutianus.

The sale of a tract of land made on account of its having been pledged and in pursuance of a judicial decision is not included in the Decree of the Senate which provides that the real property of wards or minors shall not be alienated, unless this is done by the authority of the Prsetor or Governor of the province. If, however, you are of such an age as to be entitled to relief, having applied to a competent judge, he will order that complete restitution be given you, after having examined the case in the presence of the adverse party.

Given on the thirteenth of the Kalends of December, during the Consulate of the two Aspers, 213.

2. The Emperor Gordian to Clearchus and Others.

It is not necessary for you to demand complete restitution, if your guardians or curators have sold the property without the authority of a decree, even though it may have been hypothecated. If, however, the creditors did this, you will be entitled to the benefit of the Edict, if the sale was fraudulent, and it is shown that you have sustained injury with the connivance of the purchaser.

Given on the third of the Kalends of February, during the Consulate of Gordian and Aviola, 240.

3. The Emperors Valerian and Gallienus to Theodosius and Others.

As the property which you acquired after you were emancipated could not have been alienated by your father as your curator, without the authority of the Governor, especially if the said property was sold by him as his, and not as belonging to you, you have a right to recover

it by law.

Given on the third of the Nones of January, during the Consulate

of Tuscus and Bassus, 259.

4. The Same to Mithridates.

Neither urban estates nor property in a city can be sold or alienated by wards or minors, and it cannot be transferred from their ownership either by means of set-off or exchange, and much less by gift, or in any other way, without a decree of court. Hence, if you have conveyed a tract of land to your brothers by way of set-off, you can bring suit to recover it, and if, on the other hand, you have obtained anything from them under the same contract, you should return it.

Given on the fifteenth of the Kalends of May, during the Consulate of Secularis, Consul for the second time, and Donatus, 261.

5. The Same to Serenus.

Although the Governor decided that an urban or rustic estate belonging to a ward could be alienated or encumbered, still, the Senate

reserved a right of action in favor of the ward if he could prove that the judge had been deceived by false allegations, and you also are not forbidden to institute proceedings of this kind.

Given on the third of the Kalends of May, during the Consulate of Secularis, Consul for the second time, and Donatus, 261.

6. The Emperors Cams, Carinus, and Numerianus to Varus.

The sale of the real property of minors cannot be made through an application made by an attorney to the Prastor, or the Governor of a province, as this cannot legally take place unless documents are produced before either of the above-mentioned officials, which show the necessity of the sale, and a decree to that effect is formally issued.

Given on the Nones of May, under the Consulate of Carus and Carinus, 283.

7. The Same Emperors to Isidor.

If, while you were a minor under the age of twenty-five years, you executed a bond to your father for the return of a donation which he made to you when you were emancipated, as an instrument of this kind is in violation of the Decree of the Senate, it will not prejudice your rights.

Given on the sixth of the Ides of December, during the Consulate of Carus and Carinus, 283.

8. The Emperors Diocletian and Maximian to Theodota.

It is clear that the ownership of the rustic estates which', in violation of the Decree of the Senate, were given to you before marriage as a betrothal gift (this having been done at your request) cannot be transferred to you, as this has been prohibited by law, they will remain part of the property of your husband.

Given on the third of the Nones of November, during the Consulate of Diocletian and Aristobolus, 285.

9. The Same Emperors to Mutianus.

Although he who you allege sold the rustic estate of a minor did so at the time when he was acting as curator, the sale having been made contrary to the terms of the Rescript of the Divine Severus, it was very properly set aside by the decision of the Governor. You will not, however, be prevented from claiming the pledges of his own property which the curator encumbered as a guarantee against eviction.

Given during the Nones of November, during the Consulate of Diocletian and Aristobolus, 285.

10. The Same to Gratits.

The Governor will grant you relief in your claim for the ownership of lands which were alienated without the authority of a decree, and if he should ascertain that the entire amount of the purchase-money paid to your curator was not added to your property, he will allow you to

be sued only for that amount which may be proved to have been expended for your benefit, or added to your estate.

Given on the sixth of the Ides of August, during the Consulate of the above-mentioned Emperors.

11. The Same to Trophinus.

If your patron, who is a minor, sold your rustic estate without the authority of a judicial decision, it is unnecessary to mention the low price at which it was sold, as the Decree of the Senate prohibits an alienation of this kind, and the title does not pass. If, however, acting under the authority of a decree, he sold the said land at a very low price, he being ignorant of the true value of the same, complete restitution in accordance with the terms of the Perpetual Edict will, after proper investigation, be granted you.

Given on the twelfth of the Kalends of December, during the Consulate of the above-mentioned Emperors.

12. The Same Emperors and Csesars to Leontius. The rustic estate of a minor, situated in a province, can only be sold on account of a debt after a decree of the Governor has been

issued.

Given at Heraclea, on the second of the Kalends of May, during the

Consulate of the Csesars.

13. The Same Emperors and Csesars to Zenophila.

It is not lawful for a rustic estate belonging to a minor, whether the same be tributary, patrimonial, or emphyteutical, to be sold without a decree of the Governor.

Given on the eighth of the Kalends of September, during the Consulate of the Csesars.

14. The Same Emperors and Csssars to Phrominius.

Adopt the opinion of the most learned Papinianus and the other authorities whom you have mentioned in your petition, and file an exception on the ground of bad faith, if the wards demand the principal and interest which belongs to the Treasury, and you can prove that they did not tender you the amount of the debt paid on their account, and they claim the lands in the province which, with their crops, were sold without the authority of a Decree of the Governor.

Given on the ninth of the Kalends of December, during the Consulate of the Caesars.

15. The Same Emperors and Caesars to Sabina.

If, while you were a minor under the age of twenty-five years, you gave in payment a certain rustic estate when you should have given another, the Decree of the Senate does not permit you to be deprived of the ownership of the property.

Given on the eighth of the Kalends of December, during the Consulate of the Caesars.

• 16. The Same Emperors and Csesars to Eutychia.

If, while you were a minor, you sold a rustic or urban estate (as not the situation of the latter, but its nature, should be considered), and you did this with the authority of your guardian, or, being beyond the age of puberty, you acted without the Decree of the Governor of the province in which the property was situated, by the terms of the Decree of the Senate you cannot be deprived of its ownership or your rights to the same, but an action will lie in your favor for its recovery, together with its crops, and if there are none of the latter, you will be entitled to a personal action. If, however, the purchaser can prove that he could not pay your expenses or discharge your obligations out of his other property, and that besides the money received by way of price has been entirely expended for your benefit, he can, by the aid of an exception oh the ground of bad faith, contest your claim, until you repay him the purchase-money and interest which you have received, as well as the expenses which he has incurred for the improvement of the land.

Given on the sixth of the Ides of April, during the Consulate of the Csesars.

17. The Emperors and the Csesars to Philip.

The terms of the Decree of the Senate do not permit land held in common by minors to be disposed of without a decision of the Governor of the province, for it was long since settled that an alienation of such property cannot be made without a judicial decree, except where the person having the largest share demands a division of the same.

18. The Emperor Constantine and the Cassar Constantine to Severus.

Where minors, either in the name of their father or on their own account, are oppressed with debts, whether they are due to the Treasury or to private individuals, the Constantinian Prsetor, after having examined the case, shall render a decree confirming the sale, if the truth of the allegations should be established.

Given on the twelfth of the Kalends of January, during the Consulate of Probianus and Julian, 322.

TITLE LXXII. WHEN THERE is NO NEED OF A DECREE.

1. The Emperors Severus and Antoninus to Valentinus.

If you can prove that the father of the ward, against whose guardians you have brought suit, consented that the land should be transferred to you if he received the price of the same, the agreement shall be observed. In this case, the authority of the Governor is not necessary, as the interests of the guardians will be protected if the latter conform to the will of the deceased.

Given on the sixth of the Kalends of January, during the Consulate of Antoninus and Geta, 306.

2. The Emperor Aurelian to Pulcher.

It was necessary to ascertain whether the illustrious Saturninus, having appeared before the Emperor, received a special right to make the sale, for the consent of the Emperor takes the place of a decree of the Governor.

Given during the Ides of January ....

3. The Emperors Diocletian and Maximian, and the Csesars, to Stratonicianus.

A rustic or an urban estate can, under no circumstances, be alienated by a minor under the age of twenty-five years without a decree of the Governor, unless a will of his father, or that of the testator whose estate has come into the hands of the minor, is understood to have made provision for such alienation.

Given at Nicomedia, on the twelfth of the Kalends of April, during the Consulate of the above-mentioned Emperors.

4. The Emperor Constantine to the People.

We permit the guardians and curators of persons of every description to sell clothing which is worn, and superfluous animals, without the authority of a decree.

Given on the Ides of March, during the Consulate of Constantine, Consul for the seventh time, and the Caesar Constantius, Consul for the fourth time, 326.

TITLE LXXIII.

WHERE ANYONE, NOT BEING AWARE THAT PROPERTY BELONGS TO A MINOR, PURCHASES IT WITHOUT A DECREE.

1. The Emperor Gordian to Felix.

If she who succeeded to the rights of the guardian, either by an hereditary or a praetorian title, should sell your land as belonging to a ward, the purchaser who knowingly bought it from the heir of the deceased guardian can acquire no defence by prescription through the purchase of another's property. If, however, the heir sold the property as his own, and the purchaser ignorantly bought it as belonging to another, he does not immediately become the owner of the land by delivery, but he can only make use of the defence of prescription for the established time, as you do not deny that you are of lawful age.

Given on the fifth of the Ides of September, during the Consulate of Pius and Pontianus, 239.

2. The Same to Crispina.

If your property has been sold contrary to the Decree of the Senate, bring suit against the possessor of the same, so that if you can prove the fact, you may recover possession, and all the profits may be restored to you, especially if it is established that he who bought it is not a bona fide purchaser.

Given on the sixteenth of the Kalends of . . . , during the Consulate of Gordian, Consul for the second time, and Pompeianus, 242.

3. The Emperors Diocletian and Maximian to Agatha.

Your rustic or urban estates which have been alienated contrary to the Decree of the Senate, without investigation, or the promulgation of any decree, are not legally held even by a second purchaser, unless the time fixed by law has elapsed.

Given at Nicomedia on the Ides of February, during the Consulate of the Csesars.

4. The Same Emperors and Csesars to Alexander.

As the property in question was transferred as against the purchaser to him to whom the property was donated contrary to the Decree of the Senate, and then acquired by a lawful title, it must be ascertained whether the present owner has held said property without dispute and in good faith for the term of ten years, the former owner being present; or whether the latter being absent, the defendant is shown to have been the undisputed possessor for the term of twenty years. If this should be plainly established before you, the claimant must be excluded without delay on the ground of long-time prescription.

Given on the Ides of June, during the Consulate of the Caesars.

TITLE LXXIV.

WHERE A MINOR, AFTER ATTAINING His MAJORITY, RATIFIES AN ALIENATION MADE WITHOUT A DECREE.

1. The Emperor Gordian to Licinia.

You allege that your father's curator sold a rustic estate to the heir of the creditor, or the former guardian of your father, without obtaining a Decree from the Governor, and that your father, having been deceived, ratified the sale. If it should be proved that the land was sold for too low a price, and that your father, having been led into error, consented to the sale through mistake, it is not unreasonable that what is lacking of the proper price should be paid. This should be ordered by the Governor of the province, who must know that if the other party did not act in good faith, he should be given the choice of returning the land with the profits, or of making up the deficiency by paying the money with the lawful interest.

Given on the Nones of October, during the Consulate of Pius and Pontianus, 239.

2. The Same to Alexander.

If your lands have been alienated by your guardian without the authority of a decree, and you have not expressly confirmed the sale, or if the possessor is one in good faith, but has not had possession for a sufficient time to render legal what in the first place was wrongfully

done, the Governor of the province shall order the property to be returned to you.

Given on the seventh of the Kalends of January, during the Consulate of Pius and Pontianus, 239.

3. The Emperor Justinian to Menna, Prsetorian Prefect.

Where the property of minors has been alienated or encumbered without a decree, while they were still in charge of regularly appointed curators, or the said minors, having attained their majority, have been released from their care through the benefit of age, and, after a long silence, have filed a complaint on this ground, so that the illegal alienation or encumbrance has been confirmed by their protracted silence, We decree that a certain time shall be fixed for the establishment of such a confirmation. Therefore We order that if no complaint is made with reference to an alienation or encumbrance of this kind, for the term of five continuous years after the minor has attained his majority, that is to say, after he has reached the full age of twenty-five years, by him who did this, or his heir, the act can, by no means, be revoked under the pretext of the omission of judicial sanction, but shall stand, just as if the property had been legally alienated or encumbered in the beginning by virtue of a lawful decree.

Donations by minors cannot be confirmed by a decree, for even if, after they are entitled to the benefit of age, they should transfer any immovable property to another as a donation (except in the case of one made in consideration of marriage), this cannot be confirmed, unless the donor should acquiesce, and ten years have elapsed after the minor has reached the age of twenty-five years, the parties being present; or twenty years after, if they are absent; so that, in the case of an heir, the time only can be counted which passed in silence after the latter attained his majority.

Given on the Ides of April, during the fifth Consulate of Decius, 529.

TITLE LXXV.

CONCERNING LEGAL PROCEEDINGS TO BE INSTITUTED AGAINST MAGISTRATES.

1. The Emperor Antoninus to Mutianus.

If the magistrates by whom guardians or curators were appointed for you compelled them to stipulate in their own names that they would make good any losses, and if anything was paid they would receive it, and they took sureties for this purpose, the actions which you have brought against your guardians or curators will not annul the obligation against the magistrates for any amount over and above that which is secured.

A praetorian action can be brought by you against the magistrates who appointed the curators, if, after having exhausted all their property, and having recovered what is proved to have been fraudulently

alienated, you have not been satisfied in full. If you bring such a suit, and the magistrates assign to you their rights of action against the sureties whom they have accepted, you can proceed against them, although you have a prsetorian action without the assignment.

Given on the Nones of January, during the Consulate of the two Aspers, 213.

2. The Emperor Alexander to Paternus.

An action is not usually granted against the heirs of a magistrate, when a guardian has not been guilty of gross negligence in providing proper security for his ward.

Given on the third of the Nones of July, during the Consulate of Julian, Consul for the second time, and Crispinus, 225.

3. The Emperor Gordian to Probianus.

If you and your colleague, while discharging the duties of the magistracy, appointed a guardian who was insolvent, without requiring him to furnish proper security, the ward cannot be indemnified except by calling both of you to account, and you will not unjustly demand that a right of action be granted you for your colleague's share of the liability.

Given on the eighth of the Kalends of November, during the Consulate of Pius and Pontianus, 239.

4. The Same to Anuntianus.

Proceedings cannot be instituted against a person who has appointed an insolvent guardian or curator before the property of the latter, as well as that of his surety and his colleagues, has been exhausted, as you have assumed the risk of the administration together, and the ward or minor has not been fully indemnified.

Given during the Ides of March, during the Consulate of Atticus and Prsetextatus, 243.

5. The Emperors Diocletian and Maximian to Eugenia.

With reference to municipal magistrates who have appointed guardians, it is established by a Decree of the Senate proposed by Our Divine Father, Trajan, that if the said guardians, at the end of their administration, should prove to be insolvent, and the entire amount cannot be collected from the surety; an equitable action for the deficiency will lie in favor of the wards against the magistrates.

Given on the seventh of the Ides of December, during the Consulate of the same Emperors.

6. The Emperor Zeno to &lianus, Prsetorian Prefect.

When, as is customary, a decree of appointment was added to the decision of the Pra?tor authorizing the general administration of a curator, it is clear that the appointment is not valid; but it is the fault of the clerk who, in appraising the property of the minor, did not assign to the estate a value of more than two hundred pounds of gold, and accepted security for that amount.

In this instance, the account of the curator should not be called in question, if any injury to the property of the minor is proved to have resulted contrary to the provisions of the law, but legal proceedings should be instituted on the ground of the negligence or fraud of the clerk, who suffered the true valuation of the property of the minor

to be concealed. •..,,„ -> ,_ Given on the fifth of the Kalends of January, during the Consulate

of Basilius.

THE CODE OF OUR LORD

THE MOST HOLY EMPEROR JUSTINIAN.

SECOND EDITION.

BOOK VI.

TITLE I.

CONCERNING FUGITIVE AND MUNICIPAL SLAVES, FREEDMEN, AND ARTISANS ASSIGNED TO DIFFERENT WORKS WHO BELONG TO PRIVATE INDIVIDUALS OR TO THE STATE.

1. The Emperors Diocletian and Maximian to JEmilia.

It is clear that a fugitive slave commits a theft of himself, and therefore that he is not entitled to either usucaption or prescription based upon long time, in order that the flight of slaves may not, for any reason whatsoever, result in loss to their masters.

Given on the Ides of December, during the Consulate of Maximian, Consul for the second time, and Aquilinus, 386.

2. The Same Emperors and Csesars to Pompeianus.

It is the duty of the Governor to grant authority to seek for

fugitive slaves.

Given on the Kalends of May, during the Consulate of the Csesars.

3. The Emperor Constantine to Probus.

If fugitive slaves are captured while on the way to the country of the barbarians, they may either be punished by the amputation of a foot, or they may be condemned to the mines, or any other penalty whatsoever may be imposed upon them.

Without date or designation of consulate.

Extract from Novel 134, Last Chapter. Latin Text. If the nature of the crime requires the loss of a member, under the new law one hand only shall be cut off, and the slave convicted of

theft shall not be put to death, nor shall he lose another member, but he shall be punished in some other way.

Persons are called thieves who commit this offence secretly and without arms; those, however, who employ violence either with or without arms, by entering houses, or by depredations on the highway or the sea, shall be subjected to the penalty prescribed by law.

4. The Emperor Constantine to Valerian.

Whoever harbors a fugitive slave in his house, or on his land, without the knowledge of his master, must surrender him, together with another of the same value, or pay twenty solidi. If he should harbor the same slave for the second or third time, he will be required, in addition to the said slave, to give up two or three others to the master, or the aforesaid valuation of each one of them.

Where minors are guilty of this offence, their guardians or curators are liable for a similar sum. If the guilty party is not able to pay the penalty above-mentioned, he shall be punished according to the discretion of a competent judge.

If a slave falsely stated that he is freeborn, and was hired by anyone, the person who employed him cannot be accused. It is necessary for the slave to be tortured in order to determine whether or not he who received him fraudulently induced him to leave his master, in order that his house or his land might be profited. If it should be disclosed by the examination of the slave that the act was malicious, he who was guilty of it shall be deprived of one of his own slaves who will belong to the Treasury.

Given on the fifth of the Kalends of July, during the Consulate of Gallicanus and Bassus, 317.

5. The Same Emperors to Januarius.

It is established that slaves belonging to the public, who are skilled in certain trades, must remain in their respective towns, and if anyone should induce such a slave to betake himself elsewhere, he must surrender him whom he has instigated to do so, together with another of the same value, and the sum of twelve solidi must be paid by him to the Treasury of the town whose slave he took away. Freedmen, also, who have trades, when induced to leave, shall be returned in the same manner to the city.

If the fugitive slave is not sought for and returned by the efforts of the defender of the city, the said defender shall be required to furnish two other slaves in his stead, nor can he profit by the indulgence of the Emperor, and no sale of the said slave made by him personally or through another will be valid.

Given on the sixteenth of the Kalends of March, during the Consulate of Constantine, Consul for the fifth time, and the Caesar Lici-nius, 319.

6. The Same Emperor to Tiberianus, Count of the Spains. When anyone claims a fugitive slave, and the person having possession of him alleges that he is the owner, for the purpose of evading

the law which establishes a certain penalty for those who conceal fugitive slaves, or he instigates the slave himself to say that he is free, the worthless scoundrel whose status is in question shall immediately be subjected to torture, in order that, the truth having been ascertained, an end may be put to the dispute. This will not only be a benefit to both claimants, but it will also deter slaves from taking to

flight.

Given on the fifteenth of the Kalends of September, during the Consulate of Pacatianus and Hilarianus, 332.

7. The Emperors Valens, Valentinian, and Gratian to Felix, a Man of Consular Rank.

Anyone who conceals a fiscal slave shall not only be compelled to restore him, but also to pay twenty pounds of silver to Our Treasury, by way of penalty.

Given on the eleventh of the Ides of April, during the Consulate of Gratian, Consul for the second time, and Probus, 371.

8. The Emperors Valentinian, Theodosius, and Arcadius to Albinus, Prefect of the City of Rome.

If a slave employed in a workship or in any other public establishment, unmindful of his own condition, should marry a female slave in the house of another, not only himself, but also his wife and children, shall forthwith be returned to their former condition and labor.

Given on the eighth of the Kalends of August, during the Consulate of Timasius and Promotus, 389.

TITLE II.

CONCERNING THEFTS AND THE OFFENCE OF CORRUPTING

A SLAVE.

1. The Emperors Severus and Antoninus to Theogenes.

If any persons have purchased land with your money, under the direction of your slave, you must choose whether you will bring a personal action of theft or one on mandate. For justice will not suffer you, at the same time, to bring a criminal action, and require a bona fide contract to be carried out.

2. The Same Emperors to Merchants.

You demand what is contrary to law when you ask that property which you state has been stolen from you must be paid for by the owners before being returned by you. Therefore, take care to be more cautious in your business transactions hereafter, lest you may not only sustain losses of this kind, but also be liable to suspicion of crime.

Given on the Kalends of December, during the Consulate of Chilo

and Libo, 205.

3. The Emperor Antoninus to Secundus.

If the property which your stepfather stole from you has not yet been dedicated to the service of the divine temple, you will be entitled to an action of theft against him.

Given on the sixth of the Ides of September, during the Consulate of Laetus, Consul for the second time, and Cerealis, 216.

4. The Emperor Alexander to Aurelius Herod.

You can bring the suit for corrupting a slave only against him who you allege induced your slave to leave you, if he rendered him more vicious than he formerly was. You can also bring an action of theft against him, if he harbored him after having caused him to take to flight. You are not, by any means, forbidden to bring these actions by an attorney.

Given on the Ides of September, during the Consulate of Alexander, 223.

5. The Same to Cornelius.

What your adversary requires of you, namely, that you should produce the vendor of the property which you acknowledge is in your possession, is in accordance with law; for it is not proper to say that you purchased it from some passerby who was unknown to you, if you wish to avoid suspicion, which should not attach to an honest man.

Given on the third of the Kalends of May, during the Consulate of Maximus, Consul for the second time, and ^Elianus, 224.

6. The Same to Pythidorus.

Anyone who, knowingly, has sold a slave belonging to another, without the consent of the owner, or has given him away, or has disposed of him in any other manner, can in no respect affect the rights of the owner. If he conceals him, or retains him in his possession, he is guilty of theft.

Given on the Kalends of May, during the Consulate of Julian, Consul for the second time, and Crispinus, 225.

7. The Same to Datus.

If he to whom you allege you entrusted money to be given to your mother only paid over a portion of it, and converted the remainder to his own use, he committed a theft.

Given on the Ides of June, during the Consulate of Modestus and Probus, 229.

8. The Same to Valentinus.

The collector of taxes is also liable to an action of theft if, after you have paid the tax which you owed, he, aware that nothing is due from you, takes away your female slave, or sells her. A transaction of this kind does not permit the purchaser to obtain a title to the said

slave by usucaption, and an action for her recovery will lie in your

favor.

Given on the tenth of the Kalends of March, during the Consulate

of Pompeianus and Pelignus, 232.

9. The Emperors Diocletian and Maximian to Edisius.

Whether your slave has been taken from you by theft, or you have been deprived of him by force, even though the said slave may be dead, the responsibility will still attach to the robber or the thief, and either one of them will be liable to the punishment prescribed by law.

Given on the seventh of the Kalends of February ....

10. The Same Emperors and Csesars to Valerius.

If the Governor of the province should ascertain that the slave who was sold was stolen or kidnapped, as the purchaser cannot acquire him by usucaption, on account of the defect in the title, before possession of the slave is returned to his master, Ije must take measures for him to be restored to you, if he should find that you have succeeded to the person to whom he previously belonged.

Without date or designation of consulate.

11. The Same Emperors and Csesars to Demosthenes.

Have recourse to the Governor of the province with reference to the property which you allege in your petition that the stepmother of your ward appropriated, and if he should ascertain that she took it after he in whose behalf you apply has become the owner of the said property, he will not be ignorant that she is liable to the payment of quadruple damages for manifest theft; and if this should not be the case, she should be condemned to pay double damages for non-manifest theft.

Given on the seventh of the Kalends of September, during the Consulate of the Cassars.

12. The Same Emperors and Csesars to Quinta.

The children of a female slave, who were born while she was in possession of a thief, cannot be acquired by usucaption, before they have gone into possession of their owner, and it is established that he who stole the mother will be liable to an action of theft on their account. Therefore, you will not be prevented from making use of an action of theft, as well as a personal action, or one against the possessor for the recovery of the slaves, as the one which includes the penalty can, by no means, deprive you of the employment of the other. For there is no question that in law the action for recovery can be brought at the same time as the criminal action, as even those who have purchased slaves belonging to others, where they were aware of the fact, will be liable to an action of theft.

Given on the Ides of October, during the Consulate of the Csesars.

13. The Same Emperors and Csesars to Domnus. The laws forbid suit to be brought after a theft has been compromised. If, however, you did not compromise, but only a portion

of the property stolen from you was returned, you can bring suit to recover the remainder, or a personal action, or an action of theft, before the Governor of the province.

Given on the Kalends of December, during the Consulate of the Caesars.

14. The Same Emperors and Csesars to Dionysius.

You can bring suit against those who have knowingly received property stolen by a slave, not only as receivers of stolen goods, but you can also bring a penal action of theft against them.

Given on the eighth of the Kalends of January, during the Consulate of the Csesars.

15. The Same Emperors and Csesars to Socrata.

You should not be ignorant that heirs are not under any circumstances liable to the action of theft,1 but you can bring an action in rem against them, with reference to documents which have been stolen and retained.

Given on the third of the Kalends of January, during the Consulate of the Caesars.

16. The Same Emperors and Csesars to Artemidorus and Others.

If he who received your slave for the purpose of furnishing him with provisions should sell him, he commits a theft.

Given on the Kalends of October, under the Consulate of the Csesars.

17. The Same Emperors and Csesars to Colon.

Although ordinary custom does not permit a wife who has been guilty of the crime of plundering an estate to be liable to the action of theft, still, the heirs, who were also the children of the deceased, will be prevented from bringing an action in rem against her, on account of the property belonging to their father's estate, which she has in her possession.

Given on the Ides of December, during the Consulate of the Csesars.

18. The Same Emperors and Csesars to Dionysiodorus. " The terms of the Perpetual Edict set forth that he who has obtained property by shipwreck or fire, or is said to have caused any loss under such circumstances, is liable for quadruple damages, if the action is brought within the available year, but only for simple damages in addition to the penalty already prescribed by law if it is brought after the expiration of a year.

Given at Nicomedia, on the Kalends of January, during the Consulate of the Caesars.

1 "Pcena ex delicto defuncti, hxres teneri non debet."—ED.

NEW CONSTITUTION OF THE EMPEROR FREDERICK HAVING REFERENCE TO THE ABOLITION OF LAWS AND CUSTOMS PROMULGATED AGAINST THE FREEDOM OF THE CHURCH,

COLL. 10.

No matter where ships may approach the land, when they are wrecked by accident or run aground, the vessels themselves, as well as the goods which they contain, shall be preserved for those to whom they belonged before the ships met with this accident; and every custom in violation of this law, no matter in what place it may be observed, is hereby abolished, unless the ships are employed in piracy, or are hostile to Us, or to the Christian name.

Those who violate this Our constitution shall be punished by confiscation of their property, and, if the circumstances demand it, their audacity in disobeying Our mandate shall be repressed by other measures.

19. The Same Emperors and Csesars to Nestiseus.

When a false agent receives a deposit or collects a debt without the consent of the owner, he is guilty of theft, and is liable to be sued for double damages, as well as to an action for non-manifest theft, in addition to being compelled to return the property.

Without date or designation of consulate.

20. The Emperor Justinian to Julian, Prsetorian Prefect.

If anyone should induce a slave belonging to another to steal the property of his master, and bring it to him, and the slave reveals this to his master, and the latter permits him to take the property to the guilty person who has instigated him to steal it, and the former should be found in possession of the said property, the ancient authorities were in doubt as to what action he who had received it was liable, whether to that of theft, or to the one for having corrupted a slave, because he attempted to corrupt him, or whether he is liable to both. Therefore, for the purpose of settling controversies of this kind, We have decided that not only the action of theft can be granted against him, but also the one for having corrupted a slave; for although the slave was not made any worse on this account, still, the advice of the person attempting to corrupt him was given with the intention of impairing his honesty. And just as according to the rule of law, while a theft may not actually be committed, the culprit who handles property against the will of the owner is considered to have stolen it, and should be liable to the action of theft on account of his fraudulent act; so, it is not unreasonable that the action for the corruption of a slave will lie against him on account of his criminality, in order that he may be sued in a penal action, just as if he had actually corrupted the slave, lest, encouraged by impunity, he might attempt to pursue the same course with another slave who could easily be corrupted.

Given on the Kalends of August, during the fifth Consulate of Lampadius and Orestes, 530.

21. The Same to Julian, Prsetorian Prefect.

' The question arose among the ancient authorities, if a slave, whom someone possessed in good faith, should commit theft of the property of others, or of him who had possession of him, whether the latter would be entitled to a noxal action for theft against his true owner, or whether the above-mentioned action could be brought against him by the person against whom the theft was committed. Some authorities, on the assumption that a general rule can be formulated from the ancient laws in favor of a man of this kind, by which he against whom the action of theft is not granted could have a noxal action brought against him, held that this rule was based upon mere conjecture, and that the action of theft could, under no circumstances, include the bona, fide possessor of the slave; and that the noxal action of theft could lawfully be granted to him, if the property was stolen from him, against the true owner of the slave. Hence the bona fide possessor of the slave could, on account of the theft which he had sustained, have a noxal right of action against the owner; even though the slave was proved not to have been in the possession of the latter. He would also be entitled to an action against the true owner, not only for the property which the slave took away while under his control, but also for that which he stole from his bona fide possessor, even if it should be proved that he was not yet under the control of his true owner. This is the interpretation which the authorities conjectured was to be given to the ancient laws.

We, however, examining this point thoroughly, and more in conformity with the truth, have adopted the rule promulgated in the beginning. Therefore, as a bona fide possessor is in possession of the thief as his master, it is reasonable that while he is under his control he should be liable in a noxal action to others, if they had property stolen by the slave, and that he himself should have no right of action against the true owner of the slave, in accordance with the rule that he who is entitled to the action of theft against another cannot himself be liable to one based on the same offence.

Where, however, the bona fide possessor has lost control of the said slave, and he is found in the hands of his true owner, then he himself will, by no means, be liable to the noxal action of theft, but he will have the right to bring a noxal action of theft against the true owner for property which the slave stole when under his control, as well as for any thefts of which he was previously guilty after having been released from the control of his bona fide possessor, and before he came into the possession of his true owner.

Thus, a second time, the case stated conforms to the general rule, for he who has a right of action of theft against the owner cannot himself be held liable to others in the action of theft; and hence the doubt formerly entertained by the ancient jurists, and disclosed by their contrary opinions is disposed of by Our interposition, and a bona fide possessor is entitled to an action during the prescribed term, and is not responsible; while the owner himself at one time is not liable to the action, and at another it can be brought against him.

Moreover, where a man who, while actually free, is, nevertheless, held by another in good faith as a slave, commits a theft, and it should be legally and undoubtedly ascertained that he is free, he can be sued for the theft by him who had possession of him in good faith; and the latter, if the said freeman should steal from a stranger, cannot be sued, but the former must be liable for his own theft, as the general rule promulgated with reference to a slave and for the benefit of one who is not a slave but a freeman, and his own master, is that a noxal action cannot be brought against the latter, and is unknown to our

laws.

Given on the Kalends of October, during the fifth Consulate of Lampadius and Orestes, 530.

22. The Same to John, Prsetorian Prefect.

It is a clear rule of law that, where a theft has taken place, an action will lie in favor of him who is interested in not having had it committed. Where, however, anyone lent another property belonging to himself, and it was stolen, the question arose among the ancient legal authorities whether an action of theft could be brought by the person who received it for his use, against the thief, of course where the latter was solvent; for the reason that the borrower himself was liable to an action of loan b